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HomeMy WebLinkAbout1426ORDINANCE NO. 1426 (2002 Series) AN ORDINANCE OF THE COUNCIL OF THE CITY OF SAN LUIS OBISPO ADDING CHAPTER 1.24 TO TITLE ONE OF THE SAN LUIS OBISPO MUNICIPAL CODE ADOPTING ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Chapter 1.24 is hereby added to Title One of the San Luis Obispo Municipal Code to read as follows: Chapter 1.24 ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES Sections: 1.24.010 Purpose; Adoption of Administrative Guidelines. 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 Notice of Administrative Citation. 1.24.100 Hearing Procedures. 1.24.110 Appeal Decision. 1.24.120 Right to Judicial Review. 1.24.130 Collection of Unpaid Fines. 1.24.010 Purpose; Adoption of Administrative Guidelines. 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. Prior to the implementation of the enforcement policies and penalties stated herein, voluntary compliance approaches, when practical, should first be used in order to educate City property owners and businesses concerning the requirements of this Code and the corrective action necessary to correct a violation of this Code. 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 persons who may receive an administrative citation, to provide direction to City staff for the correct process of issuing a Notice of Administrative Citation, and to establish the proper format of the Notice of Administrative Citation, and for service of 01426 Ordinance No. 1426 (2002 Series) Page No. 2 that Notice in a manner consistent with the requirements of due process (hereinafter referred to as the "Administrative Guidelines "). Such Administrative Guidelines shall be expressly approved by a resolution of the City Council prior to their adoption. 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 uniform construction codes adopted by reference and as amended pursuant to Title 15 of the Code, 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 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. 1.24.030 Definitions. The following definitions apply to the use of these terms for the purposes of this Chapter: A. CODE VIOLATION. Any violation of the San Luis Obispo Municipal Code. B. DIRECTOR. The Department Head, or his or her designee, responsible for enforcing the Municipal Code with respect to his or her Department. C. HEARING ADMINISTRATOR. The person appointed by the City Administrator to serve as the hearing officer for administrative hearings. D. ISSUED. Giving, mailing, or posting a Notice of Administrative Citation to a person where "issuance" is deemed to have occurred on the earlier of the date when a Notice of Administrative Citation is personally served on a person, the date it is mailed to a person by posting in the regular United States mail, or the date it is physically posted on real property where a property related Code violation is occurring. Ordinance No. 1426 (2002 Series) Page No. 3 E. NOTICE OF ADMINISTRATIVE CITATION. An official City Municipal Code violation notice issued to a person(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. In the case of an initial notice, if the violation has not been corrected by a specified date, a civil administrative fine will be imposed. Subsequent notices regarding the same type of violation, within any twelve -month period, may be cause for imposing additional administrative fines without warning. F. PERSON. Any of the following: 1. An individual who causes a Code violation to occur. 2. An individual who maintains or allows a Code 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 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 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 "person" 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 rebuttal 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 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 violations relating to the operation of the business (for example, sign ordinance violations) on that parcel. 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 of this Code, any continuing violation of the San Luis Obispo Municipal Code constitutes a public nuisance. 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. 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 may use the procedures set forth in this Chapter to abate such nuisance as authorized by law. B. NOTICE OF ADMINISTRATIVE CITATION ISSUANCE. The Director may issue a Notice of Administrative Citation for a violation to any person or persons whom the Director deems appropriate if the Director has determined, through investigation, that a violation exists. A person to whom a Notice of Administrative Citation is issued shall be liable for and shall pay to the City the administrative fine or fines described in the Notice of Administrative Citation when due pursuant to the provision of this Chapter. Ordinance No. 1426 (2002 Series) Page No. 4 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, or similar land use approval, that person may be issued a Notice of Administrative Citation and may be held responsible for administrative fines under the provisions of this Chapter. D. CONTINUING VIOLATIONS. 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 of Administrative 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 VIOLATIONS. The City may take into consideration the fact that a person has been previously issued a Notice of Administrative Citation when the City 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 of Administrative 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. F. CONTENTS OF NOTICE. The Director shall generally issue a Notice of Administrative 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 of Administrative Citation issued to persons and alleging a violation of the Municipal Code. G. SERVICE OF NOTICE. The Notice of Administrative Citation and any amended Notice of Administrative Citation shall be served by mail or personal service in the manner provided for in the approved Administrative Guidelines. H. PROOF OF SERVICE. Proof of personal service of the Notice of Administrative Citation shall be documented as provided for in the approved Administrative Guidelines. 1.24.060 Extensions of Time. If the Director receives a request from any person required to comply with a Notice of Administrative Citation, the Director may grant an extension of any fine due date and abatement deadline if the Director determines that such an extension of time will not create or perpetuate imminent danger to the public health and safety. The Director shall have the authority to place reasonable conditions on such an extension. 1.24.070 Amount of Civil Fines. 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 violations occurring within specified periods of time. Ordinance No. 1426 (2002 Series) Page No. 5 B. DUE DATE FOR FINES. Fines are due on the day specified in the Notice of Administrative Citation, or, in the event of an appeal, as determined by the Hearing Administrator. 1.24.080 Manner of Payment - Civil Fines. A. PAID BY MAIL. Fines shall be paid to the City within thirty (30) days of the due date. Payment shall be made by check or money order. The Director, 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 violation. The issuance of a Notice of Administrative Citation or the payment of a fine does not preclude the City from taking any other enforcement or legal action regarding a Code violation that is not corrected, including issuing additional Notices of Administrative Citation or the initiation of criminal or Superior Court civil abatement proceedings. 1.24.090 Appeal of Notice of Administrative Citation. A. APPEAL TO HEARING ADMINISTRATOR. Any person aggrieved by the action of the Director in issuing a Notice of Administrative Citation pursuant to the provisions of this Chapter may appeal such notice to the Hearing Administrator. If no appeal is filed within ten (10) days of the date of issuance of the Notice of Administrative Citation, the order of the Director shall be deemed final. B. CORRECTIONS. Revocation of the Notice of Administrative Citation by the Hearing Administrator or voluntary abatement of the nuisance either on or prior to the Notice of Administrative Citation due date, and any authorized extensions thereto, shall cause the case to be closed. C. CONTESTED APPEALS. To appeal a Notice of Administrative Citation, the person receiving the Notice (the "appellant ") shall file a signed written request following the appeal procedures outlined in the Notice of Administrative Citation. An appellant may contest the Notice of Administrative Citation by denying that 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. D. RECEIPT OF AN APPEAL REQUEST. To be effective, the appeal request must be received by the Director within ten (10) days of the date the Notice of Administrative Citation was issued. Where a request is mailed by the appellant, the request shall be deemed filed on the date received by the Director. The Director is authorized to designate an address on the Notice of Administrative Citation to which such appeal requests shall be mailed. 1.25.100 Hearing Procedures A. APPLICABLE HEARING ADMINISTRATOR. For hearings involving violations of this Code, the Hearing Administrator shall be the person designated by the City Administrator to serve as the hearing officer. B. TIME AND PLACE OF HEARINGS. Hearings shall be conducted by a Hearing Administrator on the date, time and place specified by the City. Ordinance No. 1426 (2002 Series) Page No. 6 C. APPEAL OF RECORDS. The Director shall ensure that the pertinent Notice of Administrative Citation are delivered to the Hearing Administrator in sufficient time prior to the appeal hearing. Before the hearing, the Director shall also make available to the appellant a copy of any additional information concerning the Notice of Administrative Citation which will be provided to the Hearing Administrator. D. PRESENTATION OF EVIDENCE. The appellant shall be given the opportunity to testify and to present evidence relevant to the Code violation specified in the Notice of Administrative Citation. E. USE OF REPORTS AS EVIDENCE. The Notice of Administrative Citation and any other reports prepared by City staff or by the Director concerning a Code violation or attempted correction of a Code violation that are provided to the Hearing Administrator shall be accepted by the Hearing Administrator as prima facie evidence of the Code violation and the facts stated in such documents. 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 Administrator require that there be submitted any evidence, other than the Notice of Administrative Citation, 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 Director. G. CONTINUANCES. The Hearing Administrator may continue an appeal hearing if a request is made showing good cause by the appellant or the Director. 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 or the appellant. If the continuance is granted, a new hearing date shall be set within thirty (30) 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 below. 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 Administrator does not have the authority to issue a subpoena. I. FAILURE TO APPEAR. The failure of the appellant to appear at the hearing, unless the hearing was continued per subsection G above, 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 Administrative Citation. 1.24.110 Appeal Decision. A. NOTICE OF DECISION. After considering all the evidence and testimony submitted at an appeal hearing, the Hearing Administrator shall issue a Notice of Decision within two (2) business days to either uphold or revoke the Notice of Administrative Citation based upon a conclusion of whether a violation occurred. The Notice of Decision shall be mailed within one (1) business day subsequent to the Hearing 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 Administrator. The Hearing Administrator may reduce or cancel the amount of any administrative fine or revoke the Notice of 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. Ordinance No. 1426 (2002 Series) Page No. 7 B. PAYMENT OF FINE AFTER APPEAL DECISION. The filing of an appeal shall suspend any fine assessed in the Notice of Administrative Citation. In the event that the Notice of Administrative Citation is revoked, the fine shall also be revoked. In the event that the Notice of Administrative Citation is upheld, a new compliance deadline and fine due date shall be established by the Hearing Administrator and indicated on the Notice of Decision for the appeal. 1.24.120 Right to Judicial Review. A. APPLICABILITY OF GOVERNMENT CODE SECTION 53069.4. The appellant may seek judicial review of the Hearing Administrator's decision by filing a further appeal with the San Luis Obispo Superior Court within twenty (20) calendar days after the appellant receives a copy of the Notice of 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 Administrator 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. B. FAILURE TO EXHAUST ADMINISTRATIVE APPEAL. No appeal is permitted from a decision where the appellant is deemed to have abandoned the contest of the Notice of 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 Administrator. C. FORWARDING OF RECORDS TO SUPERIOR COURT. The City Attorney or the City Attorney's designee shall forward to the Superior Court within fifteen (15) days of the Court's request, the pertinent Notice of Administrative Citation documents for any case appealed to that Court. If the Superior Court revokes any Notice of Administrative Citation, the City will refund to the appellant the Superior Court filing fee paid by the appellant. 1.24.130 Collection of Unpaid 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 of Administrative Citation and an unpaid administrative fine. 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 person who has unpaid administrative fines totaling $500.00 or more which remain delinquent for thirty (30) days or longer may be suspended by the department which issued the permit or other entitlement. The suspension becomes effective ten (10) 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 may request an appeal/or review hearing pursuant to the specific permit, Ordinance No. 1426 (2002 Series) Page No. 8 license, or other City approval procedures or ordinance if such a request is filed before the ten (10) 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 may pursue the remedies described in this Section whether or not the City is pursuing any other action to terminate an ongoing Code violation that was the basis for an administrative fine 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 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 2. The total amount of the delinquent fine against the property owner must be delinquent for sixty (60) days or more. D. LIEN COLLECTIONS. The 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 Notices of Administrative Citation 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 a Notice of Administrative Citation is served on the person. In addition, the Director shall by first class mail send notice to each property owner at least ten (10) 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 Notice of Administrative Citation for the Code violation is issued to the responsible person and shall become effective upon the recording of a Notice of Lien or Special Assessment by the County Recorder. F. CONTESTING CERTIFICATION OF A LIEN. A 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 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. Ordinance No. 1426 (2002 Seri6b) Page No. 9 SECTION 2. A summary of this ordinance, approved by the City Attorney, together with the names of the Council members voting for and against it, shall be published at least five days prior to its final passage, in The Tribune, a newspaper published and circulated in this City. This ordinance will go into effect at the expiration of thirty (30) days after its final passage. INTRODUCED on the 17th day of September 2002, AND FINALLY ADOPTED by the Council of the City of San Luis Obispo at a meeting held on the 1St day of October 2002, upon motion of Council Member Mulholland, seconded by Council Member Ewan and on the following roll call vote: AYES: Council Member Ewan, Mulholland, and Schwartz, Vice Mayor Marx, and Mayor Settle NOES: None ABSENT: None Mayor Allen K. Settle ATTEST: r Lee Price, C.M.C. City Clerk APPROVED AS TO F RM: G Jeffrey G. Jorgensen, City Attorney 00"' K-- Zi