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HomeMy WebLinkAbout2022-10-11; City Council; ; Adoption of Ordinance No. CS-434 Amending Carlsbad Municipal Code Chapter 1.08 – Penalties and Chapter 1.10 – Administrative Code Enforcement RemediesCA Review CKM Meeting Date: Oct. 11, 2022 To: Mayor and City Council From: Scott Chadwick, City Manager Staff Contact: Faviola Medina, City Clerk Services Manager faviola.medina@carlsbadca.gov, 442-339-5989 Subject: Adoption of Ordinance No. CS-434 Amending Carlsbad Municipal Code Chapter 1.08 – Penalties and Chapter 1.10 – Administrative Code Enforcement Remedies Districts: All Recommended Action Adopt Ordinance No. CS-434 amending Carlsbad Municipal Code Chapter 1.08 – Penalties and Chapter 1.10 – Administrative Code Enforcement Remedies. Executive Summary/Discussion The city’s code enforcement program is focused on achieving voluntary compliance with the provisions of the city’s municipal code, not on issuing financial penalties. However, the traditional administrative penalties process is sometimes inadequate, and stronger enforcement remedies are needed. The action before the City Council is to adopt an ordinance amending the Carlsbad Municipal Code to: •Increase fines for certain violations, as defined in Chapter 1.10 •Add the ability for code enforcement officers to issue stop work and stop use orders (following approval from the Community Development Director or designee) •Enable the city and administrative hearing officers to issue civil penalties •Expand the ability to impose property liens •Improve the ability to enforce ongoing project conditions •Make other related changes Ordinance No. CS-434 was introduced and first read at the City Council meeting held on Sept. 27, 2022. On a motion by Mayor Pro Tem Blackburn, seconded by Council Member Bhat- Patel, the City Council voted 5-0 to introduce Ordinance No. CS-434. The second reading allows the City Council to adopt the ordinance, which will become effective 30 days after its adoption. Oct. 11, 2022 Item #6 Page 1 of 23 Fiscal Analysis The existing fiscal year 2022-23 budget includes sufficient funding for the cost of amending Carlsbad Municipal Code Chapters 1.08 and 1.10. The city is unable to determine the exact fiscal impact of this ordinance. However, the increased fines may offset some of the code enforcement program costs and potentially free up more staff time for other code cases, assuming cases can be resolved more expeditiously under the amended ordinance. Next Steps The City Clerk Services Manager will have the ordinance, or a summary of the ordinance, published in a newspaper of general circulation within 15 days following adoption of the ordinances. Environmental Evaluation This activity is not a project as defined by the California Environmental Quality Act Section 21065 and CEQA Guidelines Section 15378(b)(4), because the action is intended to clarify and improve upon current city enforcement regulations. The activity is also not a project because it has no potential to cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment. Public Notification This item was noticed in keeping with the Ralph M. Brown Act and it was available for public viewing and review at least 72 hours before the scheduled meeting date. Exhibits 1. Ordinance No. CS-434 Oct. 11, 2022 Item #6 Page 2 of 23 Exhibit 1 ORDINANCE NO. CS-434 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AMENDING CARLSBAD MUNICIPAL CODE TITLE 1, CHAPTER 1.08 – PENALTIES AND CHAPTER 1.10 – ADMINISTRATIVE CODE ENFORCEMENT REMEDIES WHEREAS, the enforcement of the Carlsbad Municipal Code throughout the City of Carlsbad is an important public service and is vital to the protection of the public’s health, safety, and quality of life; and WHEREAS, Chapter 1.08 of the code establishes penalties for violations of the code; and WHEREAS, amendments to Chapter 1.08 are necessary to more effectively enforce the code; and WHEREAS, Chapter 1.10 establishes alternative administrative methods of code enforcement, and a comprehensive code enforcement system using a combination of judicial and administrative remedies is necessary to gain compliance with the code; and WHEREAS, amendments to Chapter 1.10 are necessary so that the code enforcement remedies can be more effectively applied in judicial and administrative proceedings and to clarify and improve the procedures used for administrative enforcement hearings. NOW, THEREFORE, the City Council of the City of Carlsbad, California, ordains as follows: SECTION I: The above recitations are true and correct. SECTION II: Carlsbad Municipal Code Title 1, Chapter 1.08 is amended to read as follows: Chapter 1.08 PENALTIES Sections: 1.08.010 Violations—penalties. 1.08.020 Authority of city employee to arrest. 1.08.030 Authority of police rangers to arrest. 1.08.010 Violations—penalties. A. General 1. Except as otherwise provided in this code, a violation of any provision of this code, or a violation of any permit or license issued under this code, may be charged as an infraction. 2. A violation of any provision in Titles 8 or 11 of this code, or any other provision specifically stating a violation is a misdemeanor, may be charged as an infraction or a misdemeanor at the discretion of the city attorney. Oct. 11, 2022 Item #6 Page 3 of 23 3. Nothing contained in this code abrogates the city attorney’s discretion to reduce any act chargeable as a misdemeanor under this chapter to an infraction if the city attorney determines the reduction serves the interest of justice. 4. Aiding and abetting. Whenever a provision of this code prohibits any act or omission, the provision also prohibits the causing, permitting, aiding, abetting, suffering, maintaining, or concealing of the act or omission. Any person who causes, permits, aids, abets, suffers, maintains, or conceals the act or omission is guilty of a violation of this code and subject to the punishment prescribed for the act or omission. 5. Separate Violations. Each day during any portion of which a violation of this code is committed, continued, or permitted is a separate offense. 6. A conviction or payment of a fine or penalty for any violation of this code does not excuse or exempt compliance with all provisions of this code, including payment of any tax, fee, or other charge required by this code. 7. Nothing contained in this chapter shall preclude the city from enforcing the provisions of this code through any other legal or equitable remedies, including the administrative remedies contained in Chapter 1.10 and/or the public nuisance abatement procedures in Chapter 6.16 of this code. B. Criminal penalties. 1. Misdemeanor. Except as otherwise provided in this code, a violation of this code determined to be a misdemeanor is punishable by a fine not exceeding $1,000.00, imprisonment in county jail for a term not exceeding six months, or both. 2. Infraction. a. A violation of this code determined to be an infraction is punishable by a fine as provided for in California Government Code Section 36900, subdivision (b). b. Notwithstanding any other law, a violation of a local building or safety code determined to be an infraction is punishable by a fine as provided for in California Government Code Section 36900, subdivision (c). c. Notwithstanding any other law, a violation of Chapter 5.60 Short Term Vacation Rentals of this code that poses a threat to public health or safety is punishable by a fine as provided for in California Government Code Section 36900, subdivision (d). These enhanced fines apply to “short-term rentals” and “residential dwellings,” as defined in California Government Code Section 36900, subdivision (d)(2) and (d)(3). d. A person fined for an infraction under California Government Code Section 36900, subdivisions (b)(2), (b)(3), (c)(2), or (c)(3), who meets the requirements of California Government Code Section 36900, subdivision (e), may request a hardship waiver under that subdivision to reduce the amount of the fine. 3. In addition to a monetary fine set forth in this subsection B, both conditional sentencing and probation are authorized as sentencing options in accordance with California Penal Code Section 1203, subdivision (a). C. Civil penalties. Any provision of this code may be enforced by a civil suit brought by the city, a civil injunction issued by the Superior Court, or any other civil legal or equitable remedy. As part of a civil action, the court may assess a civil penalty for each day the violator commits, continues, allows or maintains the violation. Civil penalties may also be issued administratively pursuant to Section 1.10.060 of this code. 1.08.020 Authority of city employee to arrest. A. The city manager or a deputized city employee is authorized under California Penal Code Section 836.5 to arrest a person without a warrant whenever the employee has reasonable cause to believe the person to be arrested committed a misdemeanor offense in the employee’s presence that is a violation of this code or any uncodified city building or zoning ordinance. B. The city manager may deputize a city employee to exercise the power of arrest described in subsection A of this section if the employee has completed an introductory course of training prescribed by the Commission Oct. 11, 2022 Item #6 Page 4 of 23 on Peace Officer Standards and Training pursuant to California Penal Code Section 832. Nothing in this section authorizes a deputized employee to carry a firearm. 1.08.030 Authority of police rangers to arrest. A. The city manager or a deputized police ranger is authorized under California Penal Code Section 836.5 to arrest a person without a warrant whenever the police ranger has reasonable cause to believe the person to be arrested committed a misdemeanor or infraction in the employee’s presence that is a violation of any provision of this code or the animal control provisions of the San Diego County Code as adopted by reference in Section 7.08.010(B) of this code. B. The city manager may deputize a police ranger to exercise the power of arrest described in subsection A of this section if the police ranger has satisfactorily completed an introductory course of training prescribed by the Commission on Peace Officer Standards and Training pursuant to California Penal Code Section 832. Nothing in this section authorizes a deputized police ranger to carry a firearm. SECTION III: Carlsbad Municipal Code Title 1, Chapter 1.10 is amended to read as follows: Chapter 1.10 ADMINISTRATIVE CODE ENFORCEMENT REMEDIES Sections: Article I. General 1.10.005 Purpose and intent. 1.10.010 Definitions. 1.10.015 Remedies not exclusive. 1.10.020 General enforcement authority. 1.10.025 Procedural compliance. 1.10.030 Notice of violation. 1.10.040 Service of notices, orders, and citations. 1.10.050 Notice of pending administrative enforcement action. 1.10.055 Administrative costs. 1.10.060 Civil penalties. Article II. Administrative Citations and Appeals 1.10.070 Administrative citations. 1.10.080 Administrative citation procedures. 1.10.090 Contents of administrative citation. 1.10.100 Administrative penalties assessed. 1.10.110 Failure to pay administrative penalties; late fees. 1.10.115 Transfer of ownership. 1.10.120 Appeal of notice, order, or administrative citation. Article III. Administrative Hearings 1.10.130 Administrative hearing procedures. 1.10.140 Additional rules and procedures for administrative hearing officers and administrative hearings. Article I. General 1.10.005 Purpose and intent. The enforcement of this 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. There is a need for alternative methods of Oct. 11, 2022 Item #6 Page 5 of 23 code enforcement, and a comprehensive code enforcement system uses a combination of judicial and administrative remedies to gain compliance with code regulations. There is a need to draft precise regulations that can be effectively applied in judicial and administrative proceedings, and there is a need to establish uniform procedures for administrative enforcement hearings. 1.10.010 Definitions. The following definitions apply in interpreting and enforcing this chapter: “Administrative code enforcement remedies” include administrative abatement, summary abatement, civil penalties, notices of violation, administrative citations, recordation of notices of violation and certificates of noncompliance, and the withholding or revocation of permits as authorized by this code. “Administrative costs” means the actual costs incurred by the city from first discovery of a violation through the appeal process and until compliance is achieved, including staff time inspecting property, documenting violations, sending notices, and interviewing and responding to witnesses/complaining parties; laboratory, photographic, printing and other expenses incurred to document or establish the existence of a violation; scheduling and processing of any administrative hearing and related actions; and time and resources necessary to prepare for and participate in any appeal hearing. The amount of administrative costs shall not exceed the actual cost incurred in performing inspections and enforcement activity, including permit fees, fines, late charges, and interest. “Administrative enforcement order” means an administrative hearing officer’s written decision and order. “Administrative hearing officer” means any neutral third party contracted by the city to preside over administrative hearings. “Administrative penalty” means a monetary fine imposed by the city for acts or omissions determined to violate this code. “Director” means the director of any city department, including, but not limited to, the director of community development, the director of public works, the director of finance, and the director of environmental management. “Enforcement officer” means any city employee or agent of the city with the authority to enforce any provision of this code. “Notice” means a notice of violation, a notice and order for civil penalties, a notice of ineligibility for land development, a notice of hearing, and any notice and order that may be issued by the city pursuant to this code or any state code. “Person” means a natural person, firm, association, business, trust, organization, corporation, partnership, company, or other entity, which is recognized by law as the subject of rights or duties. “Responsible party” means a person in charge of a premises or location, or a person responsible for an event or incident, and includes any of the following: 1. A person who owns a property where a violation exists. 2. A person in charge of or exercising control over a premises where a violation exists. 3. A person renting, leasing, or using a premises where a violation exists. 4. If a person is a minor under the age of 18, the parents or guardians of the minor shall be the responsible party. 5. If a person is a business entity, the manager or on-site supervisor where a violation exists shall be a responsible party. 1.10.015 Remedies not exclusive. The procedures established in this chapter shall be in addition to criminal, civil, or other legal and equitable remedies established by law which may be pursued to address violations of this code or applicable state codes, including cease and desist orders for violations that pose a threat to health, safety, welfare, or the environment. The use of this chapter shall be at the sole discretion of the city. Oct. 11, 2022 Item #6 Page 6 of 23 1.10.020 General enforcement authority. A. Unless otherwise specified in this code, the city manager or designee or designated enforcement officer shall have the power to inspect public and private property, and use the judicial and administrative remedies available under this code and state law to enforce any violation of any provision of this code, any permit or license approved pursuant to any provision of this code, any condition of approval of a permit or entitlement granted pursuant to any provision of this code, any required environmental mitigation measure, any term or condition of any city agreement pursuant to a police power, or any order issued by or on behalf of the city or by an administrative hearing officer contracted with the city. B. The city manager or designee or designated enforcement officer shall have the power to issue the following notices, orders, and citations in accordance with the procedures set forth in Section 1.10.040 of this chapter, unless another procedure is specified in this section: 1. Notice of violation. A notice of violation may be issued to a responsible party pursuant to the procedures of Article I of this chapter. 2. Administrative citation. An administrative citation may be issued to a responsible party pursuant to the procedures of Article II of this chapter. 3. Compliance agreement and order. At the discretion of the code enforcement manager and in consultation with the city attorney, a compliance agreement and order may be executed with a property owner and any responsible party(ies) to ensure ongoing and long-term actions to remedy any violation of this code or other violation as stated in Section 1.10.020(A) of this chapter. The compliance agreement and order may contain a compliance schedule with milestones, penalty payment plans and due dates, action plans, compliance meetings, or other measures necessary to achieve and maintain compliance. 4. Notice of hearing. a. The city manager or designee may issue a notice of nuisance abatement hearing for violations of Chapter 6.16 of this code to a property owner and any additional responsible party pursuant to the procedures in Chapter 6.16 of this code. b. For all other violations of this code or other violations as stated in Section 1.10.020(A) of this chapter, a designated enforcement officer may issue a notice of hearing to a property owner and any additional responsible party if cure or abatement of the violation(s) is not achieved by the compliance date provided on the notice, administrative citation, or order, or within three business days of issuance if no date is provided. c. The following procedures shall apply when a notice of hearing is issued: i. The city shall file the notice of hearing with the city clerk’s office. ii. The hearing shall be scheduled, noticed, and administered in accordance with Article III of Chapter 1.10 of this code. iii. The person requesting the hearing shall be notified of the time and place set for the hearing at least 10 calendar days prior to the date of the hearing. iv. If the enforcement officer submits an additional written report concerning the violation 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 calendar days prior to the date of the hearing. v. Within 15 days of receipt of the notice of hearing, the property owner or responsible party shall pay an advance deposit of the full amount of any administrative penalties owed or file a request for an advance deposit hardship waiver pursuant to Section 1.10.120(F) of this chapter. A failure to comply with the requirements of this provision will not prohibit the city from proceeding with the hearing. 5. Stop work order and stop use order. a. Reason for issuance. Without advance written notice, a stop work order or stop use order may be issued to a property owner or responsible party to immediately cease any construction, Oct. 11, 2022 Item #6 Page 7 of 23 installation, operation, or activity, or to immediately cease the use of a building, building component, structure, or mechanical device for any of the following reasons: i. There is reasonable cause to believe that the construction, installation, activity, existing condition, or method of operation creates an imminent danger to public safety or health as a result of a violation of this code or of other applicable law. ii. The activity is being performed or conducted by an individual who does not hold the appropriate license, certification, or registration as required by this code or by other applicable law. iii. The construction, installation, activity, or operation has not been approved or has not been issued the appropriate permit as required by this code or by other applicable law. iv. Where a permit has been issued and no imminent danger circumstances defined in Section 1.10.020(B)(5)(a)(i) of this chapter exist, the city attorney’s office must review the stop work order or stop use order before issuance to ensure the work or use is unlawful. b. Issuance of order. i. Unless otherwise specified in this code, a stop work order or stop use order shall be issued only upon the review and approval of the director of community development or designee. This section is not intended to conflict with, override, or interfere with other sections of this code that provide the building official, city engineer, director of public works, city planner, or their designee with primary stop work order authority and enforcement responsibility. ii. A stop work order or stop use order shall be in writing and shall be served using the procedures in Section 1.10.040(A)(2) of this chapter, requiring posting and mailing. iii. The stop work order or stop use order shall include at least all of the following: (A) The date and location of the violation(s) and, if applicable, the approximate time the violation(s) were observed. (B) The code section(s) violated and describe how the section(s) were violated. (C) A description of the application and the extent of the order describing the object, component, or activity covered by the order. A stop work order or stop use order issued in relation to the construction of a building may not extend to other activities or portions of a building, structure, building component, or mechanical device that is not directly associated with the reason for the stop work order or stop use order. (D) A description of the action required to correct the violation(s) and a requirement that the corrective action take place immediately. (E) A reference that the stop work order or stop use order shall remain in effect until the enforcement officer or city manager or designee determines that the conditions of the order are fulfilled, or until the order is rescinded or overturned by the city manager or designee. (F) The signature of the issuing enforcement officer and the director of community development or designee, or if issued pursuant to another chapter of this code, the signature of the issuing building official, city engineer, director of public works, city planner, or their designee. The city attorney’s office must also review any stop work order or stop work order issued pursuant to Section 1.10.020(B)(5)(a)(iv) of this chapter. (G) Instructions for submitting a request to appeal the stop work order or stop use order to the city manager or designee, consistent with Section 1.10.020(B)(5)(c) of this chapter. (H) A reference to the potential consequences should the property owner or responsible party refuse to immediately comply with the conditions of the stop work order or stop use order, including criminal prosecution; civil injunction; administrative abatement; additional administrative citations; an administrative hearing requested by the city to resolve the violations; suspension, revocation, or stay of issuance of municipal permits or other city authorizations; recordation of notices of violation, certificates of Oct. 11, 2022 Item #6 Page 8 of 23 noncompliance, or notices of ineligibility for land development; bonding requirements; and referral to other enforcement authorities. iv. The city may post a sign or notice to the public regarding the issuance of a stop work order or stop use order. The sign or notice shall be posted in a conspicuous location and shall remain where posted until the enforcement officer or city manager determines that the conditions of the order are fulfilled, or until the order is rescinded or overturned by the city manager. v. The property owner or responsible party must furnish to the city any additional information, investigations and reports necessary to resolve the stop work order or stop use order conditions. The property owner or responsible party must pay for all expenses associated with furnishing these items, as well as any additional staff time to resolve the stop work order or stop use order conditions. vi. Any person who continues or allows prohibited work or a prohibited use after a stop work order or stop use order has been issued by the city, or who removes a stop work order or stop use order posted by the city, is in violation of the stop work order or stop use order. This offense will be treated as a violation of this code and may be prosecuted as an infraction or misdemeanor at the discretion of the city attorney. The city may use any other available legal or equitable remedy to recover any penalties, costs, fees, and obtain compliance with the stop work order or stop use order, as provided in this code or other applicable law. c. Appeal of stop work order or stop use order to the city manager or designee. i. The recipient of a stop work order or stop use order or any person who is adversely affected by the order may request to appeal the order to the city manager or designee within 30 calendar days of posting of the order. ii. A request to appeal a stop work order or stop use order shall be in writing and shall include a statement of the specific reasons why the person believes that the issuance of the order is incorrect or inappropriate. Request to appeal forms may be obtained from the city’s website, the code enforcement division, or the department or division specified on the stop work order or stop use order. iii. The request to appeal shall be filed with the department or division specified on the stop work order or stop use order. iv. Hearing on appeal and decision of city manager or designee. (A) The city manager or designee shall set a date, time, and location for the appeal hearing on a date no later than 10 business days after the request to appeal has been filed, unless the parties stipulate to a later date. (B) At the hearing, the party contesting the stop work order or stop use order shall have an opportunity to testify and to present evidence concerning the stop work order or stop use order. Formal rules of evidence shall not apply during the hearing. (C) Any city-issued notices, administrative citations, and additional report(s) submitted by an enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. (D) The city manager or designee may continue the hearing and request additional information from the enforcement officer, the recipient of the stop work order or stop use order, or the property owner prior to issuing a written decision. (E) The failure of any person requesting to appeal a stop work order or stop use order to appear at any scheduled appeal hearing shall result in the dismissal of the appeal and a failure to exhaust administrative remedies. (F) The failure of any person to file a request for appeal in accordance with the provisions of this section shall constitute a waiver of the person’s rights to an administrative determination of the merits of the stop work order or stop use order. If no request for appeal is filed, the stop work order or stop use order shall be deemed a final order. Oct. 11, 2022 Item #6 Page 9 of 23 (G) The city manager or designee shall issue a written decision within five business days following an appeal hearing of a stop work order or stop use order. The written decision shall include information about appeal rights and procedures if the decision adversely affects the person requesting the appeal. d. Administrative review hearing. i. A person adversely affected by the decision of the city manager or designee under Section 1.10.020(B)(5)(c) of this chapter concerning a stop work order or stop use order may file an appeal of the decision to be reviewed by an administrative hearing officer, in accordance with the procedures of Section 1.10.120 of this chapter and Article III of Chapter 1.10 of this code. ii. A request for a hearing to review the decision of the city manager or designee regarding a stop work order or stop use order shall include a statement of the specific reasons why the person believes the decision is incorrect or inappropriate. iii. A request for a hearing to review the decision of the city manager or designee regarding a stop work order or stop use order shall be denied if the request is received more than 30 calendar days after issuance of the decision. iv. An administrative hearing to review the decision of the city manager or designee regarding a stop work order or stop use order shall be governed by the provisions of Section 1.10.120 and Article III of Chapter 1.10 of this code. 7. Notice of intent to determine ineligibility for land development. a. Any person who fails to perform construction, grading, building, or other work in accordance with a city-issued permit or who performs construction, grading, building, or other work in violation of applicable provisions of this code, a city-issued permit or order, conditions of approval, or other regulatory requirements, along with the property owner, may be served a notice of intent to determine ineligibility for land development, which prohibits the continuation of development or construction activities on the property where the violation occurred. b. The notice of intent required by this section must: i. Be served on the responsible party and property owner personally, or posted on the property and mailed by certified mail and first-class mail to the address shown on the most recent tax assessment roll; ii. State the city’s intent to record a notice of ineligibility for land development against the property; iii. Fix a location, time, and date, not less than 15 calendar days after delivery of the notice, at which an administrative hearing will occur; and iv. Explain that during the hearing the responsible party and property owner may submit written or oral comments or reasons why a notice of ineligibility should not be recorded. c. The ineligibility hearing must: i. Be held at the appointed time, or at a time agreed to by all parties; ii. Provide the responsible party and property owner an opportunity to present written or oral comments or reasons why a notice of ineligibility should not be recorded against the property; iii. Result in a determination of whether a violation occurred, whether it has been remedied, and whether to record a notice of ineligibility for land development; and iv. Comply with the hearing requirements of Chapter 1.10 of this code to the extent those requirements do not conflict with the requirements of this section. d. A notice of ineligibility for land development that is recorded in accordance with this section remains in effect until the enforcement officer records a release of notice of ineligibility for land development. A release of notice of ineligibility for land development may be recorded when the responsible party implements all required plans and best management practices (if applicable) Oct. 11, 2022 Item #6 Page 10 of 23 and remedies all noncompliant site conditions as described in the notice of ineligibility for land development. During the effective dates of any notice of ineligibility recorded in accordance with this section, no application for a building permit, administrative permit, site plan, use permit, variance, tentative parcel map, tentative map, parcel map, final map, or any other permit for the development of the property on which the violation occurred will be approved. e. This remedy is not intended to conflict with any other notices that may be recorded against a property for violations of this code. 8. Bonding requirement. A responsible party may be required to post a bond or other security instrument to assure the correction of a violation of any provision of this code or other violation as stated in Section 1.10.020(A) of this chapter. 9. Referral to other enforcement authorities. Where required or appropriate, violations of this code or other violations as stated in Section 1.10.020(A) of this chapter may be referred to agencies having authority over the action constituting a violation. C. Each type of notice, order, or citation authorized by this code may be issued alone, or it may be combined with any other type of notice, order, or citation. D. The city manager may establish rules and procedures necessary to implement the provisions of this chapter. E, This section is not intended to replace or override any enforcement powers that are provided to other designated city employees in this code or in any other applicable law. 1.10.025 Procedural compliance. Failure to comply with any procedural requirement of this chapter, to receive any notice, decision, or order specified in this chapter, or to receive any copy required to be provided by this chapter does not affect the validity of proceedings conducted under this chapter unless the responsible person is denied constitutional due process by the failure. 1.10.030 Notice of violation. An enforcement officer may issue a notice of violation to a responsible party in response to any violation of any provision of this code, any permit or license approved pursuant to any provision of this code, any required environmental mitigation measure, any term or condition of any city agreement pursuant to a police power, or any order issued by or on behalf of the city or by an administrative hearing officer contracted with the city. The notice of violation shall include the following information: A. The name of the record owner of the property. B. Street address. C. The code section(s), provision(s), condition(s), or term(s) violated. D. A description of how the property’s condition violates the applicable code section(s), provision(s), condition(s), or term(s). E. A description of necessary corrections to bring the property into compliance. F. A reasonable deadline or specific date to correct the violations listed in the notice of violation. G. If the notice of violation is issued for a public nuisance under Chapter 6.16 of this code, an advisement that the responsible party has 10 calendar days from the date of mailing of the notice of violation to file an appeal, or 10 calendar days from the date of personal service of the notice of violation if served using this method. H. A reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline, including criminal prosecution; civil injunction; administrative abatement; administrative citations; an administrative hearing requested by the city to resolve the violations; suspension, revocation, or stay of issuance of municipal permits or other city authorizations; recordation of notices of violation, certificates of noncompliance, or notices of ineligibility for land development; bonding requirements; and referral to other enforcement authorities. Oct. 11, 2022 Item #6 Page 11 of 23 1.10.040 Service of notices, orders, and citations. A. Except for an initial notice of violation, whenever a notice, order, or administrative citation is required to be given under this code for enforcement purposes, the notice, order, or administrative citation shall be served on a responsible party by any of the following methods unless different provisions are otherwise specifically stated to apply: 1. Personal service. 2. Posting the notice, order, or administrative citation conspicuously on or in front of the property that is the subject of the violation and subsequently mailing a copy to a responsible party in the manner described in subsection (A)(3) of this section. The form of the posted notice, order, or administrative citation shall be approved by the city attorney or designee. 3. Certified mail, postage prepaid, return receipt requested to the property address and any other mailing address(es) on file with the county tax collector and the county assessor. The city may, but is not required to, provide this form of notice to any other known address for a responsible party. a. Simultaneous to service by certified mail, the same notice, order, or administrative citation may also be sent by regular mail to the property address(es) on file with the county tax collector and the county assessor. b. If a notice, order, or administrative citation sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to any regular mailing. However, if the notice, order, or administrative citation sent by both regular mail and certified mail are returned, the notice, order, or administrative citation must be served pursuant to subsection (A)(1) or (A)(2) of this section. c. Service by certified or regular mail in the manner described in this subsection is effective on the date of mailing. B. The failure of a responsible party to receive any notice, order, or administrative citation served in accordance with this chapter shall not affect the validity of any proceedings taken under this code. C. The notice requirements in this section do not apply to initial notices of violation, which may be sent by regular mail to the property address(es) on file with the county tax collector and the county assessor. Service of a notice of violation by regular mail is effective on the date of mailing. D. If a responsible party is not an individual, the enforcement officer shall attempt to identify the property owner and issue the property owner the notice, order, or administrative citation. If the enforcement officer can only identify the manager or onsite supervisor of the property, the notice, order, or administrative citation may be issued in the name of the property owner and served upon the manager or onsite supervisor in the manner provided in this chapter. A copy of the notice, order, or administrative citation shall also be mailed to the property owner in the manner prescribed by this section. E. If the property that is the subject of a violation is owned by a corporation, notices and administrative citations may be served by certified mail to the registered agent for the corporation. 1.10.050 Notice of pending administrative enforcement action. A. For purposes of this chapter the enforcement officer may have a notice recorded with the county recorder’s office against a property that is the subject of a pending administrative enforcement action with the city. B. The notice of the pending administrative enforcement action shall be on a form approved by the city attorney or designee and shall describe the nature of the administrative enforcement action, the owner’s assessor’s parcel number, the parcel’s legal description, a copy of the latest notice of violation, and the governing code section(s). C. Notification letter. 1. Prior to recording the notice of pending administrative enforcement action, the enforcement officer shall serve a notification letter on the responsible party and property owner stating that the notice of pending administrative enforcement action will be recorded unless a request for hearing form is filed pursuant to the procedures outlined in Section 1.10.120 of this chapter, except that the time to file the request for hearing form is 10 calendar days from the date of mailing of the notification letter. Oct. 11, 2022 Item #6 Page 12 of 23 2. The notification letter shall be served on the responsible party and property owner pursuant to any of the methods of service set forth in Section 1.10.040 of this chapter. The enforcement officer may also send a courtesy copy of the letter to any other party with an interest in the property. 3. If a request for hearing form is not received by the city within 10 calendar days of the date of mailing of the notification letter, the enforcement officer may record the notice of pending administrative enforcement action if the code violations remain. The failure of any person to file a request for hearing form in accordance with these provisions shall constitute a waiver of the right to an administrative hearing and shall not affect the validity of the recorded notice of pending administrative enforcement action. D. Hearing prior to recordation of notice of pending administrative enforcement action. 1. Any hearing conducted upon receipt of a request for hearing form shall follow the procedures set forth in Section 1.10.120 and Article III of this chapter. 2. The purpose of the hearing is for the responsible party or property owner to state any reasons why a notice of pending administrative enforcement action should not be recorded. The administrative enforcement officer shall only consider evidence that is relevant to the following issues: a. Whether the conditions listed in the notice of pending administrative enforcement action violate the Carlsbad Municipal Code or applicable state codes, or whether the conditions constitute any other violation as described in Section 1.10.020(A) of this chapter; and b. Whether the enforcement officer afforded the responsible party and property owner with due process by adhering to the notification procedures specified in this Section 1.10.050 of this chapter. 3. If the administrative hearing officer affirms the enforcement officer’s decision to record the notice of pending administrative enforcement action, the enforcement officer may record the notice. 4. If the administrative hearing officer determines that recordation is improper, the administrative hearing officer shall invalidate the enforcement officer’s decision to record the notice of pending administrative enforcement action. E. A copy of the recorded notice of pending administrative enforcement action shall be served on the property owner and responsible party pursuant to any of the methods of service set forth in Section 1.10.040 of this chapter. F. Prohibition against issuance of multiple permits. The city may withhold permits for any alteration, repair, or construction pertaining to any existing or new structures or signs on the property, or any permits pertaining to the use and development of the real property or the structure: 1) if a request for hearing prior to recordation of notice of pending administrative enforcement action has not been timely filed and the notice is subsequently recorded; or 2) after an administrative hearing officer affirms the enforcement officer’s decision to record a notice of pending administrative enforcement action and the notice is subsequently recorded. The city may withhold permits until a certificate of compliance or notice of release has been issued by the enforcement officer. The city may not withhold permits which are necessary to obtain a certificate of compliance or notice of release, or which are necessary to correct serious health and safety violations. G. Upon final resolution of the pending administrative enforcement action, including the correction of all violations and payment of all outstanding penalties, costs, and fees, the enforcement officer shall have a certificate of compliance or notice of release filed with the county recorder’s office releasing the property from the notice of pending administrative enforcement action. The certificate of compliance or notice of release shall be on a form approved by the city attorney or designee. 1.10.055 Administrative costs. A. In addition to the assessment of any administrative penalties, the enforcement officer is authorized to assess administrative costs against a responsible party, as provided for in California Government Code Section 54988. B. The city shall provide a responsible party and the property owner with written notice of assessment of administrative costs on a form approved by the city attorney or designee, which shall include: 1. The basis for the administrative costs. Oct. 11, 2022 Item #6 Page 13 of 23 2. The code section(s) of the underlying administrative enforcement action. 3. A statement that the property owner has 45 calendar days after such notice is issued to pay the administrative costs, after which time the property may be subject to a proposed lien. 4. A statement that the property owner has an opportunity to appear before the planning commission and be heard regarding whether the proposed lien should become a lien and the lien amount. C. The notice of assessment of administrative costs shall be mailed using the service by mail procedures in Section 1.10.040 of this chapter. D. If the property owner elects to appear before the planning commission and be heard regarding whether the proposed lien should become a lien and the lien amount, the planning commission shall conduct a hearing. Written notice of the hearing shall be provided to the property owner by mail at least 10 calendar days in advance of the hearing. After the hearing, the planning commission shall make a written recommendation to the city council. The recommendation shall include factual findings based on the evidence introduced at the hearing. E. The city council may adopt the planning commission’s recommendation or direct the matter be set for a new hearing before the city council. Written notice of the new hearing shall be provided to the property owner by mail at least 10 calendar days in advance of the hearing. F. If the city council determines that the proposed lien shall become a lien, the city council may have a notice of lien recorded with the county recorder. The lien shall attach upon recordation and shall have the same force, priority, and effect as a judgment lien, not a tax lien. The notice of lien shall include the record owner or possessor of the property, the last known address of the record owner or possessor, the date upon which the lien was created against the property, and a description of the real property subject to the lien and the amount of the lien. G. The failure of any person with a financial interest in the property to actually receive the notice of the lien shall not affect the validity of the lien or any proceedings taken to collect the outstanding civil penalties. H. All administrative costs assessed are cumulative. If a responsible party fails to correct the violation(s), or has the same, similar, repeated, or continuing violation(s), subsequent administrative costs may be assessed. I. Payment of administrative costs does not excuse the failure of a responsible party to correct the violations(s) and does not bar further enforcement action by the city. J. The correction of a violation does not excuse the failure of a responsible party to pay any outstanding administrative costs. 1.10.060 Civil penalties. A. Declaration of purpose. The city council finds that there is a need for alternative methods of code enforcement. The administrative assessment of civil penalties along with an administrative hearing procedure is a necessary alternative method of code enforcement, in addition to any other administrative or judicial remedy established by law which may be pursued to address violations of this code and applicable state codes. B. Authority. 1. Any person violating any provision of this code or applicable state code, any permit or license approved pursuant to any provision of this code, any condition of approval of a permit or entitlement granted pursuant to any provision of this code, any required environmental mitigation measure, any term or condition of any city agreement pursuant to a police power, or any order issued by or on behalf of the city or by an administrative hearing officer contracted with the city may be subject to the assessment of civil penalties pursuant to the administrative procedures provided in Section 1.10.060 of this chapter. 2. Each day a violation as described in Section 1.10.060(B)(1) of this chapter exists constitutes a separate and distinct violation. 3. Civil penalties may be directly assessed by means of a notice and order issued by any director or imposed, affirmed, or modified by an administrative hearing officer. 4. Civil penalties shall be assessed at a daily rate determined by a director or administrative hearing officer pursuant to the criteria listed in Section 1.10.060(D)(3) of this chapter. The maximum rate shall Oct. 11, 2022 Item #6 Page 14 of 23 be $2,500 per violation. The maximum amount of civil penalties shall not exceed $400,000 per parcel or structure for any related series of violations, exclusive of administrative costs. C. Procedures—notice and order. 1. Whenever a director determines that a violation as described in Section 1.10.060(B)(1) of this chapter has occurred or continues to exist, a written civil penalties notice and order may be issued to the responsible party. 2. The notice and order shall list all applicable sections violated and describe how each section is or has been violated. 3. The notice and order shall refer to the dates and locations of the violations. 4. The notice and order shall describe the remedial action required to permanently correct outstanding violations and establish time frames for completion. 5. The notice and order shall establish a daily amount of civil penalties. A director shall determine the daily amount of civil penalties pursuant to the criteria in Section 1.10.060(D)(3) of this chapter. 6. The notice and order shall identify a date when the civil penalties began to accrue and a date when the assessment of civil penalties ended, unless the violation is continuous. In the case of a continuous violation, there shall be an ongoing assessment of penalties at the daily rate established in the notice and order until the violations are corrected. 7. If a director determines that the violations are continuing, the notice and order shall demand that the responsible party cease and desist from further action causing the violations and commence and complete all action to correct the outstanding violations under the guidance of the appropriate city department(s) or division(s). 8. The notice and order shall enumerate any other consequences should the responsible party fail to comply with the terms and deadlines as prescribed in the notice and order. 9. The notice and order shall explain the responsible party’s right to appeal in accordance with Section 1.10.020 of this chapter and shall follow the appeal procedures set forth in Section 1.10.120 and Article III of this chapter. Unless contested, the notice and order shall be final and be enforced pursuant to Section 1.10.060 of this chapter. 10. The notice and order shall be served upon the responsible party by any one of the methods of service provided in Section 1.10.040 of this chapter. 11. The notice and order shall identify the factors used by a director in determining the duration and the daily amount of civil penalties. 12. More than one notice and order may be issued against the same responsible party if it encompasses different dates or different violations. D. Determination of civil penalties 1. In determining the date when civil penalties start to accrue, a director or administrative hearing officer may consider the date when the department or division first discovered the violations as evidenced by the issuance of a notice of violation or any other written correspondence. 2. The assessment of civil penalties shall end when all action required by the notice and order has been completed. 3. In determining the amount of the civil penalty to be assessed at a daily rate, a director or administrative hearing officer may consider some or all of the following factors: a. The duration of the violation. b. The frequency or recurrence of the violation. c. The nature and seriousness of the violation. d. The history of the violation. e. Whether the offense impacted environmentally sensitive lands, a historical resource, or a designated historical resource as defined throughout this code. f. The willfulness of the responsible party’s misconduct. Oct. 11, 2022 Item #6 Page 15 of 23 g. The responsible party’s conduct after issuance of the notice and order. h. The good faith effort by the responsible party to comply. i. The economic impact of the penalty on the responsible party. j. The impact of the violation on the community. k. Any other factors that justice may require. 4. The city manager may establish a penalty schedule for a director and administrative hearing officer to use as a guideline in determining the amount of civil penalties in appropriate cases. The city manager may also establish procedures for the use of this penalty schedule. E. Failure to comply with director’s notice and order. When the responsible party fails to comply with the terms of the notice and order, a director shall schedule a civil penalties hearing in accordance with the administrative hearing procedures contained in Article III of Chapter 1.10 of this code, to the extent those procedures do not conflict with the requirements of this section. Failure to comply includes failure to pay the assessed civil penalties, failure to commence and complete corrections by the established deadlines, or failure to refrain from continuing violations as described in Section 1.10.060(B)(1) of this chapter. F. Civil penalties hearing 1. The procedures for a civil penalties hearing are the same as the hearing procedures set forth in Article III of Chapter 1.10 of this code. 2. The administrative hearing officer shall only consider evidence that is relevant to the following issues: a. Whether the responsible party has caused or maintained a violation as described in Section 1.10.060(B)(1) of this chapter which existed on the dates specified in the notice and order. b. If a notice and order was issued by a director, whether the amount of civil penalties assessed by the director pursuant to the procedures and criteria outlined in Section 1.10.060 of this chapter was reasonable. G. Administrative enforcement order 1. Once all evidence and testimony are completed, the administrative hearing officer shall issue an administrative enforcement order which affirms or rejects the director’s notice and order or which modifies the daily rate or duration of the civil penalties depending upon the review of the evidence. The administrative hearing officer may increase or decrease the total amount of civil penalties and costs that are assessed by the director’s notice and order. 2. The administrative hearing officer may issue an administrative enforcement order that requires the responsible party to cease and desist from committing the specified violations and to make specified corrections. 3. As part of the administrative enforcement order, the administrative hearing officer may establish specific deadlines for the payment of penalties and costs and condition the total or partial assessment of civil penalties on the responsible party’s ability to complete compliance by specified deadlines. 4. The administrative hearing officer may issue an administrative enforcement order that imposes additional civil penalties that will continue to be assessed until the responsible party complies with the administrative enforcement order and corrects the violation. 5. The administrative hearing officer may schedule subsequent review hearings as necessary or as requested by a party to the hearing to ensure compliance with the administrative enforcement order. H. Failure to comply with the administrative enforcement order. The failure of a responsible party to comply with the terms and deadlines set forth in the administrative enforcement order will trigger the enforcement provisions set forth in Section 1.10.130(C) of this chapter. If the civil penalties were initially imposed pursuant to a notice and order, the director shall monitor the violations and determine compliance. Article II. Administrative Citations and Appeals Oct. 11, 2022 Item #6 Page 16 of 23 1.10.070 Administrative citations. A. An enforcement officer may issue an administrative citation to any responsible party in response to any violation of any provision of this code, any permit or license approved pursuant to any provision of this code; any condition of approval of a permit or entitlement granted pursuant to any provision of this code, any required environmental mitigation measure, any term or condition of any city agreement pursuant to a police power, or any order issued by or on behalf of the city or by an administrative hearing officer contracted with the city. B. A continuing violation of the violations specified in Section 1.10.070(A) of this chapter constitutes a separate and distinct violation each day the violation exists. C. Administrative penalties shall be assessed by means of an administrative citation issued by an enforcement officer and shall be payable directly to the city. D. Administrative penalties shall be collected in accordance with the procedures specified in this chapter. 1.10.080 Administrative citation procedures. A. Upon discovering a violation of this code, an enforcement officer may issue and serve an administrative citation to a responsible party in the manner prescribed in this chapter. The administrative citation shall be issued on a form approved by the city attorney or designee. B. A responsible party shall be provided a notice of violation prior to the issuance of an administrative citation, except in the event of certain violations related to the illegal cultivation of cannabis, as governed by California Government Code Section 53069.4(a)(2)(B). C. A second or subsequent notice of violation does not need to be issued to the same responsible party prior to the issuance of an administrative citation if a notice of violation for the same, similar, repeated, or continuing violation was previously issued. D. Failure to comply with any portion of a notice of violation may result in the issuance of an administrative citation. E. If an administrative citation is served by personal service, the enforcement officer shall attempt to obtain the signature of the responsible party to whom the administrative citation is being issued. 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 any subsequent proceedings. 1.10.090 Contents of administrative citation. An administrative citation shall: A. Document the date and location of the violation(s) and, if applicable, the approximate time the violation(s) were observed. B. Document the code section(s), provision(s), condition(s), or term(s) violated and describe what action or absence of action resulted in the violation. C. Describe the action required to correct the violation(s). D. Require the responsible party to correct the violation(s) by a reasonable compliance date to be provided by the enforcement officer and explain the consequences of failure to correct the violation(s). E. If a violation is continuing in nature, demand the responsible party cease and desist from further action causing the violation(s) and commence and complete all action to correct the outstanding violation(s). F. State the amount of the administrative penalty imposed for the violation(s). G. Explain how the administrative penalty shall be paid, the time period by which it shall be paid and the consequences of the failure to timely pay it. H. Indicate the responsible party has 30 calendar days from the date of issuance of the administrative citation to appeal the citation, including any administrative penalty imposed. I. Contain the signature of the issuing enforcement officer and the signature of the responsible party, if the responsible party was personally served and signed the administrative citation, as provided in this chapter. Oct. 11, 2022 Item #6 Page 17 of 23 J. Contain a reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline, including criminal prosecution; civil injunction; administrative abatement; additional administrative citations; an administrative hearing requested by the city to resolve the violations; suspension, revocation, or stay of issuance of municipal permits, or other city authorizations; recordation of notices of violation, certificates of noncompliance, or other notices of ineligibility for land development; bonding requirements; and referral to other enforcement authorities. 1.10.100 Administrative penalties assessed. A. The amount of administrative penalty assessed shall be as authorized in California Government Code Sections 36900, subdivisions (b)-(d), 36901, and 53069.4, subdivision (a)(1). B. All administrative penalties assessed are cumulative. If a responsible party fails to correct the violation(s), or has the same, similar, repeated, or continuing violation(s), subsequent administrative penalties may be issued. C. All administrative penalties assessed shall be payable to the city within 30 calendar days from the date of the administrative citation. D. All administrative penalties paid under this section shall be refunded if it is determined, after a hearing, the person charged in the administrative citation was not responsible for the violation(s) or there were no violation(s) as charged in the administrative citation. E. Payment of administrative penalties shall not excuse the failure of any responsible party to correct the violation(s) nor shall it bar further enforcement action by the city. F. The correction of a violation does not excuse the failure of a responsible party to pay any outstanding administrative penalties. 1.10.110 Failure to pay administrative penalties; late fees. A. The failure of any person to pay an administrative penalty or late fee within the time specified on the administrative citation or other notice without the filing of an appeal as provided in this chapter will result in the assessment of an additional late fee. The amount of the late fee is 25% of the total amount of the administrative penalty and will be assessed independent of whether the violation has been corrected. B. The failure of any person to pay an administrative penalty or late fee assessed within the time specified on the administrative citation or other notice constitutes a debt to the city. The city may file a civil action and/or pursue any other legal remedy to collect the debt. 1.10.115 Transfer of ownership. A. It is unlawful for the owner of any real property or structure who has an outstanding notice of violation, order, or administrative citation related to the real property or structure to sell, transfer, mortgage, lease, or otherwise dispose of the real property or structure to another until: (1) the corrective action has been completed and all penalties, costs, and late fees have been paid; or (2) until the owner furnishes the grantee, transferee, mortgagee, or lessee a true copy of any notice, order, or administrative citation and furnishes an enforcement officer a signed and notarized statement from the grantee, transferee, mortgagee, or lessee acknowledging the receipt of the notice, order, or administrative citation and either: (a) fully accepting the responsibility without condition for making the corrections or repairs required by the notice, order, or administrative citation; or (b) stating the grantee, transferee, mortgagee, or lessee intends to timely challenge the notice, order, or administrative citation. The transfer of ownership in violation of this section shall not abrogate the transfer. B. Any property owner and any responsible party shall be jointly and severally liable for any financial obligations as a result of any city actions and proceedings involving the property, even if the property is subsequently transferred, exchanged, sold, inherited, or gifted, to ensure the continuity of the city’s business and administration of its laws. These financial obligations may include administrative penalties, late fees, and administrative costs as defined in this chapter; civil fines and penalties; and criminal fines and penalties. The city may use any legal means to enforce the collection of these financial obligations, including referral to collections agencies and the Franchise Tax Board. Oct. 11, 2022 Item #6 Page 18 of 23 C. If the property is exchanged, sold, inherited, or gifted, the obligation to correct any such violations against the property shall then be the responsibility of the purchaser, transferee, or lessee of interest, who shall be bound by the obligation to correct without further notice. 1.10.120 Appeal of notice, order, or administrative citation. A. A recipient of an administrative citation or an unfavorable decision of the city manager or designee related to a stop work order or stop use order may contest the citation or decision on a stop work order or a stop use order by completing all required request for hearing forms and returning them to the code enforcement division or other department or division specified on the administrative citation or decision on a stop work order or a stop use order within 30 calendar days from the date the administrative citation or decision was issued, together with an advance deposit of the full amount of administrative penalties or notice that a request for an advance deposit hardship waiver has been filed pursuant to subsection F of this section. If the deadline to appeal falls on a weekend or city holiday, then the deadline is extended to the next regular business day. B. A recipient of a notice of violation for a public nuisance under Chapter 6.16 of this code or a notice and order for civil penalties has 10 calendar days from the date of mailing of the notice, or 10 calendar days from the date of personal service of the notice if served using this method, to submit a request for hearing form to the code enforcement division or other department or division specified on the notice. If the deadline to appeal falls on a weekend or city holiday, then the deadline is extended to the next regular business day. A notice of violation for any other offense besides a public nuisance under Chapter 6.16 of this code is not appealable until an administrative citation has been issued for that offense. C. Request for hearing forms may be obtained from the city’s website, the code enforcement division, or the department or division specified on the notice, administrative citation, or decision on a stop work order or a stop use order. D. The person requesting the hearing shall be notified of the time and place set for the hearing at least 10 calendar days prior to the date of the hearing. E. If the enforcement officer submits an additional written report concerning the notice, administrative citation, or decision on a stop work order or a stop use order 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 calendar days prior to the date of the hearing. F. Advance deposit hardship waiver for appeal of administrative citations. 1. A responsible party who intends to request a hearing to contest an administrative citation, and who is financially unable to make the advance deposit of the full amount of any administrative penalty, may file a request for an advance deposit hardship waiver, to be considered by the finance department designee. 2. The advance deposit hardship waiver request shall be filed with the code enforcement division or other department or division specified on the administrative citation within 10 calendar days of the date the administrative citation was served. The waiver request shall be filed using the advance deposit hardship waiver application form, which shall be available on the city’s website or from the code enforcement division. 3. The requirement of depositing the full amount of the administrative penalties shall be stayed unless or until the finance department designee makes a determination not to issue the advance deposit hardship waiver. 4. The finance department designee may issue an advance deposit hardship waiver up to the full amount of any administrative penalty only if the responsible party submits to the finance department designee a sworn declaration, together with relevant supporting documents or materials, demonstrating to the satisfaction of the finance department designee: a. The responsible party has made a bona fide effort to comply with the code violated, and b. Depositing the full amount of the required payment in advance of the hearing would result in an undue financial burden. 5. If the finance department designee determines not to issue an advance deposit hardship waiver, the responsible party shall remit the full amount of the administrative penalty to the code enforcement Oct. 11, 2022 Item #6 Page 19 of 23 division or other department or division specified on the administrative citation within 10 calendar days of the date of the finance department designee’s determination. 6. The finance department designee shall issue a written determination listing the reasons for the determination to issue or not to issue the advance deposit hardship waiver. The written determination of the finance department shall be final and non-appealable. 7. The written determination of the finance department designee shall be served upon the person who applied for the advance deposit hardship waiver by regular U.S. mail or any other method reasonably likely to reach the applicant, including electronic mail and facsimile. Article III. Administrative Hearings 1.10.130 Administrative hearing procedures. Administrative hearings shall be conducted in accordance with this chapter and any administrative orders promulgated by the city manager. A. Administrative hearing procedures. 1. No hearing to contest an administrative citation before an administrative hearing officer shall be scheduled unless the full amount of administrative penalties 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 not less than 15 calendar days and not more than 60 calendar days from the date the request for hearing is filed and the city receives a deposit of the full amount of administrative penalties or an advanced deposit hardship waiver is issued. 3. An appeal or request for an administrative hearing upon receipt of a notice of violation for a public nuisance, a notice and order for civil penalties, a decision of the city manager or designee on a stop work order or stop use order appeal, or a notice of hearing, and any accompanying administrative citation(s) may be consolidated and heard on the same date. 4. Notice of the administrative hearing shall be served on the responsible party(ies) by the city in the manner prescribed by Section 1.10.040 of this chapter. 5. The failure of any person with an interest in the property, or other responsible party, to receive a properly addressed notice of hearing, served pursuant to Section 1.10.040 of this chapter, shall not affect the validity of any proceedings under this chapter. 6. The failure of any recipient of a notice of violation for public nuisance, notice and order for civil penalties, stop work order or stop use order, an administrative citation, or a notice of hearing to appear at any scheduled hearing shall result in an adjudication of the notice, order, or administrative citation, a forfeiture of any penalties, late fees, and other costs, and a failure by the recipient to exhaust administrative remedies. 7. At the hearing, the party contesting the notice, order, or administrative citation shall have an opportunity to testify and to present evidence concerning the notice, order, or administrative citation. Formal rules of evidence shall not apply during an administrative hearing. 8. Any city-issued notices, administrative citations, and additional report(s) submitted by an enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. 9. The administrative hearing officer may continue the hearing and request additional information from the enforcement officer, the recipient of the notice, order, or administrative citation, or the property owner prior to issuing an administrative enforcement order. 10. Failure of a person to file an appeal in accordance with the provisions of this section shall constitute a waiver of the person’s rights to an administrative determination of the merits of the notice, order, or administrative citation and the amount of the any administrative penalties or late fees. If no appeal is filed, the citation shall be deemed a final administrative order. B. Administrative hearing officer’s order. Oct. 11, 2022 Item #6 Page 20 of 23 1. After considering all relevant testimony and evidence submitted at the hearing, the administrative hearing officer shall issue a written administrative enforcement order that upholds, modifies, or dismisses the notice, stop work order or stop use order, or administrative citation. The administrative enforcement order shall list the reasons for the decision and shall be supported by substantial evidence in the record. The administrative enforcement order shall provide the timeframe for any future compliance dates or payment due dates and otherwise comply with the requirements of any administrative orders promulgated by the city manager. 2. As part of the administrative enforcement order, the administrative hearing officer may: a. Reduce, waive, or modify the administrative penalties or late fees assessed by the citation, in an amount consistent with the provisions of this chapter and Chapter 1.08. The total administrative penalty shall not exceed $100,000 exclusive of administrative costs. b. Impose, sustain, or modify civil penalties, consistent with the procedures in Section 1.10.060 of this chapter. The total civil penalty shall not exceed $400,000 exclusive of administrative costs. c. Impose conditions and deadlines to correct the violations or require payment of any outstanding penalties or late fees. d. Assess reasonable administrative costs incurred by the city as defined in Section 1.10.010 of this chapter. 3. In determining the amount of an administrative penalty, civil penalty, late fee, or administrative costs, or in determining conditions and deadlines to correct violations or make payments, the administrative hearing officer shall consider all relevant evidence and the following factors: a. The duration of the violation. b. The frequency or recurrence of the violation. c. The nature and seriousness of the violation. d. The history of the violation. e. Whether the offense impacted environmentally sensitive lands, a historical resource, or a designated historical resource as defined throughout this code. f. The willfulness of the responsible party’s misconduct. g. The responsible party’s conduct after issuance of the notice, citation, or stop work order or stop use order. h. The good faith effort by the responsible party to comply. i. The economic impact of the penalty on the responsible party. j. The impact of the violation upon the community. k. Any other factors that justice may require. 4. The employment, performance evaluation, compensation, and benefits of the administrative hearing officer shall not be directly or indirectly conditioned upon the amount of the administrative citation penalties, civil penalties, late fees, or administrative costs upheld by the administrative hearing officer. 5. If the administrative hearing officer determines that the notice, stop work order or stop use order, and/or administrative citation should be upheld, then any administrative penalty amount(s) on deposit with the city shall be retained by the city. 6. If the administrative hearing officer determines the notice, stop work order or stop use order, and/or administrative citation should be upheld, and the civil penalties have not been paid and/or the administrative penalties have not been deposited pursuant to an advance deposit hardship waiver, the administrative hearing officer shall set forth in the administrative enforcement order a payment schedule for the administrative penalties, civil penalties, and any costs imposed. 7. If the administrative hearing officer determines the notice, stop work order or stop use order, and/or administrative citation should be dismissed and civil penalties were paid or administrative penalties were deposited with the city, then the city shall promptly refund the amount of the paid or deposited Oct. 11, 2022 Item #6 Page 21 of 23 penalties together with interest at the average rate earned on the city’s investment portfolio for the period of time the penalties were held by the city. 8. The administrative hearing officer shall serve their administrative enforcement order on all parties to the hearing within 14 calendar days of the last hearing date by regular U.S. mail or any other method reasonably likely to reach the recipient, including, but not limited to, electronic mail or facsimile. 9. The administrative enforcement order constitutes a final decision, effective on the date of mailing. The administrative enforcement order must contain the following statement: "The administrative enforcement order of the hearing officer is final and binding. Judicial review of this administrative enforcement order is subject to the provisions and time limits set forth in California Government Code Section 53069.4." 10. If the administrative enforcement order finds in favor of the city, the city clerk’s office shall cause a copy of the administrative enforcement order to be recorded against the affected property with the county recorder’s office. 11. If the code enforcement manager determines that compliance has been achieved after the recording of an administrative enforcement order, the code enforcement manager shall direct the assigned enforcement officer to issue and record a certificate of compliance against the affected property. C. Failure to comply with administrative enforcement order. 1. Upon issuance of an administrative enforcement order, the enforcement officer shall monitor the violations and determine compliance. 2. It is unlawful for a party to an administrative hearing, who has been served with a copy of the administrative enforcement order pursuant to this chapter, to fail to comply with the order. The city may treat such failure as a violation of this code and use all available legal or equitable remedies to recover any penalties, costs, fees, and obtain compliance with the administrative enforcement order. D. Right to judicial review. The recipient of the notice of violation or administrative citation may obtain judicial review of a final administrative decision by filing an appeal under California Government Code Section 53069.4, subdivision (b). If no appeal of the final administrative decision is filed within the time period set forth in California Government Code Section 53069.4, the final administrative decision shall be deemed confirmed. 1.10.140 Additional rules and procedures for administrative hearing officers and administrative hearings. A. The city manager shall establish rules and procedures pursuant to Section 1.10.020(D) of this chapter as are necessary to identify a pool of qualified persons capable of acting as administrative hearing officers. B. Administrative hearing officers presiding at administrative hearings shall be appointed and compensated by the city. The city manager shall develop policies and procedures relating to the employment and compensation of administrative hearing officers. 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 established by the city manager under Section 1.10.020(D) of this chapter. Oct. 11, 2022 Item #6 Page 22 of 23 EFFECTIVE DATE: This ordinance shall be effective thirty days after its adoption; and the City Clerk Services Manager shall certify the adoption of this ordinance and cause the full text of the ordinance or a summary of the ordinance prepared by the City Attorney 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 27th day of September, 2022, and thereafter PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of Carlsbad on the 11th day of October, 2022, by the following vote, to wit: AYES: NAYS: Blackburn, Bhat-Patel, Acosta, Norby. None. ABSENT: Hall. APPROVED AS TO FORM AND LEGALITY: �/:::./(� CINDIE K. McMAHON, City Attorney f" Mu HALL, Mayor r-FAVIOLA MEDINA, City Clerk Services Manager(SEAL) Oct. 11, 2022 Item #6 Page 23 of 23