Chapter 1.10
ADMINISTRATIVE CITATIONS AND PENALTIES
Sections:
1.10.010 Legislative findings and statement of purpose.
1.10.020 Definitions.
1.10.030 Issuance of administrative citation.
1.10.040 Service procedures.
1.10.050 Contents of citation.
1.10.060 Satisfaction of administrative citation.
1.10.070 Appeal of administrative citation.
1.10.080 Hearing officer.
1.10.090 Hearing procedure.
1.10.100 Hearing officer’s decision.
1.10.110 Failure to pay fines.
1.10.120 Reduction of cumulative fines.
1.10.130 Late payment charges.
1.10.140 Right to judicial review.
1.10.150 Procedural compliance.
1.10.010 Legislative findings and statement of purpose.
A. The City Council hereby finds that there is a need for an alternative method of enforcement of the Poway Municipal Code, conditions imposed on permits, entitlements, and CEQA reviews, and the terms of City agreements made pursuant to the City’s constitutional police power. The City Council further finds that an appropriate method of enforcement is the imposition of administrative penalties as independently authorized by both California Constitution Article XI, Section 7, and Government Code Section 53069.4.
B. The procedures established in this chapter shall be in addition to criminal, civil or any other legal remedy established by law for violation of the Poway Municipal Code or permit and entitlement conditions. Issuance of a citation pursuant to this chapter shall not preclude enforcement by a separate criminal or civil action.
C. The City Council hereby finds and determines that enforcement of the Poway Municipal Code, other ordinances adopted by the City, conditions of approval of entitlements, permits, and CEQA reviews, and terms and conditions of City agreements made pursuant to the police power is a matter of public health, safety and welfare and serves important public purposes. The City of Poway adopts this administrative penalties program in order to achieve the following goals:
1. To protect the public health, safety and welfare of the citizens of the City;
2. To gain compliance with the Poway Municipal Code, ordinances, agreements, and regulations of the City enacted pursuant to its police powers, and the conditions of approval of permits, entitlements, and CEQA reviews granted by the City pursuant to the City’s police powers in a timely and efficient manner;
3. To provide for an administrative process to appeal the imposition of administrative citations and fines;
4. To provide a method to hold parties responsible when they fail or refuse to comply with the provisions of the Poway Municipal Code, ordinances, agreements, or terms and conditions of entitlements or permits enacted or approved pursuant to the police power;
5. To avoid or minimize the expense and delay of enforcement in the civil or criminal justice system. (Ord. 557 § 2, 2002)
1.10.020 Definitions.
A. “Enforcement officer” means any officer or employee of the City with the authority to enforce the Poway Municipal Code, including but not limited to a code compliance officer, inspector, and the Fire Marshal.
B. “Responsible person” means any individual who is the owner or occupant of real property, the holder or the agent of the holder of any permit, entitlement, or review, or the party or agent of a party to any agreement covered by this chapter; the owner or authorized agent of any business, company, or entity subject to this chapter; or the parent or legal guardian of any such person under the age of 18 years; who violates any ordinance, regulation, permit, entitlement, review, or agreement described in PMC 1.10.030. (Ord. 557 § 2, 2002)
1.10.030 Issuance of administrative citation.
A. Any person who violates any provision of the Poway Municipal Code or regulation of the City, any condition of approval of a permit or entitlement, any condition of an environmental review, or any term or condition of any agreement with the City made pursuant to the police power may be issued an administrative citation by an enforcement officer as provided in this chapter. A violation of the Poway Municipal Code includes, but is not limited to, all violations of that code, the Uniform Codes adopted by the City Council, and all uncodified ordinances. A violation of a condition of approval of a permit or entitlement, includes, but is not limited to, a conditional use permit, minor conditional use permit, temporary use permit, development review, sign permit, variance, specific plan, parcel map, subdivision map, building or grading permit, any plan, permit or best management practice authorized, issued or required by Chapter 13.09 PMC, any encroachment or right-of-way permit, any license or permit issued pursuant to PMC Title 5, any drug paraphernalia license issued pursuant to Chapter 9.08 PMC, and any adult oriented business regulatory permit required by Chapter 17.38 PMC. A violation of a condition of approval of an environmental review includes, but is not limited to, any environmental impact report, mitigated negative declaration, negative declaration, or determination of categorical exemption. A violation of a term or condition of any agreement with the City made pursuant to the police power includes, but is not limited to, any development agreement, owner participation agreement, disposition and development agreement, road maintenance agreement, any easement, license, or other real property use agreement, or any agreement made with the City to implement any ordinance, plan, permit, entitlement, or review approved by the City.
B. Each and every day a violation exists constitutes a separate and distinct offense. A separate citation may be issued for each day a violation occurs.
C. A civil fine shall be assessed by means of an administrative citation issued by the enforcement officer and shall be payable directly to the City of Poway.
D. Fines shall be assessed in the amounts specified for administrative penalties elsewhere in the Poway Municipal Code, by resolution of the City Council, or as follows:
1. A fine not exceeding $100.00 for a first violation;
2. A fine not exceeding $200.00 for a second violation of the same ordinance, term, or condition within one year from the date of the first violation;
3. A fine not exceeding $500.00 for a third violation of the same ordinance, term, or condition within one year from the date of the first violation;
4. A fine not exceeding $1,000 for each additional violation after the third violation of the same ordinance, term or condition within one year from the date of the first violation.
A second or subsequent violation need only be of the same ordinance, term, or condition to require the larger fine, and need not involve the same personnel or property, provided that the same responsible person is cited. The fine amounts shall be cumulative where multiple citations are issued. (Ord. 557 § 2, 2002)
1.10.040 Service procedures.
An administrative citation on a form approved by the City Manager may be served upon any responsible person by an enforcement officer in the following manner:
A. Personal Service. In any case where an administrative citation is issued:
1. The enforcement officer shall attempt to locate and personally serve the responsible person and obtain the signature of the responsible person on the administrative citation.
2. If the responsible person served refuses or fails to sign the administrative citation, the failure or refusal to assign shall not affect the validity of the administrative citation or of subsequent proceedings.
B. Service of Citation by Mail. If the enforcement officer is unable to locate a responsible person, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the citation shall 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.
C. Service by Citation by Posting Notice. If the enforcement officer does not succeed in personally serving a responsible person, or by certified mail or regular mail, the enforcement officer shall post the administrative citation on any real property within the City in which the City has knowledge that the responsible person has a legal interest, and such posting shall be deemed effective service. (Ord. 557 § 2, 2002)
1.10.050 Contents of citation.
Each administrative citation shall contain the following information:
A. The date of issuance of the citation and the date, approximate time, and address or definite description of the location where the violation(s) was observed, where applicable;
B. The code sections or conditions violated and a description of the violation(s);
C. An order to the responsible person to correct the violations by a specified correction date, if applicable, and an explanation of the consequences of failure to correct the violation(s);
D. The amount of the fine for each violation;
E. An explanation of how the fine shall be paid and the date by which it shall be paid (15 days after the correction date);
F. Identification of the right of appeal, including the time within which the citation may be contested and the place to obtain a request for hearing form to contest the administrative citation;
G. The name and signature of the enforcement officer and if possible the signature for the responsible person; and
H. A statement that if the fine is not timely paid, a late payment charge of 50 percent of the amount of the fine will be added to the fine. (Ord. 557 § 2, 2002)
1.10.060 Satisfaction of administrative citation.
Upon receipt of a citation, the responsible person must do both of the following:
A. Pay the fine to the City within 15 days from the correction date of the administrative citation. All fines assessed shall be payable to the City of Poway. 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.
B. Remedy the violation(s), if the violation(s) is of such a nature that it can be remedied.
If the violation(s) is corrected before the date provided on the citation no fine shall be payable. If the responsible person fails to correct the violation(s), subsequent administrative citations may be issued for the same violation(s) or a criminal or civil action may be filed. (Ord. 557 § 2, 2002)
1.10.070 Appeal of administrative citation.
A. Any recipient of an administrative citation may contest that there was a violation of any ordinance, regulation, permit, entitlement, or agreement covered by this chapter, or that he or she is the responsible person by completing a request for hearing form and returning it to the City Clerk within 15 days from the issuance date of the administrative citation. The request for hearing shall be accompanied by a deposit in the amount of the fine or by a sworn affidavit together with documentation demonstrating to the satisfaction of the City Manager the person’s actual financial inability to deposit the amount of the fine in advance of the hearing. Any administrative citation deposit shall be refunded within 10 days of a determination, after a hearing, that the person charged in the administrative citation was not responsible for the violation(s) or that there was no violation(s) as charged in the administrative citation.
B. The City Manager shall issue a letter to the person submitting a hardship waiver affidavit granting or denying the waiver. If waiver is denied, the appeal shall be dismissed unless the deposit is made within five days of the date of the letter. The determination of the City Manager shall be final and shall not be subject to appeal or judicial review. (Ord. 557 § 2, 2002)
1.10.080 Hearing officer.
The Poway City Manager shall designate the hearing officer for the administrative citation hearing. The compensation of the hearing officer, if any, shall be paid by the City. Compensation shall not be directly or indirectly conditioned upon whether or not administrative citations are upheld by the hearing officer. (Ord. 557 § 2, 2002)
1.10.090 Hearing procedure.
A. No hearing to appeal an administrative citation before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted in accordance with PMC 1.10.070, and the deposit has been made or hardship waiver granted.
B. A hearing before the hearing officer shall be set for a date that is not sooner than 15 and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter. If the appellant asserts that First Amendment rights are impaired by the citation and requests an earlier hearing, the hearing shall be within five days from the date of such request. The appellant shall be notified of the time and place set for the hearing at least 10 days prior to the date of the hearing unless the hearing date has been expedited.
C. The hearing officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the responsible person has caused or maintained the violation(s). Courtroom rules of evidence shall not apply. Relevant hearsay evidence and written reports may be admitted whether or not the speaker or author is present to testify if the hearing officer determines that the evidence is reliable. Admission of evidence and the conduct of the hearing shall be controlled by the hearing officer in accordance with the fundamentals of due process. The hearing officer may limit the total length of the hearing to one hour, and shall allow the appellant at least as much time to present its case as is allowed the City.
D. The appellant shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation. The City’s case shall be presented by an enforcement officer or by the City Attorney. The appellant may be represented by counsel.
E. The failure of the appellant to appear at the hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies.
F. The administrative citation and any additional documents prepared by the City in connection with the violation(s) may be submitted by the enforcement officer and shall constitute prima facie evidence of the respective facts contained in those documents.
G. If the appellant so requests, the City shall provide to the appellant copies of all documents that it intends to introduce at the hearing. Such copies shall be provided to the appellant within five days of the request. If, after copies of documents have been provided to appellant, the City determines to submit to the hearing officer additional documents then, whenever possible, a copy of such documents shall be provided to the appellant prior to the hearing.
H. The hearing officer may continue the hearing and request additional information from the enforcement officer or the appellant prior to issuing a written decision. (Ord. 557 § 2, 2002)
1.10.100 Hearing officer’s decision.
A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer may announce a decision orally, but in any event, shall prepare a written decision. The decision shall be provided to the parties within 10 days of the hearing and shall either affirm the issuance of the citation as issued or dismiss the citation. The decision shall briefly state the reasons for the conclusion of the hearing officer. The City shall serve the decision on the appellant in accordance with PMC 1.10.040. The decision of the hearing officer shall be final. If the hearing officer determines that First Amendment rights are involved, the decision shall be issued orally at the conclusion of the hearing and shall be effective immediately. A written decision shall thereafter be issued as provided hereinbelow.
B. If the hearing officer affirms the issuance of the administrative citation, then the deposit with the City shall be retained by the City. If a hardship waiver was granted, the decision shall set forth a payment schedule for the fine.
C. If the hearing officer dismisses the administrative citation, then the City shall promptly refund the deposit.
D. The hearing officer shall not have the power to reduce the fine. (Ord. 557 § 2, 2002)
1.10.110 Failure to pay fines.
A. The failure of any person to pay the civil fines imposed by an administrative citation within the time specified on the citation may result in the filing of a claim with the Small Claims Court or the Superior Court for recovery of the fine. The only issue to be adjudicated by the court shall be whether or not the fines were paid. A person cited may only obtain judicial review of the validity of the citation by writ of mandate after exhausting their administrative remedies by requesting and participating in an administrative hearing before a hearing officer. In the court action, the City may also recover its collection costs, including the cost of the hearing officer, and any court fees, according to proof.
B. In lieu of or in addition to the filing of a court action, the City may impose a code enforcement lien on the real property upon which the violation occurs. Any lien imposed pursuant to this chapter shall attach upon the recordation of a Notice of Code Enforcement Lien in the Office of the County Recorder. (Ord. 557 § 2, 2002)
1.10.120 Reduction of cumulative fines.
If the violation is corrected within a reasonable time after the decision of the hearing officer, the City Manager shall have the discretion to reduce any cumulative fines to a total of not less than $1,000 upon good cause shown by the responsible person. The determination of the City Manager shall be final and shall not be subject to appeal or judicial review. Fines shall not otherwise be reduced. (Ord. 557 § 2, 2002)
1.10.130 Late payment charges.
Any person who fails to pay a fine imposed by this chapter on or before the date that payment is due, shall also be liable for the payment of a late payment charge of 50 percent of the fine. (Ord. 557 § 2, 2002)
1.10.140 Right to judicial review.
Either the City or the appellant aggrieved by a decision of a hearing officer on an administrative citation may obtain review of the decision by filing a petition for review with the San Diego Superior Court in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4(b). Said procedure shall be available for all judicial review under this chapter, notwithstanding that the term or condition being enforced pursuant to this chapter may not be a matter covered by Section 53069.4(a). Judicial review of a citation shall not be available without first participating in a hearing as provided in this chapter. (Ord. 557 § 2, 2002)
1.10.150 Procedural compliance.
Failure to comply with any procedural requirement of this chapter, to receive any notice or decision specified in this chapter, or to receive any copy required to be provided by this chapter shall not affect the validity of proceedings conducted hereunder unless the responsible person is denied constitutional due process thereby. (Ord. 557 § 2, 2002)