Chapter 1.21
ADMINISTRATIVE CITATIONS
Sections:
1.21.010 Purpose and intent.
1.21.020 Authority to issue administrative citations.
1.21.030 Definitions.
1.21.040 Issuance.
1.21.050 Service.
1.21.060 Amount of fines.
1.21.070 Payment of fines.
1.21.080 Request for administrative hearing.
1.21.090 Administrative hearing procedures.
1.21.100 Hearing officer decision.
1.21.110 Collection of unpaid fines and costs.
1.21.120 Right to judicial review.
1.21.130 Notices.
1.21.010 Purpose and intent.
The city council finds and declares that:
A. There is a need for an alternative method of enforcement for violations of the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and land use approvals. An appropriate method of enforcement is the imposition of an administrative citation program and related fines as authorized by Government Code Section 53069.4.
B. The issuance of an administrative citation under this chapter is solely at the town’s discretion and is one of various options that the town has to address violations of the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and land use approvals. By adopting this chapter, the town does not intend to limit its discretion to use any other remedy, civil or criminal, to address such violations.
C. Enforcement of the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and land use approvals are matters of local concern and serve to protect the public health, safety and welfare of the citizens of the town, and such enforcement is a valid exercise of the town’s police power.
D. Issuing administrative citations encourages voluntary and complete compliance with the provisions of this code, other town ordinances, applicable state codes, conditions on entitlements, and land use approvals in a timely and cost efficient manner that protects and benefits all town residents. (Ord. 585 § 1 (part), 2010)
1.21.020 Authority to issue administrative citations.
The following town officers and employees are designated and authorized to issue administrative citations as the town’s enforcement officer:
A. The city manager or his or her designee;
B. The code enforcement officer or his or her designee;
C. The building official or his or her designee; and
D. All sworn police officers. (Ord. 585 § 1 (part), 2010)
1.21.030 Definitions.
A. “Enforcement officer” means any officer or employee acting on behalf of the town with the authority to enforce the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and land use approvals in accordance with the provisions of this code.
B. “Hearing officer” means the person appointed by the city manager, in compliance with any and all applicable legal requirements, to serve as the hearing officer for administrative citation hearings.
C. “Land use approval” means any approval required for a particular use of land, including without limitation, licenses, conditional use permits, variances, or subdivision maps.
D. “Owner” means the record owner of any parcel of real property according to San Mateo County’s last equalized property tax assessment roll, or the supplemental roll, whichever is more current.
E. “Person” means and includes a natural person or legal entity, and the owners, majority stockholders, corporate officers, trustees and general partners of a legal entity.
F. “Responsible person” means any individual who is the owner or occupant of real property, owner or authorized agent of any business, company, or entity, or the parent or the legal guardian of any person under the age of eighteen years, who causes, maintains, or permits a violation of the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and/or land use approvals. For the purposes of this chapter, there may be more than one responsible person for any violation and each responsible person shall be jointly and severally liable for any such violation. (Ord. 585 § 1 (part), 2010)
1.21.040 Issuance.
A. Notwithstanding the provisions set forth in Chapter 1.20, any person violating any provision of the Atherton Municipal Code, other town ordinances, applicable state codes, conditions on entitlements, and/or land use approvals, including any provision that pertains to building, plumbing, electrical, or other similar structural or zoning issues, may, in the town’s discretion, be issued an administrative citation by an enforcement officer. Before the imposition of any administrative fines, the enforcement officer shall allow a reasonable time period not to exceed fourteen calendar days, unless the enforcement officer determines that a longer time period is reasonably warranted and/or necessary under the circumstances, for the person to correct or otherwise remedy the violation.
B. Every person who applies for and receives any type of land use approval or entitlement shall comply with all conditions imposed upon the issuance of such approval or entitlement. Violation of any condition may be subject to an administrative fine in accordance with this chapter.
C. Each and every day a violation exists shall be a separate and distinct violation and may be subject to a separate fine.
D. An administrative citation shall be on a form approved by the city manager and shall contain the following information:
1. Name and address of the responsible person;
2. Date, time, and address or definite description of the location where the violation was observed;
3. The relevant provision violated and a description of the violation;
4. A description of the action required to correct the violation and an explanation of the consequences for failure to correct the violation;
5. An order prohibiting the continuation or repeated occurrence of the violation;
6. The amount of the fine for the violation;
7. An explanation of how and when to pay the fine;
8. A reasonable time period not to exceed fourteen calendar days, unless the enforcement officer determines that a longer period of time is reasonably warranted and/or necessary under the circumstances, within which the responsible person may correct the violation without being subject to a fine;
9. Notification of the right to appeal, including the time within which the administrative citation may be contested and the place to obtain a request for hearing form to appeal the administrative citation;
10. Notification of the right to request a hardship fee waiver;
11. The name and signature of the enforcement officer; and
12. The date the citation was issued. (Ord. 585 § 1 (part), 2010)
1.21.050 Service.
An administrative citation issued in accordance with Section 1.21.040 may be served in any of the following manners:
A. Personal Service. The enforcement officer shall make a reasonable attempt to locate and personally serve the responsible person with the administrative citation and shall also make a reasonable attempt to obtain the signature of the responsible person on the administrative citation. Service by personal service shall be deemed completed at the time of such personal service. If the responsible person accepts service but refuses to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or any subsequent proceedings.
B. Service by Mail. If the enforcement officer is unable to serve the responsible person by personal service, the enforcement officer shall mail the administrative citation to the responsible person by U.S. certified mail, return receipt requested, and by regular, first class mail. Service by mail shall be deemed effective as of the date of deposit. A copy of the mailing receipt used with certified mail shall be affixed to a copy of the administrative citation that is maintained by the enforcement officer.
C. Service by Posting Notice. If the enforcement officer does not succeed in personally serving the responsible person or in serving the responsible person by certified or regular mail, the enforcement officer shall post the administrative citation on the responsible person’s real property on which the violation is occurring. Service by posting shall be deemed effective as of the date of posting. (Ord. 585 § 1 (part), 2010)
1.21.060 Amount of fines.
The city council shall establish by resolution the amount of fines, including any late payment penalties, for an administrative citation imposed pursuant to this chapter. The resolution may include escalating fine amounts for repeat violations of the same provision by the same person within twelve months from the date of the initial administrative citation. (Ord. 585 § 1 (part), 2010)
1.21.070 Payment of fines.
A. Within thirty days from the date of service of the administrative citation, the responsible person shall pay the fine to the city clerk.
B. If the fine is not paid within the time frame prescribed herein, a late payment penalty may be charged in an amount to be established by resolution of the city council.
C. Any fine paid pursuant to this section shall be refunded in accordance with Section 1.21.100 if it is determined, after a hearing, that the person charged with the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation.
D. Payment of a fine shall not excuse or discharge any continuation or repeated occurrence of any violation that is the subject of the administrative citation, nor shall it bar further enforcement action by the town.
E. Any responsible person who is unable to pay the fine may file a request for fee waiver with the city manager ten calendar days from the date of service of the administrative citation.
1. The request for fee waiver shall be in writing, describe why the fine cannot be paid, and include any relevant documentation supporting the request. The request must be accompanied by a sworn affidavit and must demonstrate to the satisfaction of the city manager the responsible person’s actual financial inability to deposit with the town the full amount of the fine in advance of the hearing.
2. Once the request for fee waiver is filed, the requirement to pay the administrative fine shall be stayed until the city manager determines whether to grant or deny the request.
3. If the city manager grants the request for fee waiver, the responsible person shall not be required to pay the fine. Granting a request for fee waiver shall not excuse or discharge any continuation or repeated occurrence of any violation that is the subject of the administrative citation, nor shall it bar further enforcement action by the town.
4. If the city manager denies the request for fee waiver, the fine must be paid within fifteen calendar days from the date of service of the city’s manager determination. The city manager may also impose a schedule for payment of the fine that shall not exceed one hundred eighty days from the date of his or her determination.
5. The city manager’s determination shall be (a) made within ten calendar days of the request, (b) in writing, and (c) served via U.S. certified mail, return receipt requested. The city manager’s determination shall be final. (Ord. 585 § 1 (part), 2010)
1.21.080 Request for administrative hearing.
A. A responsible person may appeal the imposition of an administrative citation by completing a request for hearing form obtained from the city clerk. The responsible person must return the form to the city clerk within fifteen calendar days from the date of service of the administrative citation. Unless the responsible person was granted a fee waiver pursuant to Section 1.21.070(E), the request for hearing form must be accompanied by an advanced deposit of the fine.
B. The request for hearing form must contain the following information:
1. The name, address, and signature of the responsible person appealing the administrative citation;
2. A brief statement in ordinary and concise language of the specific item that is contested, together with any supportive facts; and
3. A brief statement in ordinary and concise language of the relief sought and the reason why the administrative citation should be rescinded, modified, or otherwise set aside.
C. A hearing before the hearing officer shall be set for a date that is not less than fifteen nor more than sixty calendar days from the date the request for hearing is filed. The responsible person requesting the hearing shall be notified of the time and place set for the hearing at least ten calendar days before the date of the hearing.
D. A request for hearing form that fails to provide all of the information required by this section shall be deemed a failure to appeal the administrative citation. The failure of a responsible person to appeal the administrative citation within the time frame provided by this section shall constitute (1) a waiver of any right to an administrative hearing for a determination of the matter contested; and (2) a failure to exhaust his or her administrative remedies. (Ord. 585 § 1 (part), 2010)
1.21.090 Administrative hearing procedures.
A. A hearing to appeal an administrative citation before a hearing officer shall not be held unless the appellant has (1) completed and returned the request for hearing form to the city clerk, and (2) paid the administrative fine to the town.
B. The hearing officer shall only consider evidence that is relevant to whether the violation occurred and whether the responsible person caused, maintained, and/or permitted the violation.
C. At least ten calendar days before the hearing, the responsible person shall be provided with copies of any and all citations, reports, and other documents submitted or relied upon by the enforcement officer. No other discovery shall be permitted.
D. The formal rules of evidence shall not apply to the administrative hearing. All relevant evidence may be considered, and the hearing officer has the discretion to exclude evidence that he or she finds to be irrelevant or repetitive.
E. The administrative citation and any additional documents submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.
F. The responsible person contesting the administrative citation shall be given the opportunity to (1) testify and present witnesses; (2) introduce relevant evidence; (3) cross-examine and/or rebut any witness testifying in support of the administrative citation; and (4) be represented by anyone who is lawfully permitted to do so.
G. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust his or her administrative remedies.
H. The hearing officer may continue the hearing and request additional information from the enforcement officer or the responsible person contesting the administrative citation before issuing a written decision.
I. The city manager shall compile a list of qualified hearing officers and shall designate the hearing officer for the administrative hearing by random selection from the list, subject to availability of each particular hearing officer. The responsible person may request the city manager to recuse a hearing officer for reasons of actual bias or prejudice against the responsible person’s cause. The hearing officer shall not be an employee of the town nor have any employment relationship with the town, except for that of hearing officer. The hearing officer’s employment, evaluation, compensation, and/or benefits shall not be conditioned, either directly or indirectly, upon the amount of fine imposed on the responsible person or the number of administrative citations upheld by the hearing officer.
J. In administrative proceedings, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, but only if the town elects in writing, at the initiation of the administrative proceeding, to seek recovery of its own attorneys’ fees. In no event shall an award of attorneys’ fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the town in the administrative proceedings. The town may recover its attorneys’ fees in the same manner as other costs pursuant to this chapter. (Ord. 585 § 1 (part), 2010)
1.21.100 Hearing officer decision.
A. After considering all of the testimony and evidence submitted for the hearing, the hearing officer shall issue a written decision to uphold, modify or revoke the administrative citation that describes the reasons for the decision. The hearing officer’s decision shall be final.
1. If the hearing officer determines that the administrative citation should be upheld, the amount of the fine on deposit with the town shall be retained by the town.
2. If the hearing officer determines that the administrative citation should be modified, the town shall refund or collect, whichever is applicable, the difference between the amount of the original fine and the modified fine within fifteen calendar days from the date of issuance of the hearing officer’s decision.
3. If the hearing officer determines that the administrative citation should be revoked, the town shall refund the amount of the deposited fine within fifteen calendar days from the date of issuance of the hearing officer’s decision.
B. The hearing officer’s decision shall include a statement that the aggrieved party may seek judicial review in accordance with Section 1.21.120.
C. Within five calendar days of issuance of the hearing officer’s decision, the town shall serve a copy of the written decision on the recipient of the administrative citation by U.S. certified mail, return receipt requested. Service of the hearing officer’s decision shall be deemed completed on the date of mailing. (Ord. 585 § 1 (part), 2010)
1.21.110 Collection of unpaid fines and costs.
A. At its discretion, the town may pursue any and all legal and equitable remedies to collect unpaid fines imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit of any other remedy. It is intended that persons causing, maintaining, and/or permitting the violation, and not the taxpayers, bear the financial burden of the town’s code enforcement efforts. Remedies available to the town to collect unpaid fines and costs include the following without limitation:
1. Referring the delinquent account to a collection agency;
2. Authorizing a lien to be recorded on the property; and/or
3. Authorizing a special assessment upon the property.
B. The town shall be entitled to recover all costs related to enforcing any violations that are recoverable under Government Code Sections 38771 et seq. and 54988, or any other local, state or federal law. Before invoking any of the procedures described in this section, the town shall provide notice to the property owner (if different from the responsible person) based on San Mateo County’s last equalized property tax assessment roll, or the supplemental roll, whichever is more current.
C. Any person who fails to pay any fine or penalty shall be liable in any proceeding brought by the town for the costs incurred in securing payment of the unpaid amount, including without limitation, administrative costs and attorneys’ fees. Such collection costs shall be in addition to any penalties, interest, and/or late charges imposed upon the unpaid fine. (Ord. 585 § 1 (part), 2010)
1.21.120 Right to judicial review.
Any person aggrieved by a decision of the hearing officer may obtain review of the administrative decision by filing (A) an appeal with the San Mateo County superior court in accordance with Government Code Section 53069.4, or (B) a petition for writ of mandate in accordance with Code of Civil Procedure Sections 1094.5 and 1094.6. (Ord. 585 § 1 (part), 2010)
1.21.130 Notices.
Except as specifically provided in this chapter, all notices to be given herein shall be served on the responsible person in accordance with the provisions of Section 1.21.050. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted herein. (Ord. 585 § 1 (part), 2010)