Chapter 1.12
ADMINISTRATIVE FINES

Sections:

1.12.010    Purpose.

1.12.020    Definitions.

1.12.030    Enforcement authority.

1.12.040    Scope.

1.12.050    Administrative citation.

1.12.060    Correction notice.

1.12.070    Offender’s obligations.

1.12.080    Administrative fine.

1.12.090    Administrative hearing.

1.12.100    Judicial review.

1.12.110    Failure to comply.

1.12.010 Purpose.

It is the purpose and intent of this chapter to provide an alternative method of enforcement for violations of the Marina Municipal Code. Use of this chapter shall be at the sole discretion of the city. (Ord. 2006-09 § 1 (part), 2006)

1.12.020 Definitions.

For the purposes of this chapter:

“Enforcement official” means any officer or agent or employee with the authority to enforce the Marina Municipal Code.

“Offender” means any individual, any individual who is the owner or occupant of real property, or any individual who is the owner or authorized agent of any business, company, entity, who causes or maintains a violation of the Marina Municipal Code. (Ord. 2006-09 § 1 (part), 2006)

1.12.030 Enforcement authority.

Any person violating any provision of the Marina Municipal Code may be issued an administrative citation as provided in this chapter. A violation of this code includes, but is not limited to, all violations of the municipal code, the uniform codes adopted by the city council, and the failing to comply with any condition imposed by any entitlement, agreement, or environmental document issued or approved under the provisions of this code. (Ord. 2006-09 § 1 (part), 2006)

1.12.040 Scope.

The procedures established in this chapter shall supplement and be in addition to any criminal, civil or other remedy established by law or under the provisions of this code which may be pursued to address municipal code violations. (Ord. 2006-09 § 1 (part), 2006)

1.12.050 Administrative citation.

A.    Issuance of Administrative Citation. An enforcement official may, upon discovering that a person has committed a violation of the municipal code (“municipal code violation”), issue an administrative citation on a form approved by the city manager to the offender for violations of the municipal code in the following manner:

1.    Personal Service. In any case where an administrative citation is issued:

a.    The enforcement official shall attempt to locate and personally serve the offender and obtain the signature of the offender on the administrative citation.

b.    If the person served with the administrative citation refuses or fails to sign the administrative claim, the failure or refusal shall not affect the validity of the administrative citation or of subsequent proceedings.

2.    Service of Citation by Mail. If the enforcement official is unable to personally serve the offender, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the citation may be sent by first class mail. If the citation is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first class mail, provided the citation sent by first class mail is not returned.

3.    Service of Citation by Posting Notice. If the enforcement official does not succeed in personally serving the offender, or fails to send the administrative citation by certified or regular mail, the enforcement official shall post the administrative citation on any real property within the city in which the city has knowledge that the offender has a legal interest, and such posting shall be deemed effective service.

B.    Administrative Citation Contents. To the extent the following information is reasonably available to the enforcement official, the administrative citation shall:

1.    State the date the administrative citation is issued and the date of the violation or, if that date is unknown, the date the violation is identified;

2.    State the offender’s name, current residential address, and mailing address;

3.    Refer to code section(s) violated and describe how the offender violated the code section(s);

4.    State the date, approximate time, and address or definite description of the location where the violation(s) was discovered by the enforcement official;

5.    State the amount of fine imposed for the violation (“administrative fine”);

6.    Explain how the offender may pay the fine, including the location and manner, as well as the time period by which the fine must be paid and the consequences of failure to pay the fine;

7.    Explain the procedure for obtaining an administrative hearing, specifically, notice that the offender must make a written request within fifteen working days from the date the administrative citation is issued and that the offender will be notified by mail of the date of the hearing;

8.    Include a warning that a failure to pay the fine or a failure to request and appear at an administrative hearing may result in the penalties described in Section 1.12.110(B);

9.    Include the name and signature of the enforcement official. (Ord. 2006-09 § 1 (part), 2006)

1.12.060 Correction notice.

A.    Applicability of this Section. This Section 1.12.060 shall only apply when the municipal code violation pertains to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety (hereinafter “correction condition”).

B.    Correction Period. An offender shall have at least ten calendar days to correct or otherwise remedy a correction condition prior to the issuance of an administrative citation and the imposition of a fine. A correction period longer than ten calendar days may be granted if deemed necessary by the enforcement official.

C.    Correction Notice. Upon discovery of a correction condition, the enforcement official shall issue a written correction notice to the offender by personal service or by registered or certified mail to the offender’s last known address. Such notice shall refer to the code section(s) violated and describe how the offender violated the code section(s). The correction notice shall also describe the action necessary to correct the violation and state the final date by which the correction must be completed, which shall not be less than ten calendar days from the date the correction notice is issued. In addition, the correction notice shall include a warning that failure to correct the violation may result in the imposition of an administrative fine and shall state the amount of the fine imposed for the violation.

D.    Procedure Upon Expiration of Correction Period. If the offender remedies the correction condition within the period set forth in the correction notice, the enforcement official may issue the offender a notice of compliance. If the offender does not remedy the correction condition within the period set forth in the correction notice, the enforcement official may issue the offender an administrative citation pursuant to Section 1.12.050. (Ord. 2006-09 § 1 (part), 2006)

1.12.070 Offender’s obligations.

Within fifteen working days from the date the administrative citation is issued, an offender shall pay the fine amount designated on the administrative citation. The issuance date shall mean the date the administrative citation is released from the city’s possession by any of the methods specified in Section 1.12.050(A). (Ord. 2006-09 § 1 (part), 2006)

1.12.080 Administrative fine.

A.    The amounts of the fines for code violations imposed pursuant to this chapter shall be set forth in the schedule of fines established by resolution of the city council.

B.    The schedule of fines shall specify any increased fines for repeat violations of the same code provision by the same person within thirty-six months from the date of an administrative citation.

C.    The schedule of fines shall specify the amount of any late payment charges imposed for the payment of a fine after its due date.

D.    Payments. The administrative fine must be paid directly to the city of Marina within fifteen working days from the date the administrative citation is issued even though the offender requests a hearing pursuant to Section 1.12.090. Payment of a fine shall not excuse or discharge the failure to correct the violation(s) nor shall it bar further enforcement action by the city.

E.    No Waiver. Under no circumstances shall the payment of the administrative fine constitute a waiver of the offender’s right to a hearing. Therefore, even though an offender pays the administrative fine as required by subsection C of this section, the offender may also obtain a hearing to protest the imposition of the administrative fine, provided that the offender makes a timely request for a hearing, pursuant to Section 1.12.090.

F.    Obligation to Correct Violation. Nothing in this chapter shall be interpreted to mean that because an offender has paid the administrative fine that he or she is not required to correct the municipal code violation. If the offender fails to correct the violation(s), subsequent administrative citations may be issued for the same violation(s). The amount of the fine for failure to correct the violation shall increase at a rate specified pursuant to this section. (Ord. 2006-09 § 1 (part), 2006)

1.12.090 Administrative hearing.

A.    Purpose. It is the purpose and intent of the city to afford due process of law to any person who is issued an administrative citation. Due process of law includes adequate notice, an opportunity to participate in a hearing, and an adequate explanation of the reasons justifying the administrative fine.

B.    Request for Hearing. In order to request a hearing, the offender shall, within fifteen working days from the date the administrative citation is issued, submit a written request, together with payment of the fine. Any administrative fine which has been paid shall be refunded if it is determined, after a hearing, that the person charged in the administrative citation is not responsible for the violation(s) or that there was no violation(s) as charged in the administrative citation.

C.    Notification of Hearing. At least fifteen working days prior to the date of the hearing, the city shall, by certified mail or personal service, give notice to the offender of the time, date and location of the hearing.

D.    Hearing Officer.

1.    The city manager shall appoint a hearing officer to hear all facts and testimony presented and deemed appropriate (“hearing officer”).

2.    The employment, performance, evaluation, compensation and benefits of the hearing officer, if any, shall not be directly or indirectly conditioned upon the amount of the administrative citation fines upheld by the hearing officer.

3.    Any person designated to serve as a hearing officer is subject to disqualification for bias, prejudice, interest, or for any other reason, as determined by the city manager. Any offender challenging the hearing officer’s impartiality shall file a statement with the city manager setting forth the grounds for disqualification. The question of disqualification shall be determined in writing by the city manager within ten days following the date on which the disqualification statement is filed.

E.    Administrative Hearing Procedures.

1.    No hearing to contest an administrative citation before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted, and, the fine has been paid in advance.

2.    The city manager shall establish a monthly date for all hearings. A hearing before the hearing officer shall be set for the next hearing date that is not less than fifteen days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

3.    The hearing officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the recipient of the administrative citation caused or maintained the violation(s) specified in the administrative citation.

4.    The recipient of an administrative citation contesting the administrative citation shall be given the opportunity to testify, cross-examine witnesses, and present witnesses and evidence concerning the administrative citation.

5.    The administrative citation and any additional documents submitted by the enforcement official shall constitute prima facie evidence of the respective facts contained in those documents.

6.    Not less than five days prior to the hearing, the recipient of an administrative citation shall be provided with copies of the citation(s), reports and other documents submitted or relied upon by the enforcement official. No other discovery is permitted. Formal rules of the California Evidence Code and discovery shall not apply, except that irrelevant and unduly repetitious evidence may be excluded at the hearing officer’s discretion.

7.    The hearing officer may continue the hearing and request additional information from the enforcement official or the recipient of the administrative citation prior to issuing a written decision.

8.    The offender, at the individual’s expense, and the enforcement officer may be represented by legal counsel at the hearing; however, an offender may be entitled to have the public defender or other counsel appointed at public expense to represent him or her.

F.    Administrative Order.

1.    Within ten working days of the hearing’s conclusion, the hearing officer shall provide the offender with its decision in writing (“administrative order”). The hearing officer shall provide the offender with the administrative order by personal service or by registered or certified mail to the offender’s last known address.

2.    The administrative order shall contain the hearing officer’s findings of fact and conclusions and the procedure described in Section 1.12.050 for seeking judicial review. The decision of the hearing officer shall be final.

3.    A decision in favor of the offender shall constitute a dismissal of the municipal code violation. The city shall return any moneys paid by the offender towards the dismissed municipal code violation fine.

4.    If the hearing officer renders a decision in favor of the city, the offender must comply with the administrative order, or seek judicial review of the administrative order pursuant to Section 1.12.100.

G.    Failure to Attend Administrative Hearing.

1.    Waiver of Right to Hearing. The offender’s failure to appear at a hearing shall constitute a waiver of the right to a hearing. An offender’s failure to appear at the hearing shall be presumed an admission of guilt to the municipal code violation charges as indicated on the administrative citation.

2.    Good Cause. Upon a showing of good cause by the offender, as determined by the hearing officer, the hearing officer may excuse the offender’s failure to appear at the hearing and reschedule the hearing. Under no circumstances shall the hearing be rescheduled more than one time. Nothing in this subsection shall be interpreted to mean the offender is excused from the requirement of paying the administrative fine or appearing at a hearing.

3.    Penalty. If the offender fails to appear at the hearing, the offender may be subject to the penalty set forth in Section 1.12.110. (Ord. 2006-09 § 1 (part), 2006)

1.12.100 Judicial review.

If an administrative order is rendered in favor of the city, the offender may seek judicial review of the administrative order in the Monterey County superior court, by doing one of the following:

A.    Appeal the administrative order pursuant to California Government Code Section 53069.4 within twenty calendar days after service of the administrative order. Pursuant to Section 53069.4, the appealing party shall serve a copy of the appeal notice in person or by first class mail upon the city. Appeal notices shall be sent to the city clerk. If no appeal is filed within the twenty calendar day period, the decision shall be deemed confirmed; or

B.    File a petition for a writ of mandate pursuant to California Code of Civil Procedure Section 1094.5 et seq. within ninety calendar days after service of the administrative order. (Ord. 2006-09 § 1 (part), 2006)

1.12.110 Failure to comply.

A.    Event Defined. As used in this Section 1.12.110, the term “event” means any of the following occurrences:

1.    The offender fails to pay the administrative fine within fifteen working days from the date the administrative citation is issued;

2.    The offender requests a hearing and fails to appear;

3.    The offender fails to either comply with the administrative order or seek judicial review of the administrative order.

B.    Penalty Fine. The occurrence of an event may result in the city increasing the administrative fine, not to exceed the maximum amounts established pursuant to Section 1.12.080 (“penalty fine”).

C.    Account Receivable. Upon the occurrence of an event, the city may treat the administrative fine or penalty fine, whichever is applicable, as an account receivable, subject to the city’s established policy for delinquent accounts receivable.

D.    Violation. An event as described in subsection (A)(1) of this section shall constitute a separate violation of the municipal code which may be redressed through criminal, civil or other remedy established by law or under the provisions of this code.

E.    Collection. The city may use all appropriate legal means to collect the fines imposed pursuant to this chapter. The city may also recover its collection costs, including reasonable attorneys’ fees according to proof. (Ord. 2006-09 § 1 (part), 2006)