Chapter 1.30
ADMINISTRATIVE PENALTIES
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Sections:
Article I. Purpose and Authority for an Administrative Penalty – Definitions
1.30.100 General enforcement authority for an administrative penalty.
1.30.110 Violations of an ordinance subject to an administrative penalty.
1.30.120 Definitions.
Article II. Procedures for Assessment of Administrative Penalty for Code Violations and Nuisances
1.30.130 Administrative notice and order.
1.30.140 Procedures after the administrative notice and order is issued – Recordation of administrative notice and order.
Article III. Administrative Hearing Procedures
1.30.150 Declaration of purpose.
1.30.160 Hearing officer.
1.30.170 Hearing procedures.
1.30.180 Hearing officer’s decision.
1.30.190 Recovery of administrative notice and order penalties and costs.
1.30.200 Limited appeal – Right to judicial review.
1.30.210 Private right of action.
Article IV. Collection of Administrative Fines and Penalties
1.30.220 Administrative hearing fund – General.
1.30.230 Maintenance of fund.
1.30.240 Recovery of administrative notice and order penalties and costs.
1.30.250 Procedure to confirm a lien.
1.30.260 Report to assessor and tax collector – Addition of assessment to tax bill.
1.30.270 Filing copy of report with county auditor.
1.30.280 Priority of lien.
1.30.290 Collections of assessment – Penalties for foreclosure.
1.30.300 Repayment of administrative hearing fund.
1.30.310 Satisfaction of lien.
Article I. Purpose and Authority for an Administrative Penalty – Definitions
1.30.100 General enforcement authority for an administrative penalty.
This chapter is adopted pursuant to the municipal affairs provision contained in Section 7 of Article XI of the Constitution of the State of California for the purpose of making any violation of the Sonoma Municipal Code, or of any ordinance enacted by the Sonoma city council, subject to administrative fines and penalties, and to set forth the procedures authorized in Government Code Section 53069.4 for the imposition, enforcement, collection, and administrative review of such fines and penalties. (Ord. 02-2005 § 3, 2005).
1.30.110 Violations of an ordinance subject to an administrative penalty.
This section declares that a violation of the Sonoma Municipal Code or of any ordinance enacted by the Sonoma city council is subject to an administrative fine or penalty. The procedures are activated by an administrative notice and order, which may be used at the sole discretion of the city of Sonoma. The remedies provided by this chapter shall be in addition to and cumulative of all other remedies, criminal or civil, which may be pursued by the city of Sonoma to address any violation of its ordinances. (Ord. 02-2005 § 3, 2005).
1.30.120 Definitions.
A. For the purposes of this chapter, "code enforcement officer" shall mean any city of Sonoma employee or agent of the city with the authority to enforce any provision of the Sonoma Municipal Code or ordinance.
B. For the purposes of this chapter, "responsible party" means the person or persons responsible for the event or incident and may include any of the following regarding the property where the violation exists:
1. An owner of record;
2. A manager of the property;
3. One in charge of the premises;
4. An occupant of the premises;
5. A user.
If a responsible party is a minor, then the parent(s) or guardian(s) of the minor shall be the responsible party.
C. Notice and Method of Service. Whenever a notice is required to be given under this chapter, the notice shall be served by any of the following methods:
1. Personal service; or
2. Prepaid first class United States Postal Service; or
3. Posting the notice conspicuously on or in front of the property; or
4. Printed verification of notice by electronic mail (e-mail).
Notwithstanding the method of delivery, the failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under the Sonoma Municipal Code.
D. "Penalty" refers to the sanctions in a resolution adopted pursuant to SMC 1.12.030 and shall include any of the following:
1. Penalty or penalties shall include both the singular and plural form;
2. Fine or fines shall include both the singular and plural form;
3. Abatement of a nuisance or violation shall include both the singular and plural form.
E. "City manager" refers to the city manager or his or her designee.
F. The administrative costs include any and all costs incurred by the city in connection with the matter before the hearing officer including, but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, the services of the hearing officer, any abatement costs, costs for all inspections necessary to enforce the administrative notice and order or the administrative enforcement order, including attorneys’ fees.
1. Pursuant to Government Code Section 38773.5, when the action or proceeding is solely for the abatement of a nuisance, the prevailing party is entitled to recovery of attorneys’ fees and these fees may be included in the costs charged as administrative costs when the city prevails. An award of attorneys’ fees to a prevailing party shall not exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. (Ord. 02-2005 § 3, 2005).
Article II. Procedures for Assessment of Administrative Penalty for Code Violations and Nuisances
1.30.130 Administrative notice and order.
A. Whenever a code enforcement officer determines that a violation of a provision has occurred, the code enforcement officer may issue an administrative notice and order to the responsible party for the violation.
B. Each administrative notice and order shall contain the following elements:
1. The date of the violation or, if the date of the violation is unknown, the date the violation is identified;
2. The address or a definite description of the location where the violation occurred, such as a tax assessor parcel number (A.P.N.);
3. The section of this code that the responsible party has violated and a description of how the responsible party has violated the section;
4. A description of the action necessary to correct the violation and a reasonable time designated to correct the violation prior to the imposition of penalties;
5. The amount of the penalty for the code violation;
6. An explanation of how the penalty shall be paid, the time period in which it shall be paid, and the consequences of failure to pay the penalty;
7. An order prohibiting the continuation or repeated occurrence of the code violation described within administrative notice and order;
8. A description of the administrative review procedures. The description shall include the time, date and place of the hearing, which shall be at least 10 days after the date of the administrative notice and order.
9. The name, date, and signature of the code enforcement officer. (Ord. 02-2005 § 3, 2005).
1.30.140 Procedures after the administrative notice and order is issued – Recordation of administrative notice and order.
If the responsible party does not comply with the order within a reasonable time, the code enforcement officer may file in the office of the county recorder a certificate describing the property and certifying the following:
A. That the building, structure, or property is in violation of the Sonoma Municipal Code or of an uncodified ordinance adopted by the city council;
B. That the owner has been so notified.
This certificate may be filed either prior to the administrative hearing designated in the administrative notice and order, or prior to any continuance thereof, or within a reasonable time following the filing of the administrative enforcement order as that term is defined in SMC 1.30.180.
Whenever the corrections ordered in the administrative notice and order shall thereafter have been completed or the building, structure, or property has been repaired, demolished, or removed so that it no longer exists as a violation thereof, the code enforcement officer shall, at his sole discretion, either file, or cause to be filed, with the county recorder, or, in lieu of such filing, provide to the property owner with notice, a new certificate certifying that the building, structure, or property has been brought into compliance with the administrative notice and order, or that all required corrections have been made so that the building, structure, or property conforms to the requirements contained in the administrative notice and order. (Ord. 02-2005 § 3, 2005).
Article III. Administrative Hearing Procedures
1.30.150 Declaration of purpose.
The purpose of the hearing is to provide a review of the administrative notice and order by a hearing officer. The hearing officer shall only consider evidence that is relevant to the determination of facts contained in the administrative notice and order. (Ord. 02-2005 § 3, 2005).
1.30.160 Hearing officer.
A. The city manager shall appoint one or more individuals as the hearing officer for administrative hearings held pursuant to this chapter.
B. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount of administrative notice and order penalties upheld by the hearing officer.
C. The hearing officer shall not be a city employee or an appointed city official. (Ord. 02-2005 § 3, 2005).
1.30.170 Hearing procedures.
A. Administrative hearings are intended to be informal in nature. Formal rules of evidence and discovery need not apply. The city manager or his/her designees may from time to time adopt procedure, and format, for the administrative hearing.
B. The city bears the burden of proof at an administrative hearing to establish the existence of a violation of the Sonoma Municipal Code.
C. The burden of proof in an administrative hearing is to be supported by a preponderance of the evidence.
D. 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 violation, proposed method of abatement, and the administrative costs incurred by the city.
E. Each witness, prior to testifying, shall be sworn by the hearing officer or a clerk designated by the hearing officer.
F. Each party shall have the opportunity to cross-examine witnesses and present evidence in support of the party’s cause.
G. The failure of a responsible party named in an administrative notice and order to appear at the administrative notice and order hearing shall constitute a failure to exhaust the party’s administrative remedies.
H. On its own motion or on the motion of either party, the hearing officer may continue the hearing for good cause; provided, that notice is given to each party. The notice shall include the time, date and place to which the hearing is continued.
I. City staff has the right to withdraw any item from the administrative hearing agenda. (Ord. 02-2005 § 3, 2005).
1.30.180 Hearing officer’s decision.
A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall, within 45 days, file a written decision with the code enforcement officer. The decision is to be entitled "administrative enforcement order" and shall either uphold or cancel the administrative notice and order as to each named responsible party. The decision shall list the finding in support of the decision and the imposition of the administrative fine or penalty.
B. The hearing officer shall serve the administrative enforcement order on each party; when the administrative enforcement order is served on the code enforcement officer, the order shall be final.
C. When the administrative enforcement order cancels the administrative notice and order as to a responsible party, the case shall be terminated as to that party.
D. When the administrative enforcement order upholds the administrative notice and order as to one or more responsible parties, the hearing officer shall impose and assess not only the prescribed fine and/or penalty but also impose and assess administrative costs against each responsible party. When the administrative enforcement order directs the abatement of a violation, including a nuisance, the violation may be corrected or abated as authorized within this chapter or as otherwise permitted by law.
E. The administrative enforcement order shall include notice to the responsible party that the penalties and the administrative costs may become the subject of a lien against the property where the violations occurred if payment is not received within 30 days of the date of the final order. The administrative enforcement order shall also state the penalty for any late payment and that, if the violation continues, the responsible party may be subject to additional penalties authorized by law.
F. Failure to Commence Work. Whenever the required repair or demolition is not commenced within 30 days after any final administrative enforcement order issued under this chapter becomes effective:
1. The code enforcement officer shall cause the building, structure, or other property described in such order to be vacated by posting at each entrance thereto a notice reading:
SUBSTANDARD BUILDING
DO NOT OCCUPY
It is a misdemeanor to occupy this building, or to remove or deface this notice.
Code Enforcement Officer
City of Sonoma.
2. No person shall occupy any building that has been posted as specified in this subsection. No person shall remove or deface any such notice so posted until the repairs, demolition, or removal ordered by the code enforcement officer have been completed and, where applicable, a certificate of occupancy issued pursuant to the provisions of the building code.
3. Code enforcement officers are authorized to enter upon any property or premises within the city to abate, repair, or demolish any building, structure, or other property pursuant to an administrative enforcement order. If an owner, occupant, or agent refuses permission to enter, inspect, abate, repair, or demolish any thing described in such order, the code enforcement officer may seek an administrative inspection warrant pursuant to the procedures provided for in California Code of Civil Procedure Section 1822.50 et seq., as may be amended from time to time.
4. The code enforcement officer may, in addition to any other remedy herein provided, cause the building, structure, or other property to be repaired to the extent necessary to correct the conditions that render the building substandard as set forth in the administrative enforcement order; or, if the administrative enforcement order required demolition or abatement, to cause the building, structure, or other property to be sold and demolished; or, to be demolished, and the materials, rubble and debris therefrom removed and the lot cleaned. Any such repair or demolition work shall be accomplished and the cost thereof paid and recovered in the manner hereinafter provided in this chapter. Any surplus realized from the sale of any such building, or from the demolition thereof, over and above the cost of demolition and of cleaning the lot shall be paid over to the person or persons lawfully entitled thereto. (Ord. 02-2005 § 3, 2005).
1.30.190 Recovery of administrative notice and order penalties and costs.
The city may collect any past due penalty assessed in the administrative enforcement order by all available legal means. (Ord. 02-2005 § 3, 2005).
1.30.200 Limited appeal – Right to judicial review.
Notwithstanding the provisions of Chapter 1.24 SMC or Section 1094.5 or 1094.6 of the California Code of Civil Procedure, within 20 days after service of the final administrative order or decision of the local agency is made pursuant to an ordinance enacted in accordance with California Government Code Section 53069.4 regarding the imposition, enforcement or collection of the administrative fines or penalties, any person contesting the final administrative order or decision made pursuant to this chapter may seek review by filing an appeal to be heard by the superior court. The right to appeal is limited to the terms and conditions set out in California Government Code Section 53069.4. In the event that a copy of the notice of appeal is served in person or by first-class mail upon the city of Sonoma by the contestant-appellant pursuant to the appeal to the superior court, the time for payment shall be suspended from the date of said service until the judgment of the court is final. (Ord. 02-2005 § 3, 2005).
1.30.210 Private right of action.
Any person, entity, association, or organization aggrieved by a willful violation of any provision of this chapter, where the owner(s) of a property has failed or refused to correct and/or abate a violation under this chapter for 40 days after the administrative enforcement order becomes final, shall have the right to file an action and/or proceeding for injunctive relief and damages against the owner(s) of such property. Any person, entity, association, or organization which prevails or is successful in any such action or proceeding shall be entitled, in addition to any other relief, to recover all reasonable costs, expenses and attorneys’ fees incurred in such action or proceeding. Treble damages also shall be awarded for such willful failure to comply with this chapter. (Ord. 02-2005 § 3, 2005).
Article IV. Collection of Administrative Fines and Penalties
1.30.220 Administrative hearing fund – General.
A. The city council shall establish a special revenue fund to be designated as the administrative hearing fund.
1. Revenue to the fund shall include, but is not limited to, assessments and personal obligations made pursuant to this chapter.
2. Transfers or expenditures from administrative hearing fund shall be budgeted for and approved by the city council. Reimbursements shall be budgeted for said funds to reimburse or defray the costs and expenses that may be incurred by the city in doing or causing to be done the necessary work involving one or more violations identified in an administrative notice and order or in an enforcement order.
B. When any work, including but not limited to repair, demolition, or abatement, is to be done pursuant to this chapter, the city manager, under his or her signing authority, shall cause the work to be accomplished by city personnel or by private contract, pursuant to SMC 1.08.010. Any amount in excess of the city manager’s signature authority shall be approved by the city council. Plans, specifications, and other work requirements necessary to accomplish the objectives of this chapter therefore may be prepared by or at the direction of the city manager, who may employ such labor or professional services on a contract basis as may be deemed reasonably necessary. (Ord. 02-2005 § 3, 2005).
1.30.230 Maintenance of fund.
The city council may at any time transfer to the administrative hearing fund, out of any money in the general fund of the city, such sums as it may deem necessary in order to expedite an administrative notice and order or an enforcement order, and any sum so transferred shall be deemed a loan to the administrative hearing fund and shall be repaid out of the proceeds of the collections hereinafter provided for. All funds collected under the proceedings hereinafter provided for shall be paid to the city of Sonoma which shall credit the same to the administrative hearing fund. (Ord. 02-2005 § 3, 2005).
1.30.240 Recovery of administrative notice and order penalties and costs.
If the responsible party does not comply with either the administrative notice and order or administrative enforcement order, or both, and no appeal has been properly and timely filed, the code enforcement officer shall file with the county recorder a copy of the administrative enforcement order with which the responsible party has failed to comply. (Ord. 02-2005 § 3, 2005).
1.30.250 Procedure to confirm a lien.
A. Whenever the amount of any administrative penalty, including administrative costs, imposed in the administrative enforcement order pursuant to this chapter has not been satisfied in full within 30 days and/or has not been successfully challenged by a timely judicial review pursuant to Government Code Section 53069.4, this penalty may constitute a lien against the real property on which the violation occurred.
B. If the responsible party has not paid administrative penalty, including administrative costs, in full within 30 days and the city wishes to confirm the charge as a lien against the property, the code enforcement officer shall request the confirmation of the lien to be placed on the consent agenda of the city council within 120 days of the administrative enforcement order.
C. The code enforcement officer shall provide written notice to the responsible party of the request to the city council for the confirmation of the penalty as a lien against the property at least 10 days prior to the city council action.
D. The code enforcement officer, in his or her sole discretion, may authorize that the administrative enforcement order imposing the penalty, including the administrative costs against the property involved, when the amount is in excess of $2,500, may be divided into installments payable in not more than five equal annual installments. The resolution adopted pursuant to SMC 1.12.030 confirming the penalty assessment against the property shall also state, when applicable, the number of installments and the rate of interest thereupon; the descriptions of the parcels identified in the confirmation shall be those used for the same parcels on the county assessor’s map books for the current year. (Ord. 02-2005 § 3, 2005).
1.30.260 Report to assessor and tax collector – Addition of assessment to tax bill.
After confirmation of the report, certified copies of the penalty assessment shall be given to the tax assessor and to the tax collector, who shall add the amount of the assessment to the next regular tax bill levied against the parcel for municipal purposes. (Ord. 02-2005 § 3, 2005).
1.30.270 Filing copy of report with county auditor.
If the county assessor and the county tax collector assess property and collect taxes for the city, a certified copy of the penalty assessment shall be filed with the county auditor. The descriptions of the parcels reported shall be those used for the same parcels on the county assessor’s map books for the current year. (Ord. 02-2005 § 3, 2005).
1.30.280 Priority of lien.
A. Priority. Immediately upon its being placed on the assessment roll, the penalty assessment shall be deemed to be complete, the amounts assessed shall be payable, and the assessments shall be liens against the lots or parcels of land assessed respectively. The lien shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be paramount to all other liens except for state, county and municipal taxes, with which it shall have parity. The lien shall continue until the assessment and all interest due and payable thereon are paid.
B. Interest. All such assessments remaining unpaid after 30 days from the date of recording on the assessment roll shall become delinquent and shall bear interest at the rate of seven percent per annum from and after said date. (Ord. 02-2005 § 3, 2005).
1.30.290 Collections of assessment – Penalties for foreclosure.
A. The amount of the penalty assessment shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedure and sale in case of delinquency as provided for ordinary property taxes. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to such assessment.
B. If the legislative body of this jurisdiction has determined that the penalty assessment shall be paid in installments, each installment and any interest thereon shall be collected in the same manner as ordinary property taxes in successive years. If any installment is delinquent, the amount thereof is subject to the same penalties and procedure for sale as provided for ordinary property taxes. (Ord. 02-2005 § 3, 2005).
1.30.300 Repayment of administrative hearing fund.
All money recovered by payment of the charge or penalty assessment or from the sale of the property at foreclosure sale shall be paid to the treasurer of this jurisdiction who shall credit the same to the administrative hearing fund. (Ord. 02-2005 § 3, 2005).
1.30.310 Satisfaction of lien.
Once payment in full is received by the city for outstanding penalties and costs, the city manager shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the office of the county recorder. Such notice of satisfaction shall cancel the city’s lien. (Ord. 02-2005 § 3, 2005).