Chapter 1.12
ENFORCEMENT PROCEDURES
Sections:
1.12.010 Violations declared a public nuisance.
1.12.020 Recovery by city of attorney fees.
1.12.030 Enforcement authority and powers—Declaration of purpose.
1.12.040 General enforcement authority.
1.12.050 Power to arrest.
1.12.060 Citation procedure.
1.12.070 Violation of promise to appear in court.
1.12.080 Warrant for arrest upon failure to appear.
1.12.090 Right of entry for enforcement officials.
1.12.100 Abatement by civil action.
1.12.110 Abatement by criminal prosecution.
1.12.120 Abatement by administrative proceedings.
1.12.130 Summary abatement of immediate dangers.
1.12.140 Notice to appear or abate.
1.12.150 Form of notice.
1.12.160 Abatement of nuisance prior to scheduled hearing.
1.12.170 Manner of conducting hearing.
1.12.180 Appeal to city council.
1.12.190 Abatement of nuisance.
1.12.200 Limitation on filing judicial action.
1.12.210 Costs of abatement.
1.12.220 Expenses as a special assessment against the property.
1.12.230 Notice of special assessment.
1.12.240 Recovery of police response costs.
1.12.250 Civil penalties.
1.12.010 Violations declared a public nuisance.
In addition to the penalties provided herein, any condition caused or permitted to exist in violation of any of the provisions of this code, of any ordinances or resolution of the city, or of any permit, license, certificate, or authorization issued or given by the city shall be deemed a public nuisance and may be abated by the city in the manner provided hereafter or in any other manner provided by law, including, but not limited to, the institution of civil proceedings in a court of competent jurisdiction. A public nuisance shall include, but it not limited to, a violation or failure to comply with any term, condition, mitigation measure or project description incorporated into any use permit or into other land use approvals or permits. (Prior code § 1.9)
1.12.020 Recovery by city of attorney fees.
The city may in its discretion commence legal actions and/or equitable proceedings in a court of competent jurisdiction to collect and recover any unpaid and delinquent taxes, fees, charges, and/or assessments, as well as applicable penalties and interest, imposed under any provision of this code or city resolution. In any such judicial action or proceeding in which the city prevails or succeeds in whole or in part in the collection of any tax, assessment, charge or fee, the city shall be entitled to recover its attorney fees and costs in addition to any taxes, fees, charges, assessments, penalties and interest. The remedies provided for herein shall be cumulative and not exclusive and shall not preclude the city from any other remedy or relief to which it otherwise would be entitled under law or equity. (Prior code § 1.10)
1.12.030 Enforcement authority and powers—Declaration of purpose.
The city council finds that the enforcement of this code and applicable state codes throughout the city is an important public service. Code enforcement is vital to protection of the public’s health, safety and quality of life. The council recognizes that enforcement starts with the drafting of precise regulations that can be effectively applied in administrative enforcement hearings and judicial proceedings. The council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with code regulations. Failure to comply with an administrative code enforcement action may require the city attorney to file a judicial action to gain compliance. (Prior code § 1.15)
1.12.040 General enforcement authority.
Any police officer, the fire chief, the health officer, the city manager, the building official, the public works director, the planning director, the city clerk, the animal control officer, or any officer or employee of the county of Napa whose duty is to enforce any ordinance of the city, or the duly appointed deputy of such persons, or any person designated by the city council as an enforcement official of the city, have the authority and powers necessary to gain compliance with the provisions of this code and applicable state codes, and all such persons are considered to be enforcement officials within the meaning of this chapter. With the exception of police officers, enforcement officials are not peace officers as defined in Penal Code Section 830. (Prior code § 1.16)
1.12.050 Power to arrest.
Any designated enforcement official is authorized to arrest without a warrant any person whenever the enforcement official has reasonable cause to believe that the person has committed a violation of this code or applicable state codes or caused a public nuisance in his or her presence. An enforcement official, except a police officer, can only arrest a person by issuing a criminal citation pursuant to Penal Code Section 836.5. (Prior code § 1.17)
1.12.060 Citation procedure.
If any person is arrested for a violation of this code and such person is not immediately taken before a magistrate, the arresting officer shall prepare, in triplicate, a written notice to appear in court, containing the name and address of such person, the offense charged and the time and place where and when such person shall appear in court as prescribed by California Penal Code, Chapter 5C, commencing with Section 853.5. (Prior code § 1.18)
1.12.070 Violation of promise to appear in court.
Any person wilfully violating his or her written promise to appear in court is guilty of a misdemeanor regardless of the disposition of the charge upon which he or she was originally arrested. (Prior code § 1.19)
1.12.080 Warrant for arrest upon failure to appear.
When a person signs a written promise to appear at the time and place specified in the written promise to appear and has not posted bail as provided in Section 853.6 of the California Penal Code, the magistrate shall issue and have delivered for execution a warrant for his or her arrest within twenty (20) days after his or her failure to appear as promised, or if such person promises to appear before an officer authorized to accept bail other than a magistrate and fails to do so on or before the date which he or she promised to appear, then, within twenty (20) days after delivery of such written promise to appear by the officer to the magistrate having jurisdiction over the offense. (Prior code § 1.20)
1.12.090 Right of entry for enforcement officials.
A. Whenever an enforcement official has reason to believe that a public nuisance exists or that an inspection is necessary to enforce any provision of this code, the official may enter the premises at any reasonable time in a lawful manner to perform the inspection or any other duty imposed by this code.
B. The enforcement official shall present proper identification, state the purpose of the visit and request permission of the owner or responsible person to enter the premises. If entry is refused, the enforcement official may seek an administrative inspection warrant pursuant to the procedures provided for in California Code of Civil Procedure Sections 1822.50 through 1822.59.
C. When the enforcement official has first obtained a proper inspection warrant or other remedy provided by law to secure entry, no owner or responsible person shall fail or neglect, after proper request is made as provided in this chapter, to promptly permit entry therein by the enforcement official for the purpose of inspection and examination pursuant to this code. (Prior code § 1.21)
1.12.100 Abatement by civil action.
A civil action may be brought in the name of the people of the state to abate a public nuisance by the city attorney or by the district attorney or county counsel, and each of such officers shall have concurrent right to bring such action for a public nuisance within this city. The city or county shall be entitled to recover its costs of abatement, as set forth in Section 1.12.210, including attorney fees, in such action. (Prior code § 1.22)
1.12.110 Abatement by criminal prosecution.
Persons who permit a public nuisance to continue to exist after an abatement notice has been served and after the abatement period specified in the notice has elapsed may be prosecuted by the city attorney or district attorney. (Prior code § 1.23)
1.12.120 Abatement by administrative proceedings.
Upon discovery of any public nuisance as defined by this code, the city administrator, or his or her designee, may notify the owner and any responsible person that the nuisance shall be abated by the city at such person’s expense unless they appear at the stated time and place to show cause why there should be no abatement, pursuant to Sections 1.12.140 through 1.12.200. (Prior code § 1.24)
1.12.130 Summary abatement of immediate dangers.
A. Whenever any condition on or use of property causes or constitutes or reasonably appears to cause or constitute an imminent or immediate danger to the health or safety of the public, the condition or use may be summarily abated by the city without notice or hearing. Reasonable attempts to contact the owner or his, her or its management agent by phone or in person shall be made.
B. When summary abatement is necessary, it shall be ordered only by the city administrator or his or her designee.
C. Summary abatement shall be limited to those actions necessary to eliminate an immediate threat to the public health or safety.
D. Notice of the summary abatement shall be provided to the owner or other responsible parties as soon as practical.
E. The costs and expenses of a summary abatement shall be made a lien on the property and shall be collected pursuant to the procedure found in Sections 1.12.210 to 1.12.230. (Prior code § 1.25)
1.12.140 Notice to appear or abate.
A. Written notice of appearance before the designated hearing officer(s) shall be given to the property owner or responsible person at least fifteen (15) days prior to the date set for hearing. When Section 8.08.010(C) has been violated, such notice shall be given at least thirty (30) days prior to the date set for hearing and a copy of the written notice shall be mailed to the tenant at the property address. Service of the notice shall be made either by personal delivery to the person to be notified or by deposit in the U.S. mail to such person to be notified at the address shown upon the last tax roll or as shown upon some other public record pertaining to the matter to which such notice is directed. Service of mail shall be deemed to have been completed at the time of deposit in the post office.
B. A copy of the notice shall be conspicuously posted in front of the property on which the nuisance exists or in any other location of the property wherein it will be most likely to give notice to the owner or responsible person, at least fifteen (15) or thirty (30) days prior to the hearing date according to subsection (A) of this section.
C. The notice shall direct the owner or responsible person that the nuisance shall be abated by the city at such person’s expense unless they appear at the stated time and place to show cause why there should be no abatement.
D. In all notices citing a violation of Section 8.08.010(C) on residential rental property, the Revenue and Taxation Code Sections 17274 and 24436.5 advisements concerning nondeductibility of certain expenses shall be included, and notice as required by this section shall also be given to the holder or holders of a deed of trust on the property at issue. The holder or holders of a deed of trust shall have an additional fifteen (15) days to comply if the owner has not complied within the time stated in the notice. (Prior code § 1.27)
1.12.150 Form of notice.
The notice to appear or abate shall be substantially in the following form:
NOTICE TO APPEAR OR ABATE PUBLIC NUISANCE
YOU ARE HEREBY NOTIFIED as the owner, agent, lessee or other person occupying or having control of the premises at (address), (assessor’s parcel number), that pursuant to Section 8.08.010 of the St. Helena Municipal Code, the undersigned has determined that there exists upon the above referenced premises a public nuisance, specifically (description of condition constituting nuisance). A copy of Section 8.08.010 is attached.
(Add if violation of Section 8.08.010(C): In accordance with Sections 17274 and 24436.5 of the Revenue and Taxation Code, a tax deduction may not be allowed for interest, taxes, depreciation, or amortization paid or incurred in the taxable year with respect to the above referenced violation.)
YOU ARE HEREBY REQUIRED to abate this condition to the satisfaction of the undersigned within _____ days of this notice or to appear at the City Hall at 1480 Main Street, St. Helena, California, on _____at _____ (time) to show cause, if any exists, why the condition or use should not be abated by the City and the expenses thereof, including, but not limited to, the costs of administration, code enforcement, civil penalties in the amount of $ _____ in accordance with Section 1.12.250 of the Municipal Code, and attorneys fees be charged to you as a personal obligation and/or made a lien upon the property.
Abatement is to be accomplished in the following manner:
(Description of what needs to be done to remedy situation.)
Telephone City Hall at least three (3) business days prior to the date set for hearing and advise whether you intend to appear. If you fail to appear without timely notifying City Hall, you will be charged an administrative fee.
By: __________________________
(Name of City Officer)
(Prior code § 1.28)
1.12.160 Abatement of nuisance prior to scheduled hearing.
Any owner or responsible person may, at his or her own expense and prior to the scheduled hearing, abate the declared nuisance in accordance with the provisions of the notice sent by the city officer, provided that all necessary permits are first obtained. In the event of a public nuisance committed by a tenant, an owner or responsible person shall be considered to have abated the declared nuisance if legal proceedings are commenced against the persons or tenants committing the public nuisance in compliance with state and local law; commencement of the legal proceedings shall be considered to have occurred upon the service of a written notice to terminate the tenancy upon the tenant by the owner or other responsible person. If the city officer determines that the nuisance has been abated, the proceedings under this chapter shall be terminated, except that the owner or responsible person shall be liable for any costs, including incidental expenses and attorney fees, incurred by the city for administration, code enforcement and/or abatement by the city, until the date of termination of proceedings under this chapter. (Prior code § 1.29)
1.12.170 Manner of conducting hearing.
A. Hearing Officer. The city manager shall act as the hearing officer, except in cases in which Section 8.08.010(E) is alleged to have been violated in which case the city council shall act at the hearing officer. The city manager may delegate his or her role to such city officers and employees as he or she deems appropriate.
B. Procedure. At the time and place designated in the notice, the hearing officer shall hear and consider all relevant evidence, including, but not limited to, applicable staff reports, oral, physical and documentary evidence regarding the alleged nuisance and the proposed method of abatement. The hearing may be continued from time to time.
C. Burden of Proof. The enforcement official shall bear the burden of proving by a preponderance of the evidence that a public nuisance exists.
D. Oath or Affirmation. Oral evidence testimony may be taken on oath or affirmation.
E. Evidence. The hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to relying in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state. Irrelevant or unduly repetitious evidence shall be excluded.
F. Representation. The owner or any responsible person may be represented by anyone of his or her choice or may represent himself or herself.
G. Hearsay. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence.
H. Rights. The parties in the hearing shall have the following rights:
1. To call and examine witnesses on any matter relevant to the issues of the hearing;
2. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
3. To impeach any witness regardless of which party first called such witness to testify;
4. To rebut evidence against such parties;
5. To request the hearing officer to take official notice of any fact which would be subject to judicial notice by the courts of this state;
6. To introduce exhibits.
I. Decision. Within ten (10) days after the conclusion of the hearing, the hearing officer shall issue a written decision and where applicable, an order of abatement. This decision shall set forth the factual findings made by the hearing officer, a conclusion as to whether a public nuisance exists, and the manner and time of the abatement. The order shall include reference to the right to appeal set forth in Section 1.12.180. If the hearing officer determines that a nuisance exists which is likely to recur after abatement, the owner may be directed to take adequate precautions for a period of time not to exceed one year so that the nuisance will not recur. Copies of the decision shall be sent to the owner, responsible person, the enforcement official and the city clerk. (Prior code § 1.30)
1.12.180 Appeal to city council.
A. The property owner or other responsible person or any aggrieved city resident may appeal the decision of the hearing officer (except when the hearing officer is the city council) to the city council within ten (10) days of the date of the decision by submitting an appeal in writing to the city clerk. The appeal shall state with reasonable particularity the grounds for the appeal.
B. Appeals shall be scheduled for the earliest regular meeting of the city council, but not later than thirty-five (35) days after the date of filing an appeal, consistent with the agenda preparation procedures and schedule of the city council.
C. In the event of an appeal, the city council shall follow the procedure provided in Section 1.12.170. Notice of the hearing shall be provided in accordance with the procedure set forth in Section 1.12.140.
D. At the conclusion of the appeal hearing before the city council, the council shall issue a written decision and where applicable, adopt a resolution ordering the abatement of the nuisance. The resolution shall set forth the factual findings made by the city council and the manner and timing of the abatement. The decision of the city council shall be final. (Prior code § 1.31)
1.12.190 Abatement of nuisance.
The city manager or city council, as the case may be, shall direct the appropriate city staff to abate and remove such nuisance pursuant to the order of abatement or cause the necessary work to be done so as to abate and remove. (Prior code § 1.32)
1.12.200 Limitation on filing judicial action.
Any court action or proceeding to review or challenge the city council’s decision and order of abatement as reflected in its resolution shall be barred unless it is commenced within thirty (30) days of the date of service of the resolution, and the resolution shall contain a statement so advising the appellant(s) of this time limit on seeking judicial review. No action or proceeding to review or challenge an abatement order or decision shall be permitted unless each ground or basis for such action or proceeding first has been asserted to the hearing officer and council pursuant to the procedures set forth in Sections 1.12.170 and 1.12.180. (Prior code § 1.32.1)
1.12.210 Costs of abatement.
A. The enforcement official shall keep an itemized statement of costs incurred by the city in inspecting and abating a public nuisance and/or the costs to the city in causing the owner or responsible person to abate the nuisance. The costs, including, but not limited to, any civil penalties imposed pursuant to Section 1.12.250, police response costs imposed pursuant to Section 1.12.240, and the incidental expenses of abating the nuisance or causing the owner or responsible person to abate the nuisance shall be billed to the owner or responsible person and shall become due and payable thirty (30) days thereafter. The term “incidental expenses,” shall include, but not be limited to, personnel costs, both direct and indirect, for administration and code enforcement, including, but not limited to, attorney fees; costs incurred in inspecting the property; costs incurred in documenting the nuisance; the actual expenses and costs of the city for preparation of notices, documentation, inspection; and the cost of printing and mailing the notices and documents herein. Once the abatement is completed, either by the city or the owner or responsible person, the enforcement official shall provide a copy of the statement to the owner of the property in question, to any responsible person and to the director of finance. The owner of the property and the responsible person shall be liable jointly and severally for all such costs.
B. The owner or responsible person may request a hearing before the city council to contest the statement of costs. The request for a hearing shall be made within ten (10) days of mailing of the statement by the city clerk or the right to a hearing shall be deemed waived.
C. The city council shall review the statement of costs and any information presented by the owner or responsible person. The city council’s decision shall be mailed to the owner and all responsible persons. The decision of the city council shall be final.
D. The investigation and other costs related to the commission of a criminal act by a tenant or other person not an owner of real property upon which the criminal act is committed shall not be charged to the owner or other responsible person unless such owner or responsible person has been shown to have participated in or had prior knowledge of such criminal acts. (Prior code § 1.33)
1.12.220 Expenses as a special assessment against the property.
If the property owner does not pay the expense of abating the nuisance within thirty (30) days after receipt of the statement of costs pursuant to Section 1.12.210(A), or, if requested, after any decision on appeal to the city council pursuant to Section 1.12.210(C) which confirms in whole or in part the costs of abatement, the costs shall become a special assessment against the real property upon which the nuisance was abated. The assessment shall continue until it is paid together with interest at the rate of ten percent (10%) a year computed from the date of confirmation of the statement until payment. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection and enforcement of municipal taxes apply to this special assessment. (Prior code § 1.34)
1.12.230 Notice of special assessment.
The city shall file in the office of the county recorder a certificate substantially in the following form:
NOTICE OF SPECIAL ASSESSMENT
Under the authority of Government Code section 38773.5 and Title 1 of the St. Helena Municipal Code, the City did on _____, 20_____, abate a nuisance upon the real property hereafter described and then on _____, 20_____ did assess the costs and incidental expenses of the abatement upon the real property and/or the costs of causing the owner or responsible person to abate the nuisance. The City of St. Helena claims a special assessment on the real property in the amount of $ _____. This amount is a special assessment against the real property until it is paid, with interest at the rate of ten percent (10%) a year from _____, 20_____, and discharged of record. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All acts applicable to levy, collection, and enforcement of municipal taxes apply to this special assessment. The real property referred to above, and upon which the special assessment is claimed is that certain parcel of land situated within the City of St. Helena, County of Napa, State of California, more particularly described as follows:
Dated: __________, 20_____
By:__________
(Prior code § 1.35)
1.12.240 Recovery of police response costs.
In addition to any costs and expenses which may be assessed for and/or as a result of an abatement of a nuisance under this chapter, any person or entity whose violation of or failure to comply with any requirements of this code results in the police department being called to and/or visiting that person’s or entity’s property, or to a housing unit in the case of multifamily housing, on two or more occasions within any thirty (30) day period shall be liable and responsible for, and required to reimburse the city for, all costs and expenses incurred by the city in connection with those police service calls. Such costs and expenses shall be assessed pursuant to the procedures set forth in Sections 1.12.210, 1.12.220 and 1.12.230. (Prior code § 1.36)
1.12.250 Civil penalties.
A. In addition to any other costs and expenses assessed pursuant to this chapter, any person or entity who, within the time period stated in the notice to abate pursuant to Section 1.12.140, or any order or decision pursuant to Section 1.12.170 or 1.12.180, whichever is later, fails or refuses to abate any nuisance or violation of any requirement of this chapter shall be required to pay civil penalties as follows:
1. For each violation which the person or entity does not correct as directed by the city within the time given in the written notice by the city, the penalty shall be two hundred fifty dollars ($250.00).
2. For each violation which results in the police department being called to the owner’s property, or to a housing unit in the case of multifamily housing, on two or more occasions within any thirty (30) day period, the penalty shall be two hundred fifty dollars ($250.00) for the second police response, and the penalty shall increase by two hundred fifty dollars ($250.00) for any additional response up to a maximum of one thousand dollars ($1,000.00).
B. All penalties imposed pursuant to this section shall be assessed and recovered pursuant to the procedures set forth in Sections 1.12.210, 1.12.220 and 1.12.230.
C. If the imposition of civil penalties under this section is appealed pursuant to Section 1.12.210(B), the city council may, in its discretion, reduce or excuse the penalty based on findings concerning any of the following factors:
1. The nature, circumstances, extent, and gravity of the violation;
2. The extent to which the violation was wilful and/or intentional;
3. Whether and to what extent the violation can and will be promptly corrected and/or abated, and all city costs and expenses incurred in abating the violation reimbursed. (Prior code § 1.37)