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HomeMy WebLinkAbout10-06-2015 Item 10 - Proposed Amendments to Chapter 1.24 of the San Luis Obispo Municipal Code Meeting Date: 10/6/2015 FROM: J. Christine Dietrick, City Attorney Prepared By: Anne M. Russell, Interim Assistant City Attorney SUBJECT: PROPOSED AMENDMENTS TO CHAPTER 1.24 OF THE SAN LUIS OBISPO MUNICIPAL CODE REGARDING APPEALS OF ADMINISTRATIVE CITATIONS, CHAPTER 15.02 (CHAPTER 1.24 TO SUPERSEDE CONFLICTING ADMINISTRATIVE CITATION AND REVIEW PROVISIONS OF BUILDING CONSTRUCTION AND FIRE PREVENTION REGULATIONS), CHAPTER 1.20, AND ADDITION OF NEW CHAPTER 2.30 (CREATE ADMINISTRATIVE REVIEW BOARD) RECOMMENDATION Introduce an ordinance adopting proposed amendments to Chapter 1.24 to establish parallel, but mutually exclusive, administrative citation appeals review processes, as well as Chapter 15.02 and Chapter 1.20 to clarify that Chapter 1.24 prevails over any conflicting administrative citation or review processes in Title 15 (the City’s Building Construction and Fire Prevention Regulations) or the City’s general appeals provisions, and adding new Chapter 2.30 to create the Administrative Review Board (Attachment A). REPORT-IN-BRIEF On January 7, 2014, and August 19, 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; and 2) who should conduct the administrative review. The City Council directed staff to revise the appeals program to provide two levels of administrative review, as described by the City Attorney, 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 decision of either board would be final and 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 qualified volunteer hearing officers, if possible. The City currently benefits from the volunteer services of one such hearing officer, who staff would intend to retain, while recruiting for additional hearing officers to ensure availability for anticipated increases in appeals. Subsequent to those meetings, the council adopted its rental inspection program. The rental inspection program will likely increase the number of code violations enforced through administrative citations, and related appeals and demands on staff and hearing officers’ time. 10 Packet Pg. 65 Moreover, due to the focus of the program on building and safety (Title 15) compliance, most administrative citations issued from that program are likely to involve Title 15 violations. Given that context and further input from the Board of Appeals, and input from the city’s current volunteer hearing officer that he does not feel qualified to or have an interest in hearing Title 15 appeals, city staff reevaluated the proposed two tier review system as it relates to citations issued for Title 15 violations. Thus, the proposed amendments reflect a slightly modified approach to review of Title 15 citations, as well as provisions permitting appellants of other types of administrative citations an “election of remedies” option that would allow a lesser level of city administrative review for those appellants not wishing to challenge city action by writ. Staff first looked at the type and frequency of appeals of administrative penalties that require a more formal hearing and detailed administrative record. The vast majority of challenges to the city’s final decision on administrative citations proceed under the appeal provisions of Government Code Section 53069.4, which authorizes the Superior Court to conduct a de novo review of city hearing officer decisions, and does not require an extensive administrative record. However, at least one court has held that the appeal provisions in Government Code section 53069.4 are not the exclusive means by which a person may challenge the city’s final decision, and that challenge by administrative writ action under the Code of Civil Procedure is also available. To defend against a writ action, the city’s decision must be supported by a more extensive decision, with written findings of fact supported by specified evidence in the record, and a better administrative record. Therefore, staff is proposing changes to Chapter 1.24 to allow appellants to choose at the outset one of two appeal processes, each of which will result in a different form of decision and a different method to challenge the final city decision in court. Each process produces a final decision after one hearing, instead of two, under the two tier system. Once chosen, the appeal process is final. The first appeal process provides a streamlined, less formal appeal of an administrative citation to a hearing officer. This process would handle the majority of appeals. There is a 10 day period to render a written decision, followed by a 20 day period to appeal directly to the Superior Court and have a de novo review conducted by a Superior Court Commissioner, pursuant to Government Code Section 53069.4. The written decision would not need to contain extensive findings because the Court Commissioner would be reviewing the entire action anew, with an opportunity for both the appellant and the issuing Police Officer or other City staff person to appear before the Commissioner and raise all issues they wish the Commissioner to consider. The objective is to reduce the burden on the volunteer hearing officers and provide appellants with an expedited appeal process that does not require disproportionate City resources or appellant time. If a person chooses to proceed via this expedited hearing officer process, the person could not later try to challenge the city by writ. The failure to request appeal through the more formal process with more comprehensive hearing before the Administrative Review Board would be deemed a failure to exhaust administrative remedies, and would preclude court jurisdiction for review by writ. The second appeal process provides for a more formal appeal of administrative citations to either the Construction Board of Appeals (for all violations of Title 15) or to the Administrative 10 Packet Pg. 66 Review Board (for all non-Title 15 violations), followed by either a writ action filed under provisions of the Code of Civil Procedure and its timelines, OR a de novo review by the Superior Court. The written decision would be more extensive, the Boards would be advised by legal counsel during the appeals process and in the preparation of findings and decisions, and more time (30 days) would be given the board to prepare a final decision. There are timelines and procedures under the Code of Civil Procedure governing writ actions with the Superior Court that differ from those governing appeals under Government Code Section 53069.4. If the City Council agrees with the proposed changes to Chapter 1.24, the creation of the Administrative Review Board, and the amendment to Title 15 to have the Chapt er 1.24 administrative citation and review procedures supersede any conflicting ones in the building construction and fire prevention regulations, then the council should introduce the ordinance. City Staff will subsequently: 1) bring forward the resolutions necessary to amend existing administrative enforcement guidelines consistent with the amended ordinance, to amend the existing bylaws for the Construction Board of Appeals, and draft bylaws for the ARB; 2) work with the City Clerk to recruit additional volunteer hearing officers and ARB members; and 3) finalize an administrative hearing training program for hearing officers, ARB members and Board of Appeals 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. 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 danger, a city cannot immediately impose an administrative penalty for violations of building, plumbing, electrical and other similar structural or zoning regulations (generally violations of Titles 15, 16 and 17) unless the city has provided a reasonable period of time to remedy the violation. However, for other violations of the municipal code, (such as for noise, unruly parties), an administrative citation may be effective immediately without a reasonable opportunity to correct, although in most instances a warning is given first. Currently, the City’s practice is to attempt to educate a property owner either verbally or with a door hanger regarding observed violations. If the violation is not abated voluntarily, then staff sends a formal notice of violation/notice to correct. If the violation is still not abated, then an administrative citation is sent. As part of the upcoming fee study process, staff will consider whether the imposition of a code enforcement fee is appropriate in circumstances where remedial action is required and is not taken promptly following a decision to uphold an administrative citation. Proposed changes to Chapter 1.24 provide that a notice to correct (or a notice of violation of) a code violation involving building and zoning regulations that do not constitute an immediate danger to health or safety be given at least 10 days before the effective date of the administrative citation fine, if served concurrently, in order to comply with Government Code Section 53069.4. If the violation is corrected within that period, the administrative citation does not become 10 Packet Pg. 67 effective and no administrative fine is due. If an alleged violation is not remedied, the administrative citation becomes effective 10 days after notice and a fine will be assessed by the City at least 10 days after the effective date of the citation, unless the citation is timely appealed within 10 days of the citation effective date. Subsequent policy changes to implement the ordinance will ensure that City practices are uniformly consistent with adopted policies and that staff has sufficiently detailed guidance on the issuance of administrative citations. Building and zoning regulations that constitute an immediate danger to life or safety, together with all other code violations (such as noise, public urination, unruly gatherings, etc.) could be served with an immediate administrative citation and fine, subject to appeal within 10 days of issuance. Feedback from the Construction Board of Appeals and Issuing City Departments On July 29, 2014, City staff sought feedback from the Construction Board of Appeals on the proposed changes to Chapter 1.24, , and a revision of the Board’s bylaws to better reflect an expanded role, if Council approves 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. Upon further review, City staff is concerned that most hearing officers would not be qualified to decide issues arising under the complex building codes, and would decline to serve if required to do so. Due to the nature of building and safety code violations and the process by which such violations must be remedied in close coordination with the Building Division, there generally will be significant interaction between property owners and City staff and significant review by both the Chief Building Official and the Community Development Director prior to reaching the point where an unresolved violation or citation would come before the Construction Board of Appeal for review. Additionally, members of the Board of Appeal expressed disapproval of the process amendments as originally proposed as too much process or too “bureaucratic”, which was echoed to some extent during Council discussion of the proposal. Consideration of that feedback led to the current draft ordinance, which defines clear paths of review for Title 15 and non-Title 15 violations and eliminates the second level of review. The Board acknowledged the need for a defensible record of City action and a uniform process for review, as well as Council’s authority to broaden the scope of the Board’s jurisdiction to specify its role in the review of administrative citations appeals, 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 final decision maker for administrative citation review. The Board endorsed and Council adopted amendments earlier this year specifying the role of the Board in reviewing administrative citations, but minor additional amendments may be necessary for clarity depending on Council’s actions on these proposed amendments. The changes to the administrative citation appeals program divides the more formal administrative review between advisory bodies based on the nature of the violation. The amendments maintain the Construction Board of Appeals current jurisdiction and clarify that its jurisdiction includes review of administrative citations for Title 15 code violations (housing, building and fire code violations), and non-title 15 violations related to Title 15 violations. Additionally, the amendment creates a separate advisory body to hear appeals of all other 10 Packet Pg. 68 administrative citations, the review of which does not require the same level of technical qualifications or expertise. Reviewing the Administrative Citation Chapter 1.24 amendments The proposed changes to Chapter 1.24 set up a two mutually exclusive, parallel administrative review processes based on the choice of the appellant. The first process is to be conducted by a qualified hearing officer, referred to as the Hearing Officer (formerly Administrator) in Chapter 1.24. The procedures for the Hearing Officer 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 in person and directly to a volunteer hearing officer. City staff is typically not present; instead, City staff forwards any documentation of the administration citation to the Hearing Officer to consider. The Hearing Officer then determines if the administrative citation should be upheld or revoked. The Hearing Officer does not have the authority to reduce the fine amount per violation. Section 1.24.120 A proposes some clarification of the Hearing Officer’s discretion in the event that an administrative citation contains multiple code violations. A Hearing Officer 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 Officer the discretion to alter the fine amount for violations that are upheld. The second process is review by either the Construction Board of Appeals or a newly created Administrative Review Board. Section 1.24.100 B specifies the body that will conduct the review. The Construction Board of Appeals will hear all appeals o f administrative citations issued for violations of Title 15 of the City’s Municipal Code. The Administrative Review Board will hear all appeals of non-Title 15 violations where the person may wish to challenge the citation or any related city action by writ. The decision in these hearings, unlike the hearing officer procedure, must contain certain minimum requirements, as set forth in Section 1.24.130 A and requires the hearing to be recorded. Chapter 1.24 will be amended to make explicit that the decision by either the hearing officer, the Construction Board of Appeals or the Administrative Review Board is final and may not be appealed to the City Council. The proposed amendment to Section 1.20.20 also clarifies there is no appeal to the City Council regarding administrative decisions under Chapter 1.24. This permits the Council to be included in staff communications regarding the case at early stages of the process and to engage in discussions with residents and property owners receiving notices of violations in cases where there may be high level community and Councilmember interest, without compromising due process requirements for a neutral decision maker. Appellants who disagree with final decisions of the respective boards may pursue judicial review in one of two ways as discussed above, based on their choice when the appeal of the administrative citation is filed. 10 Packet Pg. 69 Finally Section 1.24.090 B 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 public hearing on 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 1.24.090 B provides the City Manager with the authority to consolidate review of both the permit action and the administrative citation in this type of situation and send both aspects of the enforcement to the Planning Commission for review/appeal. Section 1.20.20 amendments Section 1.20.20 Right to Appeal is proposed to be amended to add a subsection D, to clarify there is no right of appeal to the council from any administrative decision made by a city official under Chapter 1.24. Chapter 2.30 amendments Chapter 2.30 would be added to create a 3 member Administrative Review Board appointed by the Council for a two year term, with a maximum of two consecutive terms. Members of the board could simultaneously serve on other city advisory bodies, such as the Construction Board of Appeals pursuant to the Council Policies and procedures Section 6.7.2.5. Typically, a member of one advisory body cannot serve as a member of another advisory body. However, 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 Appeals or Planning Commission, but if members of those boards are not interested in serving on the Administrative Review Board, then Council has the ability to appoint members from the general public who apply and qualify for the positions. Chapter 15.02 Amendment Chapter 15.02 will be amended to add Section 15.02.015 to clarify that in the event of conflict between Chapter 1.24 and any of the city’s building, construction or fire prevention codes, (the 13 codes adopted in Chapter 15.02.010) with regard to administrative citations and review, Chapter 1.24 shall prevail. There is a similar provision in Section 1.24.010 C. Because of potentially conflicting appeal procedures and timelines in some of the adopted codes (Uniform Housing Code Uniform Code for the Abatement of Dangerous Buildings and the International Property Maintenance Code- all 30 days to appeal,) and the absence of specific appeals procedures and timelines in most of the codes, these amendments make explicit that Chapter 1.24 provisions prevail with respect to administrative citations and related appeals. These 10 Packet Pg. 70 amendments further the objective of establishing a clear and consistent appeals process and timelines for both staff and appellants. CONCURRENCES Community Development, Fire, Police Department and Utilities have been consulted throughout the process of developing the amendments and 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 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. Minor costs associated with recording the audio portions of all hearings should be anticipated. ALTERNATIVES 1. Direct staff to return with the originally proposed two tier review process. 2. Delete Title 15 violations from Chapter 1.24 and create new procedures solely for Title 15, title 16 and Title 17 violations of the municipal code 3. Direct staff to make any changes council wishes to consider. Attachments: a - draft Ordinance b - Legislative draft of proposed amendments to Muni Code Ch. 1.24 10 Packet Pg. 71 O ______ ORDINANCE NO. _____ (2015 SERIES) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN LUIS OBISPO, CALIFORNIA, REPEALING AND REPLACING CHAPTER 1.24 (ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES) OF TITLE 1, AMENDING SECTION 1.20.020 OF TITLE 1, AMENDING CHAPTER 15.02 (BUILDING CODES ADOPTED) TO ADD SECTION 15.02.015 OF TITLE 15 (CHAPTER 1.24 TO SUPERSEDE CONFLICTING ADMINISTRATIVE CITATION AND REVIEW PROVISIONS OF BUILDING CONSTRUCTION AND FIRE PREVENTION REGULATIONS), AND ADDING CHAPTER 2.30 (ADMINISTRATIVE REVIEW BOARD) TO TITLE 2, OF THE SAN LUIS OBISPO MUNICIPAL CODE NOW, THEREFORE, BE IT ORDAINED by the Council of the City of San Luis Obispo as follows: SECTION 1. Chapter 1.24 of the San Luis Obispo Municipal Code is hereby repealed and replaced to read as follows: Chapter 1.24 ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES 1.24.010 Purpose—Adoption of civil administrative fines and administrative citation guidelines and appeal procedures. 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 Director review of notices/Consolidation with other enforcement matters. 1.24.100 Appeal of administrative citations. 1.24.110 Hearing procedures for appeal of administrative citations. 10.a Packet Pg. 72 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 2 1.24.120 Decision by hearing officer. 1.24.130 Decision by Administrative Review Board or Construction Board of Appeals. 1.24.140 No appeal to City Council/Right to judicial review. 1.24.150 Collection of unpaid fines. 1.24.010 Purpose-Adoption of civil administrative fines and administrative guidelines and appeal procedures. 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. The city shall prepare, promulgate, and update as necessary, administrative citation and appeals 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 an administrative citation, and to establish the proper format of the administrative citation, and for service of that administrative citation in a manner consistent with the requirements of this Chapter, due process and any other applicable law (hereinafter referred to as the “administrative citation guidelines”). Such administrative citation guidelines shall be expressly approved by a resolution of the city council prior to their adoption. (Ord. 1576 § 1 (part), 2012) C. Effect on Title 15 Violations. The hearing requirements and procedures set forth in this chapter, as they relate to the administrative review of administrative citations, shall supersede any conflicting provisions within the municipal code or any of the codes adopted by San Luis Obispo Municipal Code section 15.02.010 and amended by San Luis Obispo Municipal Code section 15.04.010 and following. 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 10.a Packet Pg. 73 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 3 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. (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 levying or assessing a civil fine as set by city council resolution as a penalty for a code violation. B. Administrative Review Board. Adjudicatory body appointed by the city council responsible for conducting administrative hearings of appeals of administrative citations issued for municipal code violations, excluding those issued for violations of Title 15 and for non-Title 15 violations issued in conjunction with a citation for a Title 15 violation, where the decision may be challenged by writ to the Superior Court. Members of this board may serve sim ultaneously on another advisory body pursuant to San Luis Obispo Council Policies and Procedures section 6.7.2.5. C. Code Violation. Any violation of the San Luis Obispo Municipal Code or any code adopted by reference therein. D. Construction Board of Appeals. Adjudicatory body appointed by city council responsible for conducting administrative review of appeals of administrative citations issued for all violations of Title 15, as well as appeals of administrative citations for non-Title 15 code violations issued in conjunction with the Title 15 violation(s). E. Director. The City Manager or department head, or his or her designee, responsible for enforcing the municipal code with respect to his or her department on behalf of the city. F. Effective Date of Administrative Citation. The date specified in the administrative citation as the effective date. Generally the effective date will be the date the administrative citation is issued. However, for code violations of building, plumbing, electrical or other similar structural or zoning regulations that do not create an immediate danger to health or safety, the effective date will be as specified in the notice to correct, which date shall not be less than ten days after the notice to correct is issued. G. Fine Payment Due Date. The date the administrative citation fine is due. It shall be at least ten (10) days after the effective date of the administrative citation. 10.a Packet Pg. 74 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 4 H. Hearing Officer. The person appointed by the city attorney, or his or her designee, to serve as the hearing officer for conducting administrative hearings of appeals of administrative citations issued for municipal code violations, excepting those issued for violations of Title 15 and for non-title 15 violations issued in conjunction with a citation for a Title 15 violation, where the decision may be appealed directly to the Superior Court pursuant to Government Code Section 53069.4 for a de novo hearing. I. Issued. Giving, mailing, personally serving or posting a notice to correct, notice of violation and/or an administrative citation to a person. The notice or administrative citation shall be deemed “issued” on the earliest of the date on which the notice and/or 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. If the property is physically posted, notice shall also be given by mail as soon as possible. J. Notice to Correct. A notice of code violation that pertains to continuing building, plumbing, electrical, or other similar structural or zoning violations, that do not create an immediate danger to health or safety. The notice to correct usually serves as a courtesy notice and opportunity to correct or consult with staff regarding the alleged code violation, and does not serve as a final order, decision or determination made by the chief building official or fire official. The notice to correct may be served concurrently with a notice of violation and/or administrative citation; provided, the administrative citation shall have an effective date at least ten da ys after the date the notice to correct is issued. K. Notice of Violation. A written notice issued to a person(s) advising 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, or individual behavior, which is served concurrently with an administrative citation assessing a civil fine as set by city council resolution as a penalty for a municipal code violation Subsequent notices regarding the same type of violation, within any twelve-month period, may be cause for imposing additional administrative fines without warning. The notice of violation must be issued at least ten days prior to the effective date of an administrative citation if it pertains to building, plumbing, electrical, structural, zoning, storm water or other violation that does not create an immediate danger to health or safety. L. 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. 10.a Packet Pg. 75 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 5 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 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 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. (Ord. 1576 § 1 (part), 2012) 6. An individual who is an owner of real property where a violation of the city’s noise or unruly gathering ordinance(s) occurs after notification of a previous violation, in accordance with Chapters 9.12 and 9.13 of the municipal code. 1.24.040 Maintaining public nuisances prohibited. Pursuant to the authority of California Government Code Section 38771 and municipal code Sections 1.12.070 and 1.12.080, 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. (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 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 may issue a notice of violation, notice to correct and/or administrative citation for a violation to any person or persons if the director has determined, through investigation, a violation exists. A person to whom an administrative citation is issued shall be liable for and shall pay to the city the administrative fine or fines described in the citation when due pursuant to the provisions 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 10.a Packet Pg. 76 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 6 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 violation, notice to correct, and/or administrative 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. Certain provisions of this code, including but not limited to those relating to noise and unruly gatherings, provide that each hour that a violation exists shall be a separate and distinct violation. An administrative citation may charge a violation for one or more days or hours, as applicable, on which a violation exists and for violation of one or more applicable code sections. E. Prior and Repeat Violations. The city may take into consideration the fact that a person has been previously issued an uncorrected notice of violation and/or a sustained 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 violation and/or 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 .Repeated violations of the same code provision within any twelve month period may result in the issuance of an administrative citation(s) imposing additional administrative fines without a notice of violation and/or notice to correct preceding the citation. F. Contents of Notice of Violation, Notice to Correct and/or Administrative Citation. The director shall generally issue a notice of violation, notice to correct and/or administrative citation to person(s) responsible for a code violation as set for in section 1.24.030(L).The administrative citation 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 violation and/or administrative citation issued to persons and alleging a violation of the municipal code, but must, at a minimum, inform the responsible person of the nature of the violation charged, any right to correct the violation, and/or the right to appeal any citation, as well as the process by which to verify to the city the correction of violation(s) and/or the process to appeal citations. G. Service. The notice of violation, notice to correct and/or administrative citation and any amended notice of violation and/or administrative citation shall be served by mail or personal service or posted on the property where the code violation is occurring in the manner provided for in the approved administrative citation guidelines. H. Proof of Service. Proof of personal service of the notice of violation and/or administrative citation shall be documented as provided for in the approved administrative citation guidelines. (Ord. 1576 § 1 (part), 2012) 1.24.060 Extensions of time. 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 an imminent dange r to the 10.a Packet Pg. 77 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 7 public health and safety. The 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. 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. The schedule may include escalating fine amounts for repeat code violations occurring within specified periods of time. B. Due Date for Fines. Fines are due as specified in the administrative citation or, in the event of an unsuccessful appeal, as determined by the hearing officer, Administrative Review Board, or Construction 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 on or before 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 an 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 administrative citations or the initiation of criminal or civil abatement proceedings. (Ord. 1576 § 1 (part), 2012) 1.24.090. Director review of notices /Consolidation with other enforcement matter A. Within five days of issuance of a notice to correct/notice of violation, a person receiving such notice(s) and citation may request in writing that the director review a contested notice to correct and/or notice of violation. The director, or his or her designee, shal l review all contested notices prior to the effective date of an administrative citation. The director shall have the authority to modify or rescind any contested notice that he or she finds was issued in error based on the code section noticed or other information provided by the noticed person. If the director does not modify or rescind any contested notice or fails to take any action by the effective date of the administrative citation, the notice and citation, and deadlines stated in each, remain in full force.There is no separate right to appeal from the director’s review or determination on a notice of correction or violation, but any assertions of error or challenges to the Director’s review or determination may be raised as part of any appeal from an administrative citation pursuant to section 1.24.100. B. If an administrative citation is issued in conjunction with a related city enforcement action and the other action requires review by another advisory body (i.e., the planning commission) or city council, the city manager, or city manager’s designee, in his or her sole discretion, may consolidate review of the administrative citation with the review of the other related action(s), 10.a Packet Pg. 78 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 8 and refer review of all related matters to the body with jurisdiction over the violation requiring the highest level of review. 1.24.100 Appeal of administrative citations A. Appeal. Any person aggrieved by the action of the director in issuing an administrative citation pursuant to the provisions of this chapter may appeal such citation. To appeal an administrative citation, the appellant shall file a signed written appeal that must be received by the city clerk within ten (10) days of the effective date of the administrative citation. The request for appeal shall be deemed filed on the date received by the city clerk. If no appeal is filed within ten days of the effective date of the administrative citation, the administrative citation shall be deemed final. B. Appeal Process 1. Title 15 violations (building, plumbing, housing, fire code, etc.). For administrative citations for violations of Title 15 and all non-Title 15 violations issued in conjunction with violations of Title 15, the appeal shall be to the Construction Board of Appeals, with a right to appeal either directly to the Superior Court pursuant to Government Code Section 53069.4 or to petition for a writ to the Superior Court. 2. Election of appeal process for non-Title 15 violations. For all other administrative citations not eligible for appeal to the Construction Board of Appeals, an appellant may elect either of the following: (a) Where an appellant does not wish to challenge the administrative citation or any final city action related to the citation in court by any writ action, an appellant may elect an expedited appeal process to a city hearing officer, whose final decision may be appealed directly to the Superior Court for de novo review pursuant to Government Code Section 53069.4. In the event an appellant wishes to pursue any writ action against the city, the appellant shall be required to exhaust the administrative review requirement set forth in Section 1.24.100 B.2 (b) below. Failure to proceed in accordance with section 1.24.100 B 2 (b) shall constitute a failure to exhaust administrative remedies for purposes of any subsequently filed writ action related to the administrative citation or any related city action appealed under this section. (b) Where an appellant wishes to challenge the administrative citation or any final city action related to the citation in court by any writ action, such appeal shall be made to the Administrative Review Board to ensure preparation of an adequate administrative record. The decision of the hearing body may be appealed either directly to Superior Court for de novo review pursuant to Government Code Section 53069.4 or the appellant may file a petition for a writ to the Superior Court. For purposes of writ review, the decision of the Administrative Review Board shall be final and the completed appeal to the Administrative Review Board shall satisfy administrative exhaustion requirements of the City. 10.a Packet Pg. 79 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 9 (c) Only one appeal process may be chosen, and once chosen, the election is final. C. Contents of Appeal. The written appeal shall state the following information: 1. A caption setting forth the names, addresses, phone numbers and other contact information appellants wish city to have, of all appellants participating in the appeal. 2. A brief statement setting forth the interest of each of the appellants, either as the recipient of the notice of violation and administrative citation, or the legal interest of each in the building or property that is the subject of the notice of violation and administrative citation. 3. A brief statement describing: (a) the specific notice(s) of violation and administrative citation(s) appealed, by date of notice of violation and administrative citation, address of property cited or location where an individual was cited, and municipal code violations cited, (b) whether all or only specified code violations are being appealed, (c) why the appellant is appealing the notice of violation and administrative citation, and why the notice of violation and administrative citation should be revoked, modified or otherwise set aside. 4. For non-Title 15 code violations, pursuant to Section 1.24.100 B, a statement whether the appellant elects either to proceed with a hearing officer (if no writ will be sought) or to the Administrative Review Board (if the appellant intends to challenge city action by writ). For Title 15 violations, and non-Title 15 violations issued in conjunction with a Title 15 violation, the appeal shall be scheduled by staff to be heard by the Construction Board of Appeals. Failure to request hearing before the Construction Board of Appeals or Administrative Review Board within the time for the filing of an appeal will constitute a failure to exhaust administrative remedies for purposes of any subsequently filed writ action. 5. A statement that all of the matters alleged in the appeal are true, followed by the signature(s) of each appellant(s), and one official mailing address for the appellant(s) to receive further notices from city relating to the appeal. 1.24.110 Hearing procedures for appeals of administrative citations A. Applicable Hearing Officer or Board. In accordance with the procedures set forth below, after receipt of a timely filed appeal, the following shall hear the appeal: 1. For appeals of administrative citations issued for violations of Title 15, and non -Title 15 violations issued in conjunction with a Title 15 violation, the Construction Board of Appeals shall hear the appeal. 10.a Packet Pg. 80 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 10 2. For appeals of administrative citations outside the jurisdiction of the Construction Board of Appeals in subsection 1.24.110 A.1 above, where the person elects to have the right of appeal for a de novo hearing in the Superior Court under Government Code Section 53069.4, or has failed timely to elect to have the Administrative Review Board hear the appeal, the hearing officer shall hear the appeal. The hearing officer shall be the person designated by the city attorney to serve as the hearing officer. 3. For appeals of administrative citations outside the jurisdiction of the Construction Board of Appeals in subsection 1.24.110 A.1 above, where the appellant may wish to challenge city action by writ, and timely elects to appeal to the Administrative Review Board , the Administrative Review Board shall hear the appeal. 4. For appeals of administrative citations outside the jurisdiction of the Construction Board Appeals in subsection 1.24.100 A.1 above, if the person fails to request a hearing before the Administrative Review Board, t, the hearing officer shall hear the appeal. B. Time and Place of Hearings/Challenge of Hearing Officer for Cause. Hearings shall be conducted by a hearing officer, the Administrative Review Board or Construction Board of Appeals, as applicable, on the date, time and place specified in writing by the city and delivered to the appellant. Such date shall not be less than ten (10) days or more than sixty (60) days from the date the appeal was filed with the city clerk. In the hearing notice, the city shall identify the hearing officer or members of the Administrative Review Board or Construction Board of Appeals hearing the appeal. An appellant may challenge a hearing officer or member(s) of the Administrative Review Board or Construction Board of Appeals from hearing their appeal, but only for good cause, and the reasons shall be specified in writing received by the director within ten days after the date of mailing of the notice .The fact that a hearing officer or member of the Administrative Review Board or Construction Board of Appeals has conducted a previous appeal hearing involving the person shall not constitute good cause. The director shall notify the challenged hearing officer or member(s) of the Administrative Review Board and give the challenged officer the opportunity to disqualify himself or herself. If he or she chooses not to disqualify, he or she shall do so in writing documenting the reasons why disqualification is not required. The appellant shall be notified of the challenged officer’s decision, and the hearing shall proceed as scheduled. The person’s challenge and the decision not to disqualify shall become part of the administrative record. If the hearing officer disqualifies himself or herself, the city attorney shall appoint another hearing officer. If a member or members of a board disqualifies(y) himself or herself, the hearing shall proceed with the remaining member(s) and a hearing officer(s) appointed by the city attorney to replace each disqualified member. C. Appeal of Records. The director shall ensure that the administrative citation and any supporting documentation is delivered to the applicable hearing officer or board in sufficient time prior to the appeal hearing. Before the hearing, the director shall also make available to the 10.a Packet Pg. 81 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 11 appellant a copy of any additional information concerning the administrative citation which has been or will be provided to the hearing officer or board. 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 administrative citation. E. Use of Reports as Evidence. The administrative citation and any documents, exhibits, reports or other materials prepared by city staff or by the director concerning a code violation or an attempted correction of a code violation that are provided to the applicable hearing officer or board shall be accepted by the hearing officer or board as prima facie evidence of the code violation and the facts stated in such documents. F. Witnesses/Additional Evidence/Submission of Written Evidence by Appellant who does not Appear. Neither city staff nor any other representative of the city shall be required to attend the appeal hearing, nor shall the hearing officer nor applicable board require that there be submitted any evidence, other than the administrative citation and documentation relating to the citation that city relied on in issuing the 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. If the appellant has communicated that he or she does not intend to appear at the scheduled hearing, but submits written evidence to the hearing officer or board and the director at least ten (10) days prior to the hearing, the hearing officer or board may consider that evidence. Any additional evidence prepared by city staff may also be considered by the hearing officer or board, provided that it has been issued to the appellant, by certified mail, at least five (5) days prior to the hearing. G. Continuances. The applicable hearing officer or board may continue an appeal hearing if a request is made showing good cause by the appellant or the director. Except in case of medical or other emergency, all continuance requests shall be made by a written request received by the applicable hearing officer or board from the director or the appellant within five days of the date of the written notice advising of the time, date and place of hearing. 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, and the appellant has not presented any written evidence pursuant to Section 1.24.110 F above, the request(s) shall be deemed abandoned in accordance with subsection J of this section. H. Rules of Evidence. The appeal hearing shall be conducted informally and the legal or formal rules of evidence need not be followed. I. No Subpoena Power. The hearing officer, the Administrative Review Board and/or the Construction Board of Appeals do not have the authority to issue a subpoena. J. Failure to Appear. The failure of the appellant to appear at the hearing, unless the hearing was continued per subsection G of this section, or unless the appellant has submitted written evidence per subsection F, shall constitute an abandonment of the appeal, and shall constitute a failure to 10.a Packet Pg. 82 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 12 exhaust administrative remedies concerning the violations set forth in the administrative citation. (Ord. 1576 § 1 (part), 2012) K. Recordation of Board Hearings. The audio portion of every hearing before the Construction Board of Appeals or the Administrative Review Board shall be recorded. Any party to the hearing may, at their own expense, also record such hearings by court or other reporter or video recording, or other means, provided the recording method does not interfere with the conduct of the hearing. Any party recording the hearing by any means shall make a copy available to any other party upon request and payment of reasonable duplication cost. L. Additional Hearing Procedural Requirements. Any additional procedural requirements for hearings may be specified in the administrative citation and appeals guidelines. 1.24.120 Decision by Hearing Officer A. Decision by hearing officer. After considering all the evidence and testimony submitted at an appeal hearing, the hearing officer shall issue a written decision within ten business days to either uphold or revoke the administrative citation based upon a conclusion of whether the violation occurred. If an administrative citation charges two or more code violations, the hearing officer may uphold all violations, or uphold some violations but not all violations, or dismiss some or all violations. The hearing officer does not have the authority to reduce or modify a fine for a violation that is upheld on appeal. If a violation is not upheld, the administrative citation shall be revoked. 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. The failure by the appellant to appear at the appeal hearing shall be noted on the notice of decision by the hearing officer. The decision of the hearing officer shall be final. B. Payment of Fine after Appeal Decision. The filing of an appeal from a decision by the hearing officer shall suspend any fine assessed in the administrative citation. In the event that the administrative citation is revoked, no payment of the fine is due. In the event that the administrative citation is upheld, a new compliance deadline and fine due date shall be established by the hearing officer and indicated on the decision for the appeal, which shall not be less than ten (10) days nor more than thirty (30) days after the date the decision is mailed . C. Effect of Revocation of Citation. Revocation of the administrative citation by the hearing officer shall void the administrative citation fine. (Ord. 1576 § 1 (part), 2012) 1.24.130 Decision by Administrative Review Board or Construction Board of Appeals A. Decision by Board. After considering all the evidence and testimony submitted at an appeal hearing, the Administrative Review Board or Construction Board of Appeals, as applicable, shall issue a decision, as further described in the administrative citation and appeals guidelines, within thirty (30) calendar days to either uphold or revoke the administrative citation based upon a conclusion of whether the violation occurred. A decision must be supported by a majority of the applicable board. A member shall not vote if he or she did not hear all the evidence or listen to or read the entire hearing record. If an administrative citation charges two or more code 10.a Packet Pg. 83 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 13 violations, the applicable board may uphold all violations, or uphold some violations but not all violations, or dismiss some or all violations. The written decision shall also summarize the evidence, and shall be supported by written findings of fact. The Administrative Review Board and the Construction Board of Appeals do not have the authority to reduce or modify a fine of a violation that is upheld on appeal. If a violation is not upheld, the administrative citation shall be revoked. 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. The failure by the appellant to appear at the appeal hearing shall be noted on the notice of decision. The decision of the Administrative Review Board or Construction Board of Appeals shall be final. The written decision may be, but is not required to be, adopted by resolution and shall contain, at a minimum, the following: 1. Name of Appellant; 2. Date of administrative citation, municipal code violations charged, location of subject property (if applicable); 3. Date, time, and place of appeal hearing, and the identity of hearing officers; 4. The names of all people participating in the hearing and their capacity, either as appellant, representative of appellant, witness for or against appellant, city staff or otherwise; 5. A statement that the hearing was recorded, the method of recordation, and that recording is in the custody of the city clerk; 6. A statement whether the appellant or designated representative was present or failed to appear; 7. If no one appeared on behalf of appellant, a statement whether appellant submitted any written or other evidence; 8. A statement that the decision maker received the administrative citation and supporting information as prima fascia evidence; 9. A brief summary of all credible relevant testimony and the identity of the witness giving it. 10. A list of all physical evidence , including but not limited to photographs, maps, drawings, and documents; 11. A statement whether the decision maker upholds, revokes or modifies the administrative citation(s), as to each municipal code violation charged; 12. A statement as to which oral or physical evidence the decision maker found credible in support of the decision; 13. If the decision upholds the administrative citation, in whole or in part, the decision shall specify the due date for payment of the fine, which shall not be less than ten (10) days nor more than thirty (30) days after the date the decision is mailed. 14. The names and votes of members of the board, showing that a majority of the members of the board supported the decision. 15. The signature of the chairman of the board or his or her designee, and the date of signature. B. Payment of Fine after Appeal Decision. The filing of an appeal from a decision by the Administrative Review Board or the Construction Board of Appeals, or a petition for writ, shall suspend any fine assessed in the administrative citation. In the event that the administrative 10.a Packet Pg. 84 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 14 citation is revoked, no payment of the fine is due. In the event that the administrative citation is upheld, a new compliance deadline and fine due date shall be established by the applicable board and indicated on the notice of decision for the appeal. C. Effect of Revocation of Citation. Revocation of the administrative citation by the Administrative Review Board or Construction Board of Appeals shall void the administrative citation fine. 1.24.140 No Appeal to City Council/Right to judicial review. A. Notice of Decision is final. The notice of the decision by either the hearing officer or Administrative Review Board or Construction Board of Appeals is final, and is not subject to appeal to the city council pursuant to Chapter 1.20 of this code. B. Judicial Review After Any Hearing / Applicability of Government Code Section 53069.4. 1. The appellant may seek judicial review of any decision by the hearing officer or applicable board, by filing a further appeal with the San Luis Obispo superior court within twenty calendar days after service of the 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 city 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. An appellant, who elected to have the appeal heard by a hearing officer, cannot seek judicial review by petition for writ. 2. 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 citation by an unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal hearing before the hearing officer or applicable board. 3. 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 citation documents for any case appealed to that court. If the superior court revokes any administrative citation, the city will refund to the appellant the superior court filing fee paid by the appellant. (Ord. 1576 § 1 (part), 2012) C. Judicial Review After Hearing by Administrative Review Board or Construction Board of Appeals/Petition for Writ 1. The appellant may seek judicial review of the Administrative Review Board’s or Construction Board of Appeals’ decision by filing a petition for writ with the San Luis Obispo superior court. The time within which the petition must be filed, and the applicable requirements are governed by the California Code of Civil Procedure. The petition for writ filed with the court must also contain a proof of service showing a copy of the petition for writ was served upon the city clerk. The petitioner must pay to the superior court the appropriate court filing fee when the petition is filed. 10.a Packet Pg. 85 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 15 2. Failure to Exhaust Administrative Appeal. No petition for writ is permitted from a decision where the appellant is deemed to have abandoned the contest of the administrative citation by an unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal hearing before the Administrative Review Board or Construction Board of Appeals. 3. Preparation of Administrative Record. Upon request of the superior court, and petitioner’s payment to City of the costs of preparing the administrative record, the city attorney or city attorney’s designee shall have the administrative record prepared and forwarded to the superior court. 1.24.150 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. A civil administrative fine shall be deemed unpaid the day after the due date set by the administrative citation, or if appealed, the day after the due date set by the hearing officer or applicable board in its decision. If the decision of the hearing officer or applicable board is appealed to, or petition for writ filed with, the superior court, the civil administrative fine shall be deemed unpaid th e day after the due date set by the superior court. If the superior court upholds the administrative citation, but fails to set a due date, the fine shall be deemed unpaid on the eleventh (11th) day after the superior court decision is mailed. 1. Remedies Cumulative. Pursuit of one remedy does not preclude the pursuit of any other remedies. 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 unpaid delinquent fines, liens or assessments. 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 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 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. 10.a Packet Pg. 86 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 16 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 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 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 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 administrative 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 citation is served on the person. In addition, the 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 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. (Ord. 1576 § 1 (part), 2012) 10.a Packet Pg. 87 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 17 SECTION 2. Section 1.20.020 Right to Appeal is amended to add a subsection D to read as follows: 1.20.20 Right to Appeal D. No right of appeal to the council from any administrative decision made by a city official under the provisions of Chapter 1.24 of this code relating to administrative citations and review of administrative citations shall exist. SECTION 3. Chapter 15.02 of the San Luis Obispo Municipal Code is hereby amended to add Section 15.02.015 to read as follows: 15.02.015. Chapter 1.24 To Supersede Conflicting Administrative Citation and Review Provisions of Building Construction and Fire Prevention Regulations In the event of any conflict between the provisions of Chapter 1.24 and any provision of the building construction and fire prevention regulations of the city of San Luis Obispo adopted pursuant to section 15.02.010, relating to issuance of administrative citations and/or administrative review of administrative citations by the Construction Board of Appeals or any appeals board authorized under those regulations, the provisions of Chapter 1.24 shall control. SECTION 4. Chapter 2.30 is hereby added to the San Luis Obispo Municipal Code to read as follows: Chapter 2.30 ADMINISTRATIVE REVIEW BOARD 2.30.010 Board Created There is established the administrative review board of the city. 2.30.020 Membership The administrative review board shall consist of three members appointed by the city council to serve in an adjudicatory capacity. Members of the administrative review board may simultaneously serve on other city advisory bodies requiring technical expertise, including the Construction Board of Appeals, pursuant to San Luis Obispo Council Policies & Procedures section 6.7.2.5. Two Council members shall serve as liaison to this board. 2.30.30 Term of office A . Members shall be appointed for terms of two years which shall commence immediately upon appointment by the council. Commissioners shall serve at the pleasure of the council and may be 10.a Packet Pg. 88 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 18 reappointed; provided, that no appointee shall serve more than two consecutive full terms (four years). Appointment to a partial term of office following an unscheduled vacancy shall not preclude the appointee from serving two consecutive full terms following completion of a partial term; provided the partial term is less than one year. B .Vacancies shall be filled for unexpired terms. C. All of the applicable procedures and requirements contained in the council adopted “Handbook for Advisory Bodies” shall be incorporated in this section by reference. 2.30.040 Functions, Powers and duties The administrative review board’s basic responsibility is to decide the validity of administrative citations which are appealed to the board pursuant to chapter 1.24. To carry out this responsibility, the commission will: A. Conduct hearings, B. Evaluate evidence, C. Prepare written decisions supported by written findings of fact as to whether the administrative decision should be upheld or revoked, in whole or in part. D. Perform such other duties required by the council or by state or city laws. 2.30.50 Meetings A. All regular meetings shall be held at the established time and place set for that body as set forth within the Administrative Review Board bylaws. SECTION 5. Severability. If any subdivision, paragraph, sentence, clause, or phrase of this ordinance is, for any reason, held to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not affect the validity or enforcement of the remaining portions of this ordinance, or any other provisions of the city’s rules and regulations. It is the city’s express intent that each remaining portion would have been adopted irrespective of the fact that any one or more subdivisions, paragraphs, sentences, clauses, or phrases be declared invalid or unenforceable. SECTION 6. A summary of this ordinance, together with the names of Council members voting for and against, shall be published at least five (5) days prior to its final passage, in The Tribune, a newspaper published and circulated in this City. This ordinance shall go into effect at the expiration of thirty (30) days after its final passage. 10.a Packet Pg. 89 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Ordinance No. _____ (2015 Series) Page 19 INTRODUCED on the ____ day of ____, 2015, AND FINALLY ADOPTED by the Council of the City of San Luis Obispo on the ____ day of ____, 2015, on the following vote: AYES: NOES: ABSENT: ____________________________________ Mayor Jan Marx ATTEST: ____________________________________ Anthony Mejia City Clerk APPROVED AS TO FORM: _____________________________________ J. Christine Dietrick City Attorney IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, this ______ day of ______________, __________ ______________________________ Anthony J. Mejia City Clerk 10.a Packet Pg. 90 At t a c h m e n t : a - d r a f t O r d i n a n c e ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 1.24.010 Purpose—Adoption of civil administrative fines and administrative citation guidelines and appeal procedures. 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 citationDirector review of notices/Consolidation with other enforcement matters. 1.24.100 Hearing procedures for notice to correctAppeal of administrative citations. 1.24.110 Hearing procedures for appeal of administrative citations. 1.24.120 Appeal decisionDecision by hearing officer. 1.24.130 Decision by Administrative Review Board or Construction Board of Appeals. 1.24.140 No appeal to City Council/Right to judicial review. 1.24.140150 Collection of unpaid fines. 1.24.010 Purpose—-Adoption of civil administrative fines and administrative guidelines and appeal procedures. 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, thecity council. The city shall prepare and, promulgate, and update as necessary, administrative citation and appeals 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 an administrative citation, and to establish the proper format of the administrative citation, and for service of that administrative citation in a manner consistent with the requirements of this Chapter, due process and any other applicable law (hereinafter referred to as the “administrative citation guidelines”). Such administrative citation guidelines shall be expressly approved by a resolution of the city council prior to their adoption. (Ord. 1576 § 1 (part), 2012) C. Effect on Title 15 Violations. The hearing requirements and procedures set forth in this chapter, as they relate to the administrative review of administrative citations, shall supersede any conflicting provisions within the municipal code or any of the codes adopted by San Luis Obispo Municipal Code section 15.02.010 and amended by San Luis Obispo Municipal Code section 15.04.010 and following. 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. 10.b Packet Pg. 91 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 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. (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 levying or assessing a civil fine as set by council resolution as a penalty for a code violation. The director shall not issue an 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 unless at least ten days prior to the issuance of the administrative citation, the director served a notice to correct.city council resolution as a penalty for a code violation. B B. Administrative Review Board. Adjudicatory body appointed by the city council responsible for conducting administrative hearings of appeals of administrative citations issued for municipal code violations, excluding those issued for violations of Title 15 and for non-Title 15 violations issued in conjunction with a citation for a Title 15 violation, where the decision may be challenged by writ to the Superior Court. Members of this board may serve simultaneously on another advisory body pursuant to San Luis Obispo Council Policies and Procedures section 6.7.2.5. C. Code Violation. Any violation of the San Luis Obispo Municipal Code or any code adopted by reference therein. C D. Construction Board of Appeals. Adjudicatory body appointed by city council responsible for conducting administrative review of appeals of administrative citations issued for all violations of Title 15, as well as appeals of administrative citations for non-Title 15 code violations issued in conjunction with the Title 15 violation(s). E. Director. The City Manager or department head, or his or her designee, responsible for enforcing the municipal code with respect to his or her department on behalf of the city. D F. Effective Date of Administrative Citation. The date specified in the administrative citation as the effective date. Generally the effective date will be the date the administrative citation is issued. However, for code violations of building, plumbing, electrical or other similar structural or zoning regulations that do not create an immediate danger to health or safety, the effective date will be as specified in the notice to correct, which date shall not be less than ten days after the notice to correct is issued. G. Fine Payment Due Date. The date the administrative citation fine is due. It shall be at least ten (10) days after the effective date of the administrative citation. H. Hearing Administrator.Officer. The person appointed by the city administratorattorney, or his or her designee, to serve as the hearing officer for conducting administrative hearings. of appeals of administrative citations issued for municipal code violations, excepting those issued for violations of Title 15 and for non-title 15 violations issued in conjunction with a citation for a Title 15 violation, where the decision may be appealed directly to the Superior Court pursuant to Government Code Section 53069.4 for a de novo hearing. E I. Issued. Giving, mailing, personally serving or posting a notice to correct, notice of violation and/or an administrative citation to a person where “issuance” is . The notice or administrative citation shall be deemed to have occurred“issued” on the earlierearliest of the date when anon which the notice and/or 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. If the property is physically posted, notice shall also be given by mail as soon as possible. F J. Notice to Correct. A type of notice of code violation that pertains to continuing 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 10.b Packet Pg. 92 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) other similar structural or zoning violations, that do not create an immediate danger to health and safety beingor safety. The notice to correct usually serves as a courtesy notice and opportunity to correct or consult with staff regarding the alleged code violation, and does not serve as a final order, decision or determination made by the chief building official or fire official. The notice to correct may be served concurrently with a notice of violation and/or administrative citation; provided, the administrative citation shall have an effective date at least ten days after the date the notice to correct is issued. G K. Notice of Violation. An official city municipal code violationA written notice issued to a person(s) notifyingadvising 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., or individual behavior, which is served concurrently with an administrative citation assessing a civil fine as set by city council resolution as a penalty for a municipal code violation Subsequent notices regarding the same type of violation, within any twelve-month period, may be cause for imposing additional administrative fines without warning. The notice of violation must be issued at least ten days prior to the effective date of an administrative citation if it pertains to building, plumbing, electrical, structural, zoning, storm water or other violation that does not create an immediate danger to health or safety. H L. Person. Any of the following: 1. 1. An individual who causes a code violation to occur. 2. 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. 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. 4. An individual who is an owner of real property where a property related code violation occurs. 5. 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 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 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. (Ord. 1576 § 1 (part), 2012) 6. An individual who is an owner of real property where a violation of the city’s noise or unruly gathering ordinance(s) occurs after notification of a previous violation, in accordance with Chapters 9.12 and 9.13 of the municipal code. 1.24.040 Maintaining public nuisances prohibited. Pursuant to the authority of StateCalifornia Government Code Section 38771 and municipal code Sections 1.12.070 and 1.12.080, 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. (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 may use the procedures set forth in this chapter to abate such nuisance as 10.b Packet Pg. 93 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) authorized by law. B. Notice of Violation and Administrative Citation Issuance. The director may issue a notice of violation, notice to correct and/or 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 violation and/oran administrative citation is issued shall be liable for and shall pay to the city the administrative fine or fines described in the notice of violation and/or administrative citation when due pursuant to the provisionprovisions 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, or similar land use approval, that person may be issued a notice of violation, notice to correct, and/or administrative 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 noticeCertain provisions of violationthis code, including but not limited to those relating to noise and/or unruly gatherings, provide that each hour that a violation exists shall be a separate and distinct violation. An administrative citation may charge a violation for one or more days or hours, as applicable, on which a violation exists and for violation of one or more applicable code sections. E. Prior and Repeat Violations. The city may take into consideration the fact that a person has been previously issued aan uncorrected notice of violation and/or a sustained 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 violation and/or 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 .Repeated violations of the same code provision within any twelve month period may result in the issuance of an administrative citation(s) imposing additional administrative fines without a notice of violation and/or notice to correct preceding the citation. F. Contents of Notice. of Violation, Notice to Correct and/or Administrative Citation. The director shall generally issue a notice of violation, notice to correct and/or 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(s) responsible for thea code violation. as set for in section 1.24.030(L).The administrative citation 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 violation and/or administrative citation issued to persons and alleging a violation of the municipal code, but must, at a minimum, inform the responsible person of the nature of the violation charged, any right to correct the violation, and/or the right to appeal any citation, as well as the process by which to verify to the city the correction of violation(s) and/or the process to appeal citations. G. Service of Notice. The notice of violation, notice to correct and/or administrative citation and any amended notice of violation and/or administrative citation shall be served by mail or personal service or posted on the property where the code violation is occurring in the manner provided for in the approved administrative citation guidelines. H. Proof of Service. Proof of personal service of the notice of violation and/or administrative citation shall be documented as provided for in the approved administrative citation guidelines. (Ord. 1576 § 1 (part), 2012) 1.24.060 Extensions of time. If the director receives a request from any person required to comply with a notice of violation, theThe 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 an imminent danger to the public health and safety. The director shall have the authority to place reasonable conditions on such an extension. (Ord. 1576 § 1 (part), 2012) 10.b Packet Pg. 94 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 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. B. Due Date for Fines. Fines are due on the dayas specified in the administrative citation or, in the event of an unsuccessful appeal, as determined by the hearing administrator.officer, Administrative Review Board, or Construction 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 ofon or before 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 aan 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 administrative citationcitations or the initiation of criminal or superior court civil abatement proceedings. (Ord. 1576 § 1 (part), 2012) 1.24.090. Director review of notices /Consolidation with other enforcement matter A. Within five days of issuance of a notice to correct/notice of violation, a person receiving such notice(s) and citation may request in writing that the director review a contested notice to correct and/or notice of violation. The director, or his or her designee, shall review all contested notices prior to the effective date of an administrative citation. The director shall have the authority to modify or rescind any contested notice that he or she finds was issued in error based on the code section noticed or other information provided by the noticed person. If the director does not modify or rescind any contested notice or fails to take any action by the effective date of the administrative citation, the notice and citation, and deadlines stated in each, remain in full force.There is no separate right to appeal from the director’s review or determination on a notice of correction or violation, but any assertions of error or challenges to the Director’s review or determination may be raised as part of any appeal from an administrative citation pursuant to section 1.24.100. B. If an administrative citation is issued in conjunction with a related city enforcement action and the other action requires review by another advisory body (i.e., the planning commission) or city council, the city manager, or city manager’s designee, in his or her sole discretion, may consolidate review of the administrative citation with the review of the other related action(s), and refer review of all related matters to the body with jurisdiction over the violation requiring the highest level of review. 1.24.100 Appeal of administrative citation.citations A. Appeal to Hearing Administrator. Any person aggrieved by the action of the director in issuing an administrative citation pursuant to the provisions of this chapter may appeal such citation to the hearing administrator. If no appeal is filed within ten days of the date of issuance. To appeal an administrative citation, the appellant shall file a signed written appeal that must be received by the city clerk within ten (10) days of the effective date of the administrative citation. The request for appeal shall be deemed filed on the date received by the city clerk. If no appeal is filed within ten days of the effective date of the administrative citation, the administrative 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 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. 10.b Packet Pg. 95 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 2. To appeal an administrative citation, the appellant shall file a signed written request following the appeal procedures outlined in the administrative citation. An appellant may contest the administrative 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. C. Receipt of an Appeal Request. To be effective, the appeal request must be received by the director within ten days of the date the notice to correct or 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 to correct or administrative citation to which such appeal requests shall be mailed. (Ord. 1576 § 1 (part), 2012)Process 1.24.100 Hearing procedures for notice to correct. A. The director shall review all contested notices to correct. The director shall have the authority to uphold, modify or revoke any contested notice to correct. 1. Title 15 violations (building, plumbing, housing, fire code, etc.). For administrative citations for violations of Title 15 and all non-Title 15 violations issued in conjunction with violations of Title 15, the appeal shall be to the Construction Board of Appeals, with a right to appeal either directly to the Superior Court pursuant to Government Code Section 53069.4 or to petition for a writ to the Superior Court. 2. Election of appeal process for non-Title 15 violations. For all other administrative citations not eligible for appeal to the Construction Board of Appeals, an appellant may elect either of the following: (a) Where an appellant does not wish to challenge the administrative citation or any final city action related to the citation in court by any writ action, an appellant may elect an expedited appeal process to a city hearing officer, whose final decision may be appealed directly to the Superior Court for de novo review pursuant to Government Code Section 53069.4. In the event an appellant wishes to pursue any writ action against the city, the appellant shall be required to exhaust the administrative review requirement set forth in Section 1.24.100 B.2 (b) below. Failure to proceed in accordance with section 1.24.100 B 2 (b) shall constitute a failure to exhaust administrative remedies for purposes of any subsequently filed writ action related to the administrative citation or any related city action appealed under 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 Hearing procedures for administrative citations. A. Applicable Hearing Administrator. For hearings involving violations of this section. (b) Where an appellant wishes to challenge the administrative citation or any final city action related to the citation in court by any writ action, such appeal shall be made to the Administrative Review Board.. to ensure preparation of an adequate administrative record. The decision of the hearing body may be appealed either directly to Superior Court for de novo review pursuant to Government Code Section 53069.4 or the appellant may file a petition for a writ to the Superior Court. For purposes of writ review, the decision of the Administrative Review Board shall be final and the completed appeal to the Administrative Review Board shall satisfy administrative exhaustion requirements of the City. (c) Only one appeal process may be chosen, and once chosen, the election is final. C. code, the hearing administratorContents of Appeal. The written appeal shall state the following information: 1. A caption setting forth the names, addresses, phone numbers and other contact information appellants wish city to have, of all appellants participating in the appeal. 10.b Packet Pg. 96 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 2. A brief statement setting forth the interest of each of the appellants, either as the recipient of the notice of violation and administrative citation , or the legal interest of each in the building or property that is the subject of the notice of violation and administrative citation. A brief statement describing: (a) the specific notice(s) of violation and administrative citation(s) appealed, by date of notice of violation and administrative citation, address of property cited or location where an individual was cited, and municipal code violations cited, (b)whether all or only specified code violations are being appealed., (c)why the appellant is appealing the notice of violation and administrative citation, and why the notice of violation and administrative citation should be revoked, modified or otherwise set aside.4. For non-Title 15 code violations, pursuant to Section 1.24.100 B,a statement whether the appellant elects either to proceed with a hearing officer (if no writ will be sought) or to the Administrative Review Board (if the appellant intends to challenge city action by writ For Title 15 violations, and non-Title 15 violations issued in conjunction with a Title 15 violation, the appeal shall be scheduled by staff to be heard by the Construction Board of Appeals. Failure to request hearing before the Construction Board of Appeals or Administrative Review Board within the time for the filing of an appeal will constitute a failure to exhaust administrative remedies for purposes of any subsequently filed writ action. 5. A statement that all of the matters alleged in the appeal are true, followed by the signature(s) of each appellant(s), and one official mailing address for the appellant(s) to receive further notices from city relating to the appeal. 1.24.110 Hearing procedures for appeals of administrative citations A. Applicable Hearing Officer or Board. In accordance with the procedures set forth below, after receipt of a timely filed appeal, the following shall hear the appeal: 1. For appeals of administrative citations issued for violations of Title 15, and non-Title 15 violations issued in conjunction with a Title 15 violation, the Construction Board of Appeals shall hear the appeal. 2. For appeals of administrative citations outside the jurisdiction of the Construction Board of Appeals in subsection 1.24.110 A.1 above, where the person elects to have the right of appeal for a de novo hearing in the Superior Court under Government Code Section 53069.4, or has failed timely to elect to have the Administrative Review Board hear the appeal, the hearing officer shall hear the appeal. The hearing officer shall be the person designated by the city administratorattorney to serve as the hearing officer. 3. For appeals of administrative citations outside the jurisdiction of the Construction Board of Appeals in subsection 1.24.110 A.1 above, where the appellant may wish to challenge city action by writ, and timely elects to appeal to the Administrative Review Board , the Administrative Review Board shall hear the appeal. 4. For appeals of administrative citations outside the jurisdiction of the Construction Board Appeals in subsection 1.24.100 A.1 above, if the person fails to request a hearing before the Administrative Review Board, t, the hearing officer shall hear the appeal. B. Time and Place of Hearings. /Challenge of Hearing Officer for Cause. Hearings shall be conducted by a hearing administrator officer, the Administrative Review Board or Construction Board of Appeals, as applicable, on the date, time and place specified by the cityin writing by the city and delivered to the appellant. Such date shall not be less than ten (10) days or more than sixty (60) days from the date the appeal was filed with the city clerk. 10.b Packet Pg. 97 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) In the hearing notice, the city shall identify the hearing officer or members of the Administrative Review Board or Construction Board of Appeals hearing the appeal. An appellant may challenge a hearing officer or member(s) of the Administrative Review Board or Construction Board of Appeals from hearing their appeal, but only for good cause, and the reasons shall be specified in writing received by the director within ten days after the date of mailing of the notice .The fact that a hearing officer or member of the Administrative Review Board or Construction Board of Appeals has conducted a previous appeal hearing involving the person shall not constitute good cause. The director shall notify the challenged hearing officer or member(s) of the Administrative Review Board and give the challenged officer the opportunity to disqualify himself or herself. If he or she chooses not to disqualify, he or she shall do so in writing documenting the reasons why disqualification is not required. The appellant shall be notified of the challenged officer’s decision, and the hearing shall proceed as scheduled. The person’s challenge and the decision not to disqualify shall become part of the administrative record. If the hearing officer disqualifies himself or herself, the city attorney shall appoint another hearing officer. If a member or members of a board disqualifies(y) himself or herself, the hearing shall proceed with the remaining member(s) and a hearing officer(s) appointed by the city attorney to replace each disqualified member. C. Appeal of Records. The director shall ensure that the administrative citation and any supporting documentation is delivered to the applicable hearing administratorofficer or board 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 administrative citation which has been or will be provided to the hearing administrator.officer or board. 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 administrative citation. E. Use of Reports as Evidence. The administrative citation and any other documents, exhibits, reports or other materials prepared by city staff or by the director concerning a code violation or an attempted correction of a code violation that are provided to the applicable hearing administratorofficer or board shall be accepted by the hearing administratorofficer or board as prima facie evidence of the code violation and the facts stated in such documents. F. Staff Witnesses/Additional Evidence/Submission of Written Evidence by Appellant who does not Appear. Neither city staff nor any other representative of the city shall be required to attend the appeal hearing, nor shall the hearing administratorofficer nor applicable board require that there be submitted any evidence, other than the administrative citation and documentation relating to the citation that city relied on in issuing the 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. If the appellant has communicated that he or she does not intend to appear at the scheduled hearing, but submits written evidence to the hearing officer or board and the director at least ten (10) days prior to the hearing, the hearing officer or board may consider that evidence. Any additional evidence prepared by city staff may also be considered by the hearing officer or board, provided that it has been issued to the appellant, by certified mail, at least five (5) days prior to the hearing. G. Continuances. The applicable hearing administratorofficer or board may continue an appeal hearing if a request is made showing good cause by the appellant or the director. AllExcept in case of medical or other emergency, 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 by the applicable hearing officer or board from the director or the appellant within five days of the date of the written notice advising of the time, date and place of hearing. 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, and the appellant has not presented any written evidence pursuant to Section 1.24.110 F above, the request(s) shall be deemed abandoned in accordance with subsection IJ of this section. 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. 10.b Packet Pg. 98 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) I. No Subpoena Power. The hearing officer, the Administrative Review Board and/or the Construction Board of Appeals do not have the authority to issue a subpoena. J. Failure to Appear. The failure of the appellant to appear at the hearing, unless the hearing was continued per subsection G of this section, or unless the appellant has submitted written evidence per subsection F, 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. (Ord. 1576 § 1 (part), 2012) K. Recordation of Board Hearings. The audio portion of every hearing before the Construction Board of Appeals or the Administrative Review Board shall be recorded. Any party to the hearing may, at their own expense, also record such hearings by court or other reporter or video recording, or other means, provided the recording method does not interfere with the conduct of the hearing. Any party recording the hearing by any means shall make a copy available to any other party upon request and payment of reasonable duplication cost. L. Additional Hearing Procedural Requirements. Any additional procedural requirements for hearings may be specified in the administrative citation and appeals guidelines. 1.24.120 Appeal decision. A. Notice of Decision. by Hearing Officer A. Decision by hearing officer. After considering all the evidence and testimony submitted at an appeal hearing, the hearing administratorofficer shall issue a notice ofwritten decision within twoten business days to either uphold or revoke the administrative citation based upon a conclusion of whether athe violation occurred. If an administrative citation charges two or more code violations, the hearing officer may uphold all violations, or uphold some violations but not all violations, or dismiss some or all violations. The hearing officer does not have the authority to reduce or modify a fine for a violation that is upheld on appeal. If a violation is not upheld, the administrative citation shall be revoked. The notice of decision shall be mailed within one 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 administrative citation in unusual cases when extenuating circumstances make doing so appropriate and in the interest of justice. The decision of the hearing administratorofficer. The decision of the hearing officer shall be final. B. Payment of Fine after Appeal Decision. The filing of an appeal from a decision by the hearing officer shall suspend any fine assessed in the administrative citation. In the event that the administrative citation is revoked, no payment of the fine is due. In the event that the administrative citation is upheld, a new compliance deadline and fine due date shall be established by the hearing administratorofficer and indicated on the notice of decision for the appeal, which shall not be less than ten (10) days nor more than thirty (30) days after the date the decision is mailed . C. C. Effect of Revocation of Citation. Revocation of the administrative citation by the hearing administratorofficer shall void the administrative citation fine. (Ord. 1576 § 1 (part), 2012) 1.24.130 Decision by Administrative Review Board or Construction Board of Appeals A. Decision by Board. After considering all the evidence and testimony submitted at an appeal hearing, the Administrative Review Board or Construction Board of Appeals, as applicable, shall issue a decision, as further described in the administrative citation and appeals guidelines, within thirty (30) calendar days to either uphold or revoke the administrative citation based upon a conclusion of whether the violation occurred. A decision must be supported by a majority of the applicable board. A member shall not vote if he or she did not hear all the evidence or listen to or read the entire hearing record. If an administrative citation charges two or more code violations, the applicable board may uphold all violations, or uphold some violations but not all violations, or dismiss some or all violations. The written decision shall also summarize the evidence, and shall be supported by written findings of fact. The Administrative Review Board and the Construction Board of Appeals do not have the authority to reduce or modify a fine of a violation that is upheld on appeal. If a violation is not upheld, the administrative citation shall be revoked. The notice of decision shall be mailed by first class and certified mail, postage prepaid, return receipt 10.b Packet Pg. 99 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 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. The decision of the Administrative Review Board or Construction Board of Appeals shall be final. The written decision may be, but is not required to be, adopted by resolution and shall contain, at a minimum, the following: 1. Name of Appellant; 2. Date of administrative citation, municipal code violations charged, location of subject property (if applicable); 3. Date, time, and place of appeal hearing, and the identity of hearing officers; 4. The names of all people participating in the hearing and their capacity, either as appellant, representative of appellant, witness for or against appellant, city staff or otherwise; 5. A statement that the hearing was recorded, the method of recordation, and that recording is in the custody of the city clerk; 6. A statement whether the appellant or designated representative was present or failed to appear; 7. If no one appeared on behalf of appellant, a statement whether appellant submitted any written or other evidence; 8. A statement that the decision maker received the administrative citation and supporting information as prima fascia evidence; 9. A brief summary of all credible relevant testimony and the identity of the witness giving it. 10. A list of all physical evidence , including but not limited to photographs, maps, drawings, and documents; 11. A statement whether the decision maker upholds, revokes or modifies the administrative citation(s), as to each municipal code violation charged; 12. A statement as to which oral or physical evidence the decision maker found credible in support of the decision; 13. If the decision upholds the administrative citation, in whole or in part, the decision shall specify the due date for payment of the fine, which shall not be less than ten (10) days nor more than thirty (30) days after the date the decision is mailed. 14. The names and votes of members of the board, showing that a majority of the members of the board supported the decision. 15. The signature of the chairman of the board or his or her designee, and the date of signature. B. Payment of Fine after Appeal Decision. The filing of an appeal from a decision by the Administrative Review Board or the Construction Board of Appeals, or a petition for writ, shall suspend any fine assessed in the administrative citation. In the event that the administrative citation is revoked, no payment of the fine is due. In the event that the administrative citation is upheld, a new compliance deadline and fine due date shall be established by the applicable board and indicated on the notice of decision for the appeal. C. Effect of Revocation of Citation. Revocation of the administrative citation by the Administrative Review Board or Construction Board of Appeals shall void the administrative citation fine. 1.24.140 No Appeal to City Council/Right to judicial review. A. A. Notice of Decision is final. The notice of the decision by either the hearing officer or Administrative Review Board or Construction Board of Appeals is final, and is not subject to appeal to the city council pursuant to Chapter 1.20 of this code. B. Judicial Review After Any Hearing / Applicability of Government Code Section 53069.4. 1. The appellant may seek judicial review of any decision by the hearing administrator’s decisionofficer or applicable board, by filing a further appeal with the San Luis Obispo superior court within twenty calendar days after the appellant receives a copyservice 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 administratorcity clerk for the city of San Luis Obispo. The 10.b Packet Pg. 100 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) appellant must pay to the superior court the appropriate court filing fee when the appeal is filed. An appellant, who elected to have the appeal heard by a hearing officer, cannot seek judicial review by petition for writ. B 2. 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 citation by an unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal hearing before the hearing administratorofficer or applicable board. C 3. 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 citation documents for any case appealed to that court. If the superior court revokes any administrative citation, the city will refund to the appellant the superior court filing fee paid by the appellant. (Ord. 1576 § 1 (part), 2012) C. Judicial Review After Hearing by Administrative Review Board or Construction Board of Appeals/Petition for Writ 1. The appellant may seek judicial review of the Administrative Review Board’s or Construction Board of Appeals’ decision by filing a petition for writ with the San Luis Obispo superior court. The time within which the petition must be filed, and the applicable requirements are governed by the California Code of Civil Procedure. The petition for writ filed with the court must also contain a proof of service showing a copy of the petition for writ was served upon the city clerk. The petitioner must pay to the superior court the appropriate court filing fee when the petition is filed. 2. Failure to Exhaust Administrative Appeal. No petition for writ is permitted from a decision where the appellant is deemed to have abandoned the contest of the administrative citation by an unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal hearing before the Administrative Review Board or Construction Board of Appeals. 3. Preparation of Administrative Record. Upon request of the superior court, and petitioner’s payment to City of the costs of preparing the administrative record, the city attorney or city attorney’s designee shall have the administrative record prepared and forwarded to the superior court. 1.24.140 150 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. A civil administrative fine shall be deemed unpaid the day after the due date set by the administrative citation, or if appealed, the day after the due date set by the hearing officer or applicable board in its decision. If the decision of the hearing officer or applicable board is appealed to, or petition for writ filed with, the superior court, the civil administrative fine shall be deemed unpaid the day after the due date set by the superior court. If the superior court upholds the administrative citation, but fails to set a due date, the fine shall be deemed unpaid on the eleventh (11th) day after the superior court decision is mailed. 1. 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. 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 violation and/or an unpaid administrative citationunpaid delinquent fines, liens or assessments. 3. 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 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 10.b Packet Pg. 101 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) 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. 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 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. 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. 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 is authorized to take any steps necessary to enforce collection of the lien or special assessment, including but not limited to the following: 1. 1. Request the county recorder to record a notice of any lien or special assessment certified by resolution of the city council. 2. 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 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 citation is served on the person. In addition, the 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 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. (Ord. 1576 § 1 (part), 2012) 10.b Packet Pg. 102 At t a c h m e n t : b - L e g i s l a t i v e d r a f t o f p r o p o s e d a m e n d m e n t s t o M u n i C o d e C h . 1 . 2 4 ( 1 1 3 7 : A m e n d m e n t s t o M u n i C o d e C h a p t e r 1 . 2 4 ) Revised Process for Appeal of Administrative Citations As determined by the proposed by amendments to Muni Code Chapter 1.24 Presented by: J. Christine Dietrick, City Attorney October 6, 2015 Administrative Citation. Document issued by the director levying or assessing a civil fine as set by city council resolution as a penalty for a code violation. Director. The City Manager or department head, or his or her designee, responsible for enforcing the municipal code with respect to his or her department on behalf of the city. The director may issue a notice of violation, notice to correct and/or administrative citation Notice to Correct usually serves as a courtesy notice and may be served concurrently with a notice of violation and/or administrative citation; does not serve as the final order, decision or determination. Notice of Violation is a written notice issued to a person(s) advising them that they are in violation of the San Luis Obispo Municipal Code which is served concurrently with an administrative citation assessing a civil fine as set by city council resolution. Notice to Correct/Notice of Violation If pertaining to structural or zoning violations that do not create an immediate danger to health or safety. All other Notices must be issued at least ten days prior to The Effective Date of an Administrative Citation The date issued is Contesting a Notice to Correct/Notice of Violation of building, structural or zoning violations that do not create an immediate danger to health or safety Within five days of issuance a person receiving such notice(s) may request in writing that the director review a contested notice. The director, or his or her designee, shall review all contested notices prior to the effective date of an administrative citation. If the director does not modify or rescind any contested notice or fails to take any action by the effective date of the administrative citation, the notice and citation, and deadlines stated in each, remain in full force. This decision is not itself appealable, but is part of the administrative record of the notice Fine Payment Due Date. The administrative citation fine shall be due at least ten (10) days after the effective date of the administrative citation. Other Remedies. The city attorney, at his or her discretion, may also pursue criminal or civil actions against any person for a code violation. Any person may appeal an administrative citation by: filing a signed written appeal that must be received by the city clerk within ten (10) days of the effective date of the administrative citation. This date shall not be less than ten (10) days or more than sixty (60) days from the date the appeal was filed with the city clerk. Appealing an Administrative Citation Notice shall be mailed by the City to the appellant specifying the date, time and place of their appeal hearing Review is by the Construction Board of Appeals (appointed by Council) Title 15 violations or non-Title 15 violations issued in conjunction with a citation for a Title 15 violation. If an administrative citation is written for: All other Municipal Code Violations IF Writ action not to be pursued THEN an appellant may elect an expedited appeal process to a Hearing Officer (appointed by the city attorney) IF Writ action to be pursued THEN appeal must be reviewed by the Administrative Review Board (appointed by Council) by a Hearing Officer A written decision will be issued within ten business days Decisions by a Board A written decision shall be issued, as further described in the administrative citation and appeals guidelines, within thirty (30) calendar days A decision must be supported by a majority of the applicable board. The written decision shall summarize the evidence, shall be supported by written findings of fact, and include at minimum the list of 15 things in 1.24.130(A) The written decision may be, but is not required to be, adopted by resolution. Decisions By either a HO or a Board Citations can be upheld or denied, but the HO or Board does not have the authority to reduce or modify a fine for a violation that is upheld on appeal. The decision of the HO or Board shall be final appeal directly to the Superior Court pursuant to Government Code Section 53069.4 Petition for a writ to the Superior Court. ONLY May Choose by a Hearing Officer by a Board Judicial Review of a decision There is no appeal to the City Council. Page 2: 1.24.030(F) – change “notice to correct” to “notice to correct or notice of violation.” Page 5: 1.24.090(A) – in the first sentence, add “for a continuing building, plumbing, electrical or other structural or zoning violation that does not create an immediate danger to health or safety” to clarify which notices may be contested. Page 5-6: 1.24.100(B)(2)(a) – remove the second paragraph to make clearer that an appellant cannot file a petition for writ after their appeal is heard by a hearing officer. Page 7: 1.24.110(A)(2) – remove “or has failed timely to elect to have the Administrative Review Board hear the appeal,” as this point is made in 1.24.110(A)(4). 1.24.110(A)(4) – change “request a hearing before the Administrative Review Board” to “elect an appeal process for non-Title 15 violations” as this more accurately represents that the appellant must make a choice or their appeal will default to being heard by a hearing officer. 1.24.110(B) title – add “and Board Member” as challenges may also be made to a board member. 1.24.110(B) – in the first paragraph, add “in a hearing notice” as this is the term used later in the section. 1.24.110(B) – in the second paragraph, change “Administrative Review Board” to “applicable board” in order to include the Construction Board of Appeals. Page 9: 1.24.130(A)(3-12) – change “hearing officers” reference to “board members” and “decision maker” references to “board” to reflect the members of the Administrative Review Board and Construction Board of Appeals. 1.24.130(A)(8) – correct the spelling of “facie.” From Agenda Correspondence: Further changes suggested for clarity of process and accuracy of intent.