Chapter 1.28
ADMINISTRATIVE FINES AND COSTS FOR CITY ORDINANCE VIOLATIONS
Sections:
1.28.010 Purpose and applicability.
1.28.020 Enforcement officer – Defined – Authority.
1.28.030 Administrative notice and order.
1.28.040 Amount of administrative fines.
1.28.050 Payment of administrative fines and costs.
1.28.060 Hearing request – Failure to timely request hearing – Stay of administrative notice and order.
1.28.070 Advance appeal fee and administrative fines and costs deposit – Hardship waiver.
1.28.080 Hearing Examiner.
1.28.090 Hearing procedures.
1.28.100 Hearing Examiner’s decision.
1.28.110 Late payment fee.
1.28.120 Recovery of administrative fines and costs.
1.28.130 Right to judicial review.
1.28.140 Service of notices – Additional requirements for notices affecting real property.
1.28.010 Purpose and applicability.
A. To address the variety of circumstances that may arise in conjunction with addressing violations of the Vacaville Municipal Code, including but not limited to public nuisance regulations. The following mechanisms are intended to facilitate a prompt and responsive code compliance program. The City Council finds that there is a need to establish several mechanisms for such purpose, including a mechanism to impose administrative fines and costs.
B. This chapter authorizes the recovery of administrative fines as provided in California Government Code Section 53069.4.
C. In addition to the recovery of administrative fines, this chapter authorizes the recovery of the City’s costs and expenses of enforcing any violation of this code, including but not limited to the costs of correcting such violation; attorneys’ fees by the prevailing party to those individual actions or proceedings in which the City elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys’ fees; administrative expenses; collection costs; and the recovery of any and all costs authorized under State law or in any other provisions of this code.
D. The remedies provided by this chapter are in addition to all other legal remedies, administrative, criminal and/or civil, which may be pursued by the City to address any violation of this code.
E. Use of this chapter shall be at the sole discretion of the City.
(Ord. 1810, Added, 09/09/2008)
1.28.020 Enforcement officer – Defined – Authority.
A. For purposes of this chapter, an “enforcement officer” shall mean those City employees or agents of the City with the authority to enforce any of the provisions of this code, or their authorized representatives.
B. The enforcement officer has authority to issue administrative notices and orders pursuant to this chapter.
(Ord. 1810, Added, 09/09/2008)
1.28.030 Administrative notice and order.
A. Whenever an enforcement officer charged with the enforcement of any provision of this code determines that a violation of that provision has occurred, the enforcement officer may issue an administrative notice and order to any person responsible for the violation, including, in the case of a violation directly connected to real property, the record owner of the property and any person having charge or possession of the property within the meaning of Section 8.10.010.
B. Each administrative notice and order shall contain the following information:
1. The street address and/or such other description as is required to identify the premises or location where the violation occurred;
2. A statement specifying the conduct or conditions which constitute the violation, and, in the case of a code violation which constitutes a public nuisance, a statement declaring the same to be a public nuisance;
3. If the violation is correctable, a statement of the action required to be taken to correct the violation and the time period(s) within which the person responsible for the violation shall commence and complete the correction;
4. The amount of the administrative fines and costs for the code violation;
5. A description of the administrative fines and costs payment process, including a description of the time within which and the place to which such fines and costs shall be paid;
6. A statement advising that the administrative notice and order may be appealed by filing a written request for appeal hearing within 10 days from the date of the service of the administrative notice and order; and
7. A statement that failure to appeal the administrative notice and order will constitute a waiver of all right to an administrative hearing and will be a final determination of the matter.
C. In addition to the administrative notice and order and administrative fines and costs authorized by this chapter, an order to correct a violation under subsection B.(3) of this section may be enforced as set forth in the specific chapter applicable to that violation.
D. In the case of a continuing violation of this code pertaining to building, plumbing, electrical or other similar structural or zoning issue that, in the opinion of the enforcement officer, does not create an immediate danger to health, safety or public welfare, a reasonable time, not to exceed 120 days, shall be provided to remedy or correct the violation prior to the imposition of administrative fines. In determining what constitutes a reasonable time, the enforcement officer may consider the estimate of local professionals including licensed contractors, but shall have sole discretion to make the final determination as to what the reasonable time shall be.
Notwithstanding the foregoing, the City shall be entitled to collect its costs and expenses incurred in enforcing such a code violation, whether or not the violation was remedied or corrected prior to the 120-day time period for the purpose of imposing administrative fines.
(Ord. 1810, Added, 09/09/2008)
1.28.040 Amount of administrative fines.
A. Unless provided otherwise under applicable federal, State or local law, the amounts of the administrative fines for violations of a City ordinance shall be as follows:
1. For a violation of a City ordinance determined to be an infraction and that does not constitute a violation of the City’s construction and fire standards or any other City code relating to public health or safety, the fines imposed shall not exceed the following amounts:
a. One hundred dollars for the first violation;
b. Two hundred dollars for the second violation of the same ordinance within any consecutive 12-month period; and
c. Five hundred dollars for the third or subsequent violation of the same ordinance within any consecutive 12-month period.
2. For a violation of the City’s construction and fire standards or any other City code relating to public health or safety (whether or not an infraction), or a violation of a City ordinance determined to be a misdemeanor, the fines imposed shall not exceed:
a. One hundred dollars for the first violation;
b. Five hundred dollars for the second violation of the same ordinance within any consecutive 12-month period; and
c. One thousand dollars for the third or subsequent violation of the same ordinance within any consecutive 12-month period.
3. Notwithstanding the foregoing penalty amounts, in the event federal, State or local law permits the assessment of a higher administrative penalty, the department responsible for enforcing the code violation may, within its discretion, assess the higher penalty amount.
B. For the purpose of this chapter, any person who personally, or through an agent, employee or representative, violates any provision of this code shall be guilty of a separate offense for each and every day during any portion of which any such violation is committed, continued or permitted by such person.
(Ord. 1810, Added, 09/09/2008)
1.28.050 Payment of administrative fines and costs.
A. Unless a later date is specified, the administrative fines and costs shall be paid to the City within 30 days from the date of the service of the administrative notice and order.
B. Payment of fines and costs under this chapter shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative notice and order.
(Ord. 1810, Added, 09/09/2008)
1.28.060 Hearing request – Failure to timely request hearing – Stay of administrative notice and order.
A. Any recipient of an administrative notice and order may contest the existence of a violation of the code, that he or she is the responsible party, or any order issued under Section 1.28.030.B.3, by completing a request for appeal hearing form and returning it to the City within 10 calendar days from the date of the service of the administrative notice and order, together with an appeal fee and an advance deposit of the administrative fines and costs, or a hardship waiver form as provided in Section 1.28.070. The form of the request for appeal hearing shall be submitted in accordance with the requirements of Section 8.10.070.C.1.
B. Upon receipt of any appeal filed pursuant to this section, the department responsible for enforcing the code violation shall transmit said appeal to the Hearing Examiner, who shall calendar it for hearing. The department shall also submit a written report to the Hearing Examiner along with the appeal, in accordance with the requirements of Section 8.10.070.C.2.
C. Written notice of the time and place of the appeal hearing shall be given at least 10 calendar days prior to the date of the hearing to each appellant by the Hearing Examiner, including a copy of the report required by subsection B of this section.
D. Failure of any person to file a timely appeal in accordance with the provisions of this section shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the administrative notice and order, or any portion thereof.
E. Enforcement of the administrative notice and order shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.
(Ord. 1810, Added, 09/09/2008)
1.28.070 Advance appeal fee and administrative fines and costs deposit – Hardship waiver.
The City may collect and require an appeal fee and an advance deposit of the administrative fines and costs to be paid at the time the written notice of appeal is filed. The appeal fee shall be set by resolution of the City Council. The fee shall be calculated to recover the total City costs incurred in the appeal including, but not limited to, staff time to process and handle the appeal, Hearing Examiner compensation, preparation and service of notices, and staff appearance in the appeal hearing. No appeal shall proceed without payment of the appeal fee and advance deposit of the administrative fines and costs; provided, that the head of the department responsible for enforcing the code violation may waive or defer such appeal fee, fines and costs upon written request for good cause shown. Good cause may include factors such as severe economic hardship, significant attempts to comply with the notice and order, and other factors indicating good faith attempts to comply.
(Ord. 1810, Added, 09/09/2008)
1.28.080 Hearing Examiner.
The City Manager shall designate the Hearing Examiner for administrative notice and order appeal hearings in accordance with the requirements of Section 8.10.020.B.
(Ord. 1810, Added, 09/09/2008)
1.28.090 Hearing procedures.
A. The conduct of the hearing shall be in accordance with the requirements of Section 8.10.070.C.7.
B. The failure of any recipient of an administrative notice and order to appear at the hearing shall constitute a forfeiture of the advance deposit of the administrative fines and costs, a failure to exhaust his or her administrative remedies, and consent to any order issued pursuant to this chapter as to such person.
(Ord. 1810, Added, 09/09/2008)
1.28.100 Hearing Examiner’s decision.
A. After considering all of the testimony and evidence submitted at the hearing, the Hearing Examiner shall issue a written decision to uphold, modify or cancel the administrative notice and order and shall list in the decision findings of fact and the reasons for that decision. The decision shall take into account the duration and seriousness of the violation, any good faith efforts on the part of the appellant to achieve timely compliance with the administrative notice and order, the frequency of violations by the appellant, the impacts of the violation on the community, and the economic impact of the penalty on the appellant.
B. If the Hearing Examiner determines that the administrative notice and order should be upheld and the administrative fines and costs have not been deposited pursuant to a hardship waiver, the Hearing Examiner shall set forth in the decision a payment schedule for such fines and costs.
C. If the Hearing Examiner determines that the administrative notice and order should be canceled or modified with respect to the amount of the administrative fines and costs assessed, and the administrative fines and costs were deposited with the City, then the City shall promptly refund the amount of the deposited fines and costs or the amount paid in excess of the reduced fines and costs, together with interest at the average rate earned on the City’s portfolio for the period of time that the fines and costs or excess fines and costs were held by the City.
D. If the administrative notice and order included an order to correct the code violation pursuant to Section 1.28.030.B.3, the Hearing Examiner shall also determine whether to uphold, modify or cancel that order. If the decision of the Hearing Examiner is to uphold the order, or to uphold the order as modified, the written decision shall also include:
1. An order to commence correction of the code violation not later than 15 days after the issuance of the decision, and that the correction of the code violation be completed within such time as specified by the Hearing Examiner, or in the alternative, within the time designated by the department responsible for enforcing the code violation; and
2. If the code violation is directly connected to real property, the decision shall inform the owner that if the code violation is not corrected within the time specified, the violation may be corrected by the City without further notice in such manner as may be ordered by the department and the expense thereof made a lien on the property involved and/or a personal obligation. This is in addition to any other legal remedies that the City may choose to compel compliance.
E. The employment, performance evaluation, compensation and benefits of the Hearing Examiner shall not be directly or indirectly conditioned upon the amount or number of administrative notices and orders upheld by the Hearing Examiner.
F. The decision of the Hearing Examiner shall be final when signed by the Hearing Examiner and served as herein provided and is not subject to further administrative appeal.
(Ord. 1810, Added, 09/09/2008)
1.28.110 Late payment fee.
Any person who fails to pay to the City any administrative fines and costs imposed pursuant to the provisions of this chapter on or before the date that such fines and costs are due shall also be liable for a 10 percent late payment fee, compounded monthly.
(Ord. 1810, Added, 09/09/2008)
1.28.120 Recovery of administrative fines and costs.
The City may collect the costs of enforcing this chapter, including but not limited to any past due administrative fines and costs or late payment charges, and collection costs, by use of all available legal means, including, but not limited to, means available for the collection of judgments, liens and actions for recovery of money. Special assessment liens against property may be applied in accordance with the requirements of Chapter 8.04, or in accordance with applicable State law, including but not limited to Sections 38773.5 and 54988 of the Government Code.
(Ord. 1810, Added, 09/09/2008)
1.28.130 Right to judicial review.
Any person aggrieved by an administrative decision of a Hearing Examiner on an administrative notice and order may obtain review of the administrative decision by filing a petition seeking review in accordance with Government Code Section 53069.4.
(Ord. 1810, Added, 09/09/2008)
1.28.140 Service of notices – Additional requirements for notices affecting real property.
A. Whenever a notice, order or report is required to be given or provided under this chapter, unless different provisions herein are otherwise specifically made, such notice may be given either by personal delivery thereof to the person to be notified or by deposit in the United States mail, in a sealed envelope postage prepaid, addressed to such person to be notified at his or her last known business or residential address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in a United States mail box.
B. Whenever the administrative notice and order is issued for a violation directly connected to real property, such notice or report shall also be served by mail or personal service upon the record owner and posted conspicuously on or in front of the property; and one copy thereof shall be served by mail or personal service on each of the following if known to the City or disclosed from official public records: the holder of any mortgage or deed of trust or other lien or encumbrance of record; the owner or holder of any lease of record; and the holder of any other estate or legal interest of record in or to the building or the land on which it is located.
C. As an alternative to the above requirements for service, substituted service may be made as follows:
1. By leaving a copy during usual business hours at the recipient’s business with the person who is apparently in charge, and then mailing a copy by first-class mail to the recipient at the address where the copy was left; or
2. By leaving a copy at the recipient’s dwelling or usual place of abode, in the presence of a competent member of the household, and then mailing a copy by first-class mail to the recipient at the address where the copy was left;
3. If the party entitled to service has a property manager or rental agency overseeing the premises that is the subject of the administrative notice and order, substituted service may be made as set forth above upon the property manager or rental agency.
D. If the person entitled to service cannot be located or service cannot be made as set forth in this section, service may be made by publication in a newspaper of general circulation in Solano County. Service shall be deemed sufficient when it is accomplished pursuant to Government Code Section 6063.
E. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.
F. Proof of giving any notice may be made by the certificate of any officer or employee of the City, or by affidavit of any person over the age of 18 years, which shows service in conformity with this code or other provisions of law applicable to the subject matter concerned.
(Ord. 1810, Added, 09/09/2008)