HomeMy WebLinkAbout2001-06-19; City Council; 16233; Administrative Remedies for ViolationsCITY OF CARLSBAD - AGENDA BILL m
AB # /6; 233 TITLE- ------+MENDMENT OF MUNICIPAL CODE TO ALLOW DEPT. HD. 6
MTG. 6/19/01 FOR ADMINISTRATIVE REMEDIES FOR VIOLATIONS CITY ATTY I DEPT. CLK I I CITY MGR.
RECOMMENDED ACTION:
Adopt Ordinance No. NS-591, amending Title 1 of the Carlsbad Municipal Code, by the
addition of Chapter 1.10 to provide for Administrative Remedies for Violations of City
Codes.
ITEM EXPLANATION
Ordinance No. NS-591 was introduced and first read at the City Council meeting held on June
12, 2001. The second reading allows the City Council to adopt the ordinance which would
then become effective in thirty days. The City Clerk will have the ordinance published within
fifteen days, if adopted.
FISCAL IMPACT
See Agenda Bill No. 16,225 on file with the City Clerk.
EXHIBITS
1. Ordinance No. NS-591.
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ORDINANCE NO. NS-5g1
AN ORDINANCE OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING TITLE 1 OF THE CARLSBAD MUNICIPAL CODE BY ADDING CHAPTER 1 .I0 PROVIDING FOR ADMINISTRATIVE CODE ENFORCEMENT REMEDIES
WHEREAS, the City of Carlsbad City Council finds that the enforcement
of the Carlsbad Municipal Code (“Municipal Code”) and applicable state codes
throughout the City is an important public service; and
WHEREAS, enforcement of the Municipal Code is vital to the protection of
the public’s health, safety and quality of life; and
WHEREAS, the City Council of the City of Carlsbad recognizes that
successful code enforcement starts with the drafting of precise regulations that can be
effectively applied in administrative enforcement hearings and judicial proceedings; and
WHEREAS a comprehensive code enforcement system that uses a
combination of judicial and administrative remedies is critical to gain compliance with
code regulations; and
WHEREAS, there is a need for additional methods of code enforcement
for violations of the Municipal Code to supplement existing code enforcement tools; and
WHEREAS, the assessment of administrative citations and civil penalties
through an administrative hearing procedure for code violations is a necessary alternate
method of code enforcement; and
WHEREAS, there is a need to establish uniform procedures for
administrative enforcement hearings conducted pursuant to the Municipal Code.
NOW, THEREFORE, the City Council of the City of Carlsbad, California,
does ordain as follows:
Section 1: That Title 1 of the Carlsbad Municipal Code is amended by
the addition of Chapter 1 .I 0, Administrative Code Enforcement Remedies, to read as
follows:
Ordinance No. Ns-591 1 of 9
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CHAPTER 1 .lO ADMINISTRATIVE CODE ENFORCEMENT REMEDIES
Sections: General
1.10.005 Statement of Purpose and Intent 1 .lO.OlO Definitions 1.10.020 General Enforcement Authority 1.10.030 Notice of Violation 1.10.040 Service of Notices 1.10.050 Notice of Pending Administrative Enforcement Action 1.10.060 Remedies Not Exclusive
Administrative Citations
1.10.070 Administrative Citations 1 .I 0.080 Administrative Citation Procedures 1 .10.090 Contents of Administrative Citation 1 .I 0.100 Administrative Citation Penalties Assessed 1 .I 0.110 Failure to Pay Administrative Citation Penalties 1.10.120 Appeal of Administrative Citations
Administrative Hearinas
1 .I 0.130 Administrative Enforcement Hearing Procedures 1.10.140 Administrative Citation Enforcement Order 1 .I 0.150 Qualifications Of Administrative Hearing Officer 1.10.160 Appointment Of Administrative Hearing Officer 1 .I 0.170 Disqualification Of Administrative Hearing Ofticer
ADMINISTRATIVE CODE ENFORCEMENT REMEDIES
GENERAL
1 .I 0.005 Statement Of Purpose And Intent A. The Council has determined that the enforcement of the Municipal Code and applicable state codes throughout the City is an important public service and is vital to the protection of the public’s health, safety and quality of life. The Council has determined that there is a need for alternative methods of code enforcement and that a comprehensive code enforcement system uses a combination of judicial and administrative remedies to gain compliance with code regulations. The Council finds that there is a need to draft precise regulations that can be effectively applied in judicial and administrative proceedings and further finds that there is a need to establish uniform procedures for the administrative enforcement hearings.
1 .I 0.010 Definitions A. The following definitions shall apply in interpretation and enforcement of this Chaoter. 8~ 1. “Administrative Costs” means the administrative citation fines assessed, all costs incurred by the City from first discovery of the violations through the appeal process and until compliance is achieved, including, but not limited to, staff time
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in inspecting the property, sending notices, preparing and attending any appeal hearing. 2. “Administrative Code Enforeement Remedies” means
Administrative Abatement, Summary Abatement, Civil Penalties, Administrative Citations, Recordation of Notices of Violation and Notices of Noncompliance as contained in the Municipal Code. 3. “Administrative Hearing Officer” shall mean any person appointed by the City Myager:, or his/her designee,;0 preside at administrative hearings. Enforcement Officer shall mean any City employee or agent of the City with the authority to enforce any provision of the Municipal Code. 5. “Person” means any natural person, firm, association, business, trust, organization, corporation, partnership, company, or any other entity, which is recognized by law as the subject of rights or duties. “Responsible Party” means any person or persons in charge of the premises or lo66ation or the person or persons responsible for the event or incident, and shall include any of ihe following: a. The person or persons who own the property where the violations exist. b. The person or person in charge of the premises where the violation exists. C. The person or persons using the premises when the violation exists. d. If any of those persons are minors, the parent or guardians of such minor(s) shall be the responsible party. If the person or persons is a business entity, on-site supervpr wt%-e the violations exist shall be a responsible party. the manager or
“Municipal Code” shall mean the Carlsbad Municipal Code.
1 .I 0.020 General Enforcement Authority A. For the purposes of this Chapter, the City Manager or his/her designated Enforcement Officer shall have the power to issue Notices of Violation and field citations, inspect public and private property and use whatever judicial and administrative remedies are available under the Municipal Code.
1 .I 0.030 Notice Of Violation A. Whenever an Enforcement Officer determines that a violation of the Municipal Code exists, the Enforcement Officer may issue a Notice of Violation to a Responsible Party. The Notice of Violation shall include the following information:
:: The name of the owner of record of the property. Street address.
:* The Municipal Code sections in violation. A description of how the property’s condition violates the applicable Municipal Code section. 5. A list of necessary corrections to bring the property into compliance. 6. A deadline or specific date to correct the violations listed in the Notice of Violation. 7. A reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline including, but not limited to; criminal prosecution, civil injunction, administrative abatement, administrative citations, revocation of permits, recordation of the Notice of Violation, recordation of Certificates of Noncompliance and withholding of future municipal permits.
1.10.040 Service Of Notii
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A. Except for an initial Notice of Violation, whenever a notice is required to be given under the Municipal Code for enforcement purposes, the notice shall be served by any of the following methods unless different provisions are otherwise specifically st;ted to apply:
2: Personal service; or Certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned; or 3. Posting the notice conspicuously on or in front of the pro.perty. The form ofBhe post notice shall be approved by the City Manager, or his/her designee. Servtce by certrtied or regular marl in the manner described above shall be effective-on the date of mailing. C. The failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this Code. D. The notice requirements in this section do not apply to initial Notices of Violation, which may be sent by regular mail. Service of a Notice of Violation by regular mail is effective on the date of mailing.
1 .I 0.050 Notice Of Pendina Administrative Enforcement Action A. For purposes of this Chapter the Enforcement Officer may record with the County Recorder’s Office a notice against a property, which is the subject of an administrative enforcement action pending with the City of Carlsbad. B. A notice of pending administration action shall be on a form approved by the City Manager or his/her designee and shall describe the nature of the administrative action and refer to the Municipal Code governing the pending administrative action.
1 .I 0.060 Remedies Not Exclusive A. The procedures established in this Chapter shall be in addition to criminal, civil or other legal remedies established by law which may be pursued to address violations of this Municipal Code or applicable state codes and the use of this Chapter shall be at the sole discretion of the City.
ADMINISTRATIVE CITATIONS
1.10.070 Administrative Citations A. For purposes of this Chapter any person violating any provision of the Municipal Code may be issued an administrative citation by an Enforcement Officer as provided for in this Chapter. B. A continuing violation of the Municipal Code constitutes a separate and distinct violation each and every day that said violation exists. C. A citation penalty shall be assessed by means of an administrative citation issued by the Enforcement Officer and shall be payable directly to the City of Carlsbad. D. Penalties assessed by means of an administrative citation shall be collected in accordance with the procedures specified in this Chapter.
1 .I 0.080 Administrative Citation Procedures A. Upon discovering a violation of this code, an Enforcement Officer may issue an administrative citation to a Responsible Party in the manner prescribed in this Chapter. The administrative citation shall be issued on a form prescribed by the City Attorney. B. Any party responsible for a violation of this Code shall be provided a Notice of Violation prior to the issuance of an administrative citation. A Notice of
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Violation is not required before issuance of a second or any subsequent administrative citation for a continuing or repeated violation. C. A second or subsequent Notice of Violation does not need to be issued to the same party if a Notice of Violation for the same or similar violation has been issued within the prior year period. D. Failure to comply with any portion of a Notice of Violation may result in the issuance of an administrative citation. E. If the Responsible Party is not an individual, the Enforcement Officer shall attempt to locate the owner and issue the owner an administrative citation. If the Enforcement Officer can only locate the manager or on-site supervisor, the administrative citation may be issued in the name of the entity and given to said manager or on-site supervisor. A copy of the administrative citation shall also be mailed to the owner in the manner prescribed in Section 1.10.040 of this Chapter. F Once the Responsible Party is located, the Enforcement Officer shall attempt to obtain the signature of that person on the administrative citation. If the Responsible Party refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation and subsequent proceedings. G. If the Enforcement Officer is unable to locate the Responsible Party for the violation, then the a.dministrative citation shell be mailed to the Responsible Party in the marHner prescribed rn Sectton 1 .I 0.040 of this Chapter. If no one can be located at the property, the administrative citation shall be posted in a conspicuous place on or near the property and a copy subsequently mailed to the Responsible Party in the manner prescribed in Section 1.10.040 of this
ChaptY The failure of any person with an interest in the property to receive notice shall not affect the validity of any proceedings taken under this Chapter.
1 .I 0.090 Contents Of Administrative Citation A. The administrative citation shall refer to the date and location of the violations and the approximate time, if applicable, that the violations were observed. B. The administrative citation shall refer to the Municipal Code sections violated and describe how the sections have been violated. C. violations. The administrative citation shall describe the action required to correct the
D. The administrative citation shall require the Responsible Party to immediately correct the violations and shall explain the consequences of failure to correct the violations. E. The administrative citation shall state the amount of penalty imposed for the violations. F. The administrative citation shall explain how the penalty shall be paid and the time period by which it shall be paid, and the consequences of failure to pay the penalty. G. H. The administrative citation shall identify all appeal rights. The administrative citation shall contain the signature of the Enforcement Officer and the signature of the Responsible Party, if he/she can be located, as outlined in Section 1 .I 0.080.
1.10.100 Administrative Citation Penalties Assessed A. The penalty amount shall be assessed at a rate as adopted by resolution of the City Council. B. All penalties assessed shall be payable to the City within thirty (30) days from the date of the administrative citation. C. Any administrative citation penalty paid pursuant to this section shall be refunded in accordance with Section 1.10.140 if it is determined, after a hearing, that
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the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation. D. Payment of the penalty shall not excuse the failure to correct the violatio;s nor shall it barfurther enforcement action by the City. , If the Responsible Party falls to correct the vrolation, or has the same or similar violation within a one year period, subsequent administrative citations may be issued. The amount of the penalty shall increase at a rate specified by resolution of the City Council.
1 .I 0.4 1: Failure T? Pav Administrative Citation Penalties The farlure of any person to pay a penalty assessed by administrative citation within the time specified on the citation, without the filing of an appeal as provided in Section 1 .I 0.120, shall result in the assessment of an additional late fee. The amount of the late fee shall be 100% of the total amount of the administrative penalty. B. The failure of any person to pay a penalty assessed by administrative citation within the time specified on the citation constitutes a debt to the City. To enforce that debt, the City may file a civil action, improve a special assessment as set forth beCow, or pursue any other legal remedy to collect such money. The City may impose a special assessment against the property that is the subject of a citation if the citation has been issued to the property owner. The City shall record a notice of lien in the office of the county recorder when the special assessment procedure is used. When so made and confirmed, the cost shall constitute a lien on that property for the amount of the assessment. After confirmation and recordation, a copy shall be turned over to the San Diego County Tax Collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular property tax bills levied against the lots and parcels of land for municipal purposes. Those amounts shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale as provided for with ordinary municipal taxes. Or, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law.
1.10.120 Appeal Of Administrative Citation A. Any recipient of an administrative citation may contest the citation by completing a request for hearing form and returning it to the City within thirty (30) days from the date of the administrative citation, together with an advance deposit of the fine or notice that a request for an advance deposit hardship waiver has been filed pursuant to subsection (E) of this Section. If the deadline falls on a. weekend or City holiday, then th; deadline shall be extended until the next regular business day. A request for heanng form may be obtained from the City of Carlsbad Finance’ Department (the “Finance Department”) or the department specified on the administrative citation. C. The person requesting the hearing shall be notified of the time and place set for Fe heanng at least ten days prior to the date of the hearing. If the Enforcement Officer submits an additional written report concerning the administrative citation to the Administrative Hearing Officer at the hearing, then a copy of that report shall also be served on the person requesting the hearing at least five (5);ays prior to the date of the hearing. Advance Deoosrt Hardship Waiver 1. Any person who intends to request a hearing to contest that there was a violation of the Code or that he or she is the Responsible Party and who is financially unable to make the advance deposit of the fine as required may file a request for an advance deposit hardship waiver.
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2. The request shall be filed with the Finance Department on an advance deposit hardship waiver application form available from the Finance Department, ;ithin ten (10) days of the date of the administrative citation. The, requirement of depositing the full amount of the fine as required shall be stayed unless or until the Finance Department designee makes a determination4not to issue the advance deposit hardship waiver. The Finance Department designee may waive the requirement of an advance deposit and issue the advance deposit hardship waiver only if the cited party submits to the Finance Department a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the Finance Department the person’s actual financial inability to deposit with the City the full amount of the fine in advance of th; hearing. If the Finance Department determines not to issue an advance deposit hardsh’ip waiver, the person shall remit the deposit to the City within ten (10) days of the date of that decision or thirty (30) days from the date of the administrative citation, whichever is later. 6. The Finance Department shall issue a written determination listing the reasons for the determination to issue or not issue the advance deposit hardship waiver. The written determination of the Finance Department shall be final. 7. The written determination of the Finance Department shall be served upon the person who applied for the advance deposit hardship waiver.
ADMINISTRATIVE HEARINGS
1 .I 0.130 Administrative Enforcement Hearing Procedures A. Hearinq Procedure 1. No hearing to contest an administrative citation before an Administrative Hearing Officer shall be held unless the fine has been deposited in advance or an advance deposit hardship waiver has been issued. 2. A hearing before the Administrative Hearing Officer shall be set for a date that is not less than fifteen (15) days and not more than sixty (60) days from the date that the yquest for hearing is filed. Notice of the Administrative Enforcement Hearing shall be mailed to the appealiib person in the manner prescribed by section 1.1.0.040 of this Chapter. The failure of any person with an interest In the property, or other responsible party, to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this Chapter. 5. The failure of any recipient of an administrative citation to appear at the hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies. 6. At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation. 7. The administrative citation and any additional report submitted by the Enforcement Officer shall constitute prima facie evidence of the respective facts contained in those documents. 8. The Administrative Hearing Officer may continue the hearing and request additional information from the Enforcement Officer or the recipient of the administrative citation prior to issuing a written decision. 9. Failure of any person to file an appeal in accordance with the provisions of this section shall constitute a waiver of that person’s rights to administrative determination of the merits of the citation and the amount of the penalty. If no appeal is filed, the citation shall be deemed a final administrative order. B. Hearinq Officer’s Decision
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1. After considering all of the testimony and evidence submitted at the hearing, the Administrative Hearing Officer shall issue a written decision to uphold or cancel the administrative citation and shall list in the decision the reasons for that decision. The decision of the Administrative Hearing Officer shall be final. 2. As part of the Administrative Citation Enforcement Order, the Administrative Hearing Officer may reduce, waive or conditionally reduce the penalties or late fees assessed by the citation. 3 The Administrative Hearing Officer may also impose conditions and deadlines to correct the violations or require payment of any outstanding penalties.
administrative4costs incurred by the City as described in Section 1 .lO.Ol 0 The Administrative Hearing Officer may assess reasonable
5. If the Administrative Hearing Officer determines that the administrative citation should be upheld, then the fine amount on deposit with the City shall be retainged by the City. If the Administrative Hearing Officer determines that the administrative citation should be upheld and the fine has not been deposited pursuant to an advance deposit hardship waiver, the Administrative Hearing Officer shall set forth in the decision a payment schedule for the fine. 7. If the Administrative Hearing Officer determines that the administrative citation should be canceled and the fine was deposited with the City, then the City shall promptly refund the amount of the deposited fine, together with interest at the average rate earned on the City’s portfolio for the period of time that the fine amount w;s held by the-City. The recipient of the administrative citation shall be served with a copy of the Administrative Hearing Officer’s written decision. 9. The employment, performance evaluation, compensation and benefits of the Administrative Hearing Officer shall not be d/rectly or indirectly conditioned upon the amount of the administrative citation fines upheld by the Adminis;trative Hearing Officer. Riaht to Judicial Review
file an appeal’iith the Municipal Court for de novo review. The request for review shall After receipt of the hearing officer’s decision the respondent may
be submitted within 20 days of the date that the citation is deemed a final administrative order. The request for review shall be submitted on a form prescribed by the Court to the City of Carlsbad, along with the applicable filing fee. The request for Municipal Court review shall state the reasons the party objects to the hearing officer’s findings or decision. 2. A copy of the Notice of Violation and imposition of penalty shall be entered as prima facie evidence of the facts stated therein. 3. If the Court finds in favor of the respondent, the amount of the fee shall be reimbursed to the respondent by the City. Any deposit of penalty shall be refunded by the City in accordance with the judgment of the Court. 4. If the penalty has not been deposited, and the decision of the Court is against the respondent, the City may proceed to collect the civil penalty in the manner provided by law.
1 .I 0.140 Administrative Hearing Officer The City Manager or his/her designee shall promulgate rules and procedkes as are necessary to establish a pool of quaked persons who are capable of acting on behalf of the City as Administrative Hearing Officers.
be appkted and compensated by the City Manager or his designee Administrative Hearing Officers presiding at administrative hearings shall The City Manager, or his designee shall develop policies and brocedures relating to the employment and compensation of Administrative Hearing Officers.
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C. Any person designated to serve as an Administrative Hearing Officer is subject to disqualification for bias, prejudice, interest, or for any other reason for which a judge may be disqualified in a court of law. Rules and procedures for the disqualification of an Administrative Hearing Officer shall be promulgated by the City Manager, or his/her designee.
EFFECTIVE DATE: This ordinance shall be effective thirty days after its
adoption, and the City Clerk shall certify the adoption of this ordinance and cause it to
be published at least once in a newspaper of general circulation in the City of Carlsbad
within fifteen days after its adoption.
INTRODUCED AND FIRST READ at a regular meeting of the Carlsbad
City Council on the 12th day of June ,2001, and thereafter
PASSED AND ADOPTED at a regular meeting of the City Council of the
City of Carlsbad on the 19th day of June , 2001, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Finnila, Nygaard, and Hall.
NOES: None.
ABSENT: None.
APPROVED AS TO FORM AND LEGALITY
2 I ,
ATTEST: /
D, City Clerk (SEAL)
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