CHAPTER 9.32
ENFORCEMENT, PENALTIES AND NOTICE1
9.32.010 Violation a public nuisance, enforcement, alternative remedies provided.
Any violation of this title is unlawful and is hereby declared to be a nuisance. The provisions of this title may be enforced by the police department, fire department, animal control officers or any authorized designee of the manager of animal services. Any violation of this title may be prosecuted or enforced through any of the enforcement remedies in this title or other applicable law. The city expressly reserves the right to utilize any enforcement remedies available under any applicable state or federal statute or pursuant to any other lawful power the city may possess. All such remedies shall be alternative to or in conjunction with, and not exclusive of, one another. The election of remedies provided by this title or other applicable law shall be at the sole discretion of city officials. (Ord. 2349 NCS §1 (part), 2009.)
9.32.020 Separate and continuing violations.
A separate offense shall be deemed committed each day a violation of this title occurs or continues; any penalty imposed for a violation pursuant to this chapter may be imposed on a "per day" basis. (Ord. 2349 NCS §1 (part), 2009.)
9.32.030 Violations enforced by criminal prosecution.
Any violation of this title may be prosecuted as a criminal offense. Unless expressly described as an infraction, a violation of any provision of this title, or failure to comply with any mandatory requirement hereof, shall constitute a misdemeanor. Notwithstanding the preceding sentence, a violation of this title may, in the discretion of the prosecuting attorney or other enforcing authority, be charged and prosecuted as an infraction. (Ord. 2349 NCS §1 (part), 2009.)
9.32.040 Violations enforced by civil court action.
A. The provisions of this title may be enforced by a civil court action, prosecuted by the city attorney in the name of the city or in the name of the people of the state of California.
B. Collection of Costs by the City. Whenever the city attorney is authorized or directed to commence or sustain any civil action or proceeding to enforce any provision of this title, or any violation of a rule, regulation or order promulgated or issued pursuant to this title, or to enforce any provision of any contract or agreement, or to enjoin or restrain any violation thereof, or to otherwise abate a nuisance condition or collect any sums of money on behalf of the city, the prevailing party shall be entitled to collect all costs and expenses of the same, including reasonable attorney’s fees in an amount not to exceed the amount of attorney’s fees incurred by the city, as authorized by Government Code Section 38773.5(b), and any such award of costs and expenses shall be made a part of the judgment.
(Ord. 2349 NCS §1 (part), 2009.)
9.32.050 Administrative enforcement of violations.
A. Notice of Violation and Abatement Order. Except as otherwise provided in this title, whenever an animal control officer has reasonable cause to believe a violation of this title has occurred, the animal control officer may issue the responsible party a notice of violation ("NOV") and abatement order. Such NOV and abatement order shall be served on the owner and/or possessor in the manner described in subsection (B) of this section. The animal control officer shall include the following information in the NOV and abatement order:
1. The date and location of the violation, including the address or other description of the location where the violation occurred or is occurring and a brief description of the conditions observed that constitute a violation;
2. The name(s) of the owner and/or possessor, if known;
3. The code section(s) being violated and a description of the section(s);
4. Actions required to correct, abate or mitigate the nuisance condition or code violation, and the time within which the violation must be abated;
5. An order prohibiting the continuation or repeated occurrence of a nuisance condition or violation of this code described in the NOV and abatement order;
6. A statement that the person upon whom the NOV and abatement order is served may appeal the determination that there is/are violation(s) as alleged, that the person who was served with the NOV is the owner and/or possessor of the animal(s), or that the amount of any administrative fine imposed is warranted. The NOV will instruct the person being served as to the proper procedure and time frame for submitting an appeal;
7. Notice that if the owner and/or possessor fails to comply with the order or file a timely appeal, the animal will be subject to impoundment in accordance with Chapter 9.28;
8. The signature of the citing animal control officer and city contact information (address, telephone number) for additional information.
B. The NOV and abatement order shall be served upon the owner and/or possessor personally or by United States mail, first-class postage prepaid, and if by such mail, it shall be sent to the animal owner at his/her last known mailing address. In the event that the last known address of the animal owner and/or possessor cannot be ascertained, the hearing officer or animal control officer shall sign a declaration under penalty of perjury that best efforts were made to provide notice or service to the animal owner and/or possessor. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by first-class mail, service shall be deemed complete at the time of deposit into the United States mail. The failure to receive an NOV and abatement order sent via first-class mail shall not affect the validity of any enforcement proceedings under this title.
C. Proof of service shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner of service, and the date and place of posting, if applicable. The declaration shall be affixed to a copy of the NOV and abatement order and retained by the animal control officer.
D. The failure of an NOV to satisfy all of the requirements of this provision shall not affect the validity of any other enforcement proceedings under this title.
E. The owner and/or possessor of the animal may request a hearing before the animal hearing officer to appeal the abatement order within ten days of the date of service of the order pursuant to this section. A timely appeal shall stay the abatement order until the animal hearing officer rules whether to sustain, modify or overrule the order.
F. It is unlawful for the owner and/or possessor of an animal to fail to comply with the abatement order unless a timely appeal is filed and pending in accordance with this section.
G. If after investigation, the owner and/or possessor of the animal cannot be ascertained and located and the animal control officer reasonably believes that the animal committing the public nuisance has been left outdoors without proper supervision for twenty-four or more hours, the animal control officer may impound the animal if continuation of the nuisance poses an immediate threat to the health and safety of the animal or the public safety. Impoundment shall be in accordance with the procedures for immediate impoundment specified in Section 9.28.070.
H. Appeal.
1. Notice. The hearing officer shall notify the owner and/or possessor of the animal that a hearing will be held, at which time the animal control officer and the animal owner and/or possessor may present evidence as to whether the abatement order shall be sustained, modified, or overruled. The notice of the appeal hearing shall be sent pursuant to subsection (B) of this section. The hearing shall be held promptly within no less than ten days and no more than thirty days after service of the notice on the owner of the animal.
2. Conduct of Hearing. The hearing officer shall conduct the hearing in an informal manner and shall afford the owner and/or possessor of the animal an opportunity to present evidence as to why the order should be modified or overruled. The formal rules of evidence shall not apply; however, whenever possible, any complaint received from a member of the public which serves as the evidentiary basis for the animal control officer to find probable cause shall be sworn to and verified by the complainant and attached to the petition filed by the animal control officer. The hearing officer may admit into evidence all relevant evidence, including incident reports and the affidavits or declarations of witnesses; limit the scope of discovery; shorten the time to produce records or witnesses; exclude witnesses from the hearing when not testifying; exclude disorderly or disruptive persons from the hearing; and make other orders necessary to ensure the fair and orderly conduct of the hearing. The hearing shall be open to the public.
3. Recording. The proceedings at the hearing may be tape recorded if ordered by the hearing officer or requested by the owner and/or possessor of the animal. A stenographic reporter shall also record the proceedings if ordered by the hearing officer or requested by the owner and/or possessor, with the costs thereof to be borne by the requestor. A copy of the tape recording or transcript of the proceedings shall be made available to any person upon request and upon payment of the cost of preparation thereof.
4. Failure to Appear. The hearing officer may decide all issues for or against the owner and/or possessor of the animal even if the owner and/or possessor fails to appear at the hearing.
5. Determination. After the hearing, the hearing officer may find, upon a preponderance of the evidence, that a public nuisance under this section exists. The hearing officer may order the abatement of the nuisance by upholding or modifying the abatement order. The abatement order shall supersede any previous abatement order issued by an animal control officer. Within ten days of the hearing, the determination and abatement order shall be served upon the owner by prepaid first-class mail, return receipt requested. The determination and abatement order of the hearing officer shall be final and conclusive.
I. If the owner and/or possessor of the animal fails to file a timely appeal or abate the public nuisance within ten days of the date of service of the NOV and abatement order or decision by the hearing officer regarding an appeal, the animal control officer may:
1. Cite the owner and/or possessor of the animal for a violation of this title. Each day that a violation occurs is a separate offense.
2. Refer the violation to the city attorney or district attorney for criminal or civil prosecution of a violation and/or abatement of the public nuisance.
3. Impound the animal. The owner and/or possessor may redeem an impounded animal as specified in Chapter 9.28; provided, that the owner and/or possessor agrees to comply and is able to comply with the abatement order, and has paid all impound fees or charges.
J. Exceptions. Nothing in this section shall be construed to apply to noise levels emanating from a legally operated veterinary hospital, humane society or animal control shelter or farm.
K. The remedies of this section shall not limit the city nor any person from seeking any other legal remedy available by law, including but not limited to an action for private or public nuisance.
(Ord. 2349 NCS §1 (part), 2009.)
9.32.060 Judicial review.
Any owner and/or possessor who is aggrieved by a decision of a hearing officer and who has exhausted the administrative remedies provided in this title, or any other applicable law, shall have the right to seek judicial review of such decision by filing a petition for writ of mandate as more fully described in Section 1.14.110, as that section may be amended from time to time. (Ord. 2349 NCS §1 (part), 2009.)
9.32.070 Recovery of costs of abatement.
A. The city may elect to recover its costs to abate nuisance conditions or other violations of this title pursuant to the procedures set forth in Section 1.14.120, as that section may be amended from time to time.
B. Cost Accounts. If any order authorizes the city to abate a nuisance condition or other violations of this title, the city official responsible for such abatement shall keep an accounting of the cost of abatement along with any other recoverable costs pursuant to the procedures outlined in Section 1.14.130.
C. Imposition of Liens or Special Assessments. Any penalty imposed for violations of this title, administrative costs or other expenses of enforcement, and the cost or expenses associated with the abatement of a nuisance as set forth in this title, whether imposed or levied judicially or administratively, may be enforced by the recordation of a lien or may become a special assessment against the property of the owner as described in Section 1.14.140.
(Ord. 2349 NCS §1 (part), 2009.)
9.32.080 Enforcement methods provided herein not exclusive.
Nothing in this title shall prevent the city from initiating any other legal or equitable proceeding to obtain compliance or to discourage noncompliance with the provisions of this title. The enforcement procedures described herein are intended to be alternative methods of obtaining compliance or discouraging noncompliance and are expressly intended to be in addition to any other remedies provided by law or this code. It is the intent of the city council that the immunities prescribed in Penal Code Section 836.5 and Government Code Section 820.2 shall be applicable to the animal control officer, and any other public officers or employees, acting in the course and scope of employment pursuant to this title. (Ord. 2349 NCS §1 (part), 2009.)
9.32.090 Behavior and training diversion program.
At the discretion of the animal control officer, an animal owner who has violated any section of this title may be required to attend the "behavior and training diversion program." The fee for attending the "behavior and training diversion program" shall be determined by city council resolution. (Ord. 2349 NCS §1 (part), 2009.)
Editor’s Note: Ordinance 2349 NCS amended Chapter 9.32 in its entirety. Prior ordinance history includes portions of Ordinance No. 2185 NCS.