Chapter 1.40
ADMINISTRATIVE PROCEDURE
AND PROCESS

Sections:

1.40.010    Purpose and intent.

1.40.020    Administrative process.

1.40.030    Service of notices.

1.40.035    Proof of service of notices.

1.40.040    Reserved.

1.40.050    Administrative hearing procedure.

1.40.060    Immediate action excusing prior notice for purposes of abating dangerous conditions or imminent threat to life or safety.

1.40.070    Consolidation of proceedings.

1.40.010 Purpose and intent.

It is the purpose and intent of the city council to establish rules and procedures for the conduct of administrative hearings required by statute, this municipal code, or administrative regulation in order to insure administrative due process is accorded to affected parties. The requirements and procedures of this chapter shall be applicable to administrative procedures and hearings regarding the denial, suspension or revocation of a permit, license or entitlement, and may be used to supplement or substitute for any administrative hearing or administrative procedure prescribed elsewhere in this municipal code. The procedures under this chapter may also be used in those situations where the municipal code authorizes a hearing as a precondition to the abatement of a nuisance, the imposition of an administrative fine or penalty, or as an administrative appeals procedure. (Ord. 2718 § 3, 1998).

1.40.020 Administrative process.

A. Subject to the provisions of CVMC 1.40.060, the city manager or designee shall serve notice pursuant to CVMC 1.40.030 upon a party whose permit, license or entitlement has been denied, or is to be suspended or revoked, or against whom administrative enforcement action is proposed, that they shall be allowed 10 calendar days (30 days for out-of-state residents per Code of Civil Procedures Section 415.40) to request an administrative hearing to appeal or contest that proposed action before it will become final. The request for hearing must be made no later than 10 calendar days from the date of notification of the proposed action. The proposed action by the city manager shall become final and conclusive if not appealed or contested. Except as provided in CVMC 1.40.060, the proposed action shall be stayed if properly appealed, and be made final following the issuance of a decision by a hearing officer pursuant to subsection (H) of this section.

B. Upon the filing of a request for a hearing or an appeal and payment of the required fee, the city manager shall appoint a hearing examiner who shall be neutral and unbiased as to the specific factual matter in contention and experienced in the general subject matter. The hearing examiner may be appointed either from within the city staff or outside sources. The city manager may provide compensation to outside sourced hearing examiners.

C. The fee to request a hearing or an appeal of an administrative citation or civil penalty shall be equal to the amount of the fine identified on the administrative citation or the amount of the civil penalty, but not more than $1,000. If the hearing officer determines that the issuance of the administrative citation or assessment of the civil penalty was not appropriate based on the evidence provided, then the appeal fee will be refunded to the party that requested the appeal. If the appeal is denied, the fee shall be applied as payment of, or toward, the administrative citation or civil penalty. The fee to request a hearing or an appeal of all other types of administrative orders, unless specified otherwise in the municipal code, shall be in the form of a deposit, the amount to be determined by the city manager based on the anticipated staff cost to conduct the hearing. If the cost of the hearing or appeal exceeds the deposited amount, the requesting party shall be responsible for payment of the additional costs incurred. If the hearing officer determines that the administrative order is not supported by the evidence, the entire deposited amount will be returned to the party that requested the appeal.

D. The hearing examiner shall notify the appellant of the time and place for the hearing in accordance with CVMC 1.40.030, allowing a minimum of 10 calendar days from the date the notice is mailed before the hearing is to be held.

E. The hearing examiner shall conduct the administrative hearing in accordance with CVMC 1.40.050 and issue a written decision promptly to all parties upon the conclusion of the hearing, unless the appeal or request for hearing is withdrawn by the requesting party. The hearing examiner may impose conditions and deadlines for corrective action and reduce, waive or conditionally suspend any fines or penalties proposed when the hearing examiner concludes, based upon the evidence, that such action is equitable and more likely to bring about compliance with the proposed order.

F. The hearing examiner’s decision shall be based upon findings supported by evidence. The standard of proof required to render the decision shall be that of a preponderance of the evidence. A preponderance of the evidence is established when the weight of the evidence supporting the existence of a fact in contention has the more convincing force, when balanced against that evidence refuting the existence or applicability of the same fact in contention.

G. The hearing may not be used as a substitute for discovery pursuant to the Code of Civil Procedure, and any inquiry or discovery in violation of this subsection is not competent or admissible against the party against whom it is to be used upon appropriate motion or objection of that party.

H. A final decision shall be issued by the hearing examiner. The date of mailing of the final decision by the hearing examiner to the party by first class mail, with certificate of service attached, shall constitute the date of the exhaustion of administrative remedy. A party shall be advised by the hearing examiner that it has 90 days, pursuant to the California Code of Civil Procedure Section 1094.6, from that date in which to file for a writ of mandamus or other applicable judicial review, except that if the determination is made as to a decision imposing an administrative penalty, fine or charge under CVMC 1.41.100, the time to appeal to the municipal court is limited to 20 days pursuant to California Government Code Section 53069.4. Failure to file for judicial review within the applicable time limit makes the final decision nonappealable and confirmed. Until a timely request for judicial review is filed, enforcement of the final decision may proceed in due course.

I. The city will use its best effort to tape record the hearing, but is not legally obligated to do so. Any recording will be retained for not to exceed two years. The private party may also record the proceedings. A party may request a transcript of the proceedings, if prepared, or be provided a copy of any recording, if made, upon payment of the costs of preparation or duplication. (Ord. 2718 § 3, 1998).

1.40.030 Service of notices.

A. Except as provided in subsection (D) of this section, whenever a notice is required to be given under the municipal code for the enforcement of a proposed order or for hearing or appeals purposes, the notice shall be served by any of the following methods, unless different provisions are otherwise specifically stated to apply:

1. Personal service upon the responsible party; or

2. Certified mail, postage prepaid, return receipt requested. Simultaneously, a duplicate notice may be sent by regular mail, postage prepaid. If a notice that is sent by certified mail is returned unsigned, service shall be deemed effective pursuant to service of the duplicate notice by regular mail; provided, that the duplicate notice sent by regular mail is not returned as undeliverable. Notice shall be mailed to the last address shown on the county tax assessor’s records if the notice concerns real property, and to the last known address of any other party to the proceeding shown in official records of the city of Chula Vista;

3. Posting the notice conspicuously on or in front of the property.

B. Posting a notice or duplicate service by regular mail in the manner described above shall be deemed effective on the third day after mailing or posting; service by certified mail shall be effective as of the date of signed receipt.

C. The service of an initial notice of violation may also be sent by regular mail. Service of a notice of violation by regular mail is effective on the third day after mailing.

D. Service of notice through which a lien will be placed upon real property will be in accordance with Code of Civil Procedure Sections 415.10, 415.20, 415.30, or Section 415.40 if the responsible party resides out of state.

E. The failure of any party or person with an interest in the property or the proceeding to receive any notice which has been duly sent or posted in accordance with this section shall not affect the validity of any proceedings taken under this code. (Ord. 2718 § 3, 1998).

1.40.035 Proof of service of notices.

Proof of service of any notice required by this code may be made by certificate or affidavit of an officer or employee of this city or by affidavit of any person over the age of 18 years. The proof of service shall show that service was done in conformity with this code and any other provisions of law applicable to the subject matter concerned. (Ord. 2718 § 3, 1998).

1.40.040 Reserved.

1.40.050 Administrative hearing procedure.

The hearing before a hearing examiner shall be conducted in accordance with the following procedures:

A. A hearing examiner is authorized to issue subpoenas, administer oaths or affirmations, and conduct the hearing. Subpoenas shall be signed by the city clerk. Oral evidence shall be taken only on oath or affirmation.

B. Each party shall have the following rights: to be represented by legal counsel; to call and examine witnesses; to introduce evidence; to cross-examine opposing witnesses on any matter relevant to the issues, even though the matter was not covered in the direct examination; to impeach any witness regardless of which party first called the witness; to testify in his or her own behalf. A party may be called as a witness by the other party and be examined as if under cross-examination.

C. Appeals of quantities of work performed in connection with a violation of land grading permits as estimated by the director shall include a report by a licensed civil engineer qualified to perform land surveys or a licensed land surveyor. The report shall be prepared at the sole cost of the appellant. Such reports shall include sufficient survey work to determine the actual amount of land grading work done without a permit.

D. The hearing need not and should not be conducted according to the technical rules of procedure and the California Evidence Code relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient by itself to support a finding unless it would also be admissible over objection in civil actions. Irrelevant and unduly repetitious evidence shall be excluded.

E. The proponent of any testimony to be offered by a witness who does not proficiently speak the English language shall provide an interpreter. The interpreter shall be approved by the hearing examiner conducting the proceeding as proficient in the English language and the language in which the witness will testify. The cost of the interpreter is to be paid by the party providing the interpreter.

F. The proponent for the director may introduce into evidence and rely upon an administrative record which clearly demonstrates: (1) the condition(s), act(s) or omission(s) upon which the proposed action is based; (2) the regulatory authority for the proposed action; (3) technical or factual data supporting the proposed action; and (4) any other information or data relevant to the proposed action. An administrative record certified by the director which meets the above criteria shall constitute prima facie evidence in support of the proposed action. The burden of going forward may then shift to the opposing party, who may then cross-examine on the basis of the administrative record and call witnesses appropriate to aid in its examination of the administrative record. The opposing party may call additional witnesses and introduce additional evidence appropriate for opposition, defense, excusal or mitigation of the proposed action.

G. The hearing may, at the discretion of the hearing examiner, be continued from time to time upon request of a party to the hearing and upon a showing of good cause therefor. (Ord. 2718 § 3, 1998).

1.40.060 Immediate action excusing prior notice for purposes of abating dangerous conditions or imminent threat to life or safety.

The provisions for prior notice and hearing may be dispensed with when, in the opinion of the director with the concurrence of the city manager, immediate action is necessary to summarily abate a dangerous condition on public or private property or an imminent threat to life or safety on public or private property. The director shall take only such action as is reasonably necessary to summarily abate the danger, and shall thereafter expeditiously comply with CVMC 1.40.020 through 1.40.050 regarding notice and hearing, if requested, to the responsible party(ies) regarding the action taken by the director to summarily abate the condition. The purpose of the hearing will be to afford the responsible party(ies) the opportunity to contest their responsibility for the costs or scope of abatement. If further corrective action is necessary, the director will comply with this chapter and such other sections of the code as may be applicable regarding further corrective action. (Ord. 2718 § 3, 1998).

1.40.070 Consolidation of proceedings.

A director or the hearing examiner may consolidate one or more administrative processes and orders proposed under this chapter and Chapters 1.30 or 1.41 CVMC, or both, into a single hearing, if consolidation would be more efficient and cost-effective. (Ord. 2718 § 3, 1998).