Chapter 1.20
ADMINISTRATIVE NOTICE AND ORDER TO ABATE
Sections:
1.20.010 General enforcement authority for this chapter and purpose.
1.20.040 Administrative notice and order.
1.20.050 Recordation of administrative notice and order.
1.20.080 Hearing officer’s decision.
1.20.090 Collection of unpaid fines or administrative costs.
1.20.100 Right to judicial review.
1.20.110 Private right of enforcement against responsible parties.
1.20.010 General enforcement authority for this chapter and purpose.
The purpose and intent of this chapter is to effectively enforce violations of this code committed on a continuing or ongoing basis. 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 and Government Code Section 36900 for the purpose of making any violation of this code or of any ordinance enacted by the city council subject to administrative fines, remedies, and penalties, 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, and to redress and enforce violations of this code that constitute public nuisances through a nuisance abatement mechanism. This chapter shall be used at the sole discretion of the city. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.020 Definitions.
A. “Administrative costs” shall mean 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, and attorneys’ fees.
B. “City manager” shall mean the city manager of the city of Cloverdale or his or her designee.
C. “Code” means the city of Cloverdale Municipal Code, Building Code, Zoning Code, and any Uniform Codes that have been incorporated into this code by reference, as well as any other ordinance of the city.
D. “Enforcement officer” shall mean any Cloverdale employee, contractor, or agent of the city authorized to enforce any provision of this code or this chapter.
E. “Fine” or “fines” shall mean any fines, fees, or penalties assessed or imposed by the city or order of the hearing officer under this chapter, not including administrative costs.
F. “Person” shall mean a natural person or legal entity, and the owners, majority stockholders, corporate officers, trustees, and general partners of a legal entity.
G. “Responsible person” shall mean a person or person’s agent, employee, or independent contractor who causes, permits, allows, maintains, contributes, conceals, or aids or abets the property-related code violation, including a property owner of record, property manager, tenant, subtenant, occupant, or any person in possession of property where the code violation exists. Each responsible party shall be jointly and severally liable for any and all fines, fees, penalties, and administrative costs awarded, upheld, assessed, or imposed under this chapter. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.030 Fines.
The city council may establish the amounts of fines for violations of this code imposed pursuant to this chapter through a schedule of fines established by resolution of the city council. In the absence of such resolution, and except as otherwise specified in this code, the fines for administrative violations of this code shall be as follows:
A. A fine not exceeding one hundred dollars for a first violation.
B. A fine not exceeding two hundred dollars for a second violation of the same ordinance within one year.
C. A fine not exceeding five hundred dollars for each additional violation of the same ordinance within one year. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.040 Administrative notice and order.
A. Whenever a code enforcement officer determines that a violation of a provision of this code 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 information:
1. Date of violation or date violation is identified and address or definite description of the location of the violation(s), such as the street address or tax assessor parcel number (APN);
2. The code sections or conditions violated and a description of the violation(s);
3. A description of the action necessary to correct the violation and reasonable time not less than ten calendar days to correct the violation prior to the imposition of fines;
4. The amount of the fine for the code violation(s);
5. An explanation of how the fine shall be paid, the time period by which it shall be paid, and the consequences of failure to pay the fine;
6. An order prohibiting the continuation or repeated occurrence of the violation and an explanation of the consequences for failing to correct the violation, including that a separate violation exists for each and every calendar day any violation of any provision of this code is committed, continued, or permitted;
7. A description of the administrative review procedures, including the time, date and place of the hearing, which shall be no less than ten calendar days after the date of the administrative notice and order. The description shall also state that the purpose of the hearing will be to make a determination on the existence of the violation(s), public nuisance, and on whether to adopt the administrative order, including the imposition of fines and administrative costs under this chapter;
8. The name, date, and signature of the issuing enforcement officer; and
9. A statement that any violation of this code is deemed to constitute a public nuisance, which if not corrected or abated as required under this administrative notice and order may be found to exist and ordered to be abated after a public hearing, with abatement and related administrative costs being imposed on the responsible person and/or property owner, and collected judicially, or by special assessment or tax collection or lien, as provided under this code.
C. Nothing in this chapter shall preclude, limit, prohibit, restrict, or otherwise prevent the city under this code or state or federal law from taking immediate action, including the immediate issuance of an administrative citation, administrative notice and order, or summary abatement, for violations of this code that pertain to continuing or ongoing building, plumbing, electrical or other similar structural or zoning issues that create an immediate danger to health or safety. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.050 Recordation of administrative notice and order.
A. If the responsible person does not comply with the administrative notice and order within a reasonable time designated in the notice and order, the code enforcement officer may file in the office of the county recorder a certificate describing the property and certifying the following:
1. That the building, structure, or property is in violation of this code; and
2. That the owner has been so notified.
B. 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 issuance of the hearing officer’s decision pursuant to Section 1.20.080.
C. Whenever the corrections ordered in the administrative notice and order have been abated, repaired, or corrected to the extent that a violation no longer exists, the code enforcement officer shall, at his/her 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. 747-2022 § 2 (Exh. A), 2022)
1.20.060 Service procedures.
A. Service of the notices under this chapter shall be made by any of the following methods:
1. Personal service; or
2. Certified mail, postage prepaid with a requested return receipt, and posting the notice conspicuously on or in front of the property.
B. Where real property is in violation of this code, written notice shall be personally served or mailed to the property owner, certified mail, postage prepaid with a requested return receipt, at the address as shown on the most current publicly available equalized county property tax assessment roll. In addition, a copy of the notice shall be conspicuously posted at the property which is in violation of this code.
C. 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 this code. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.070 Hearing procedure.1
A. The purpose of the hearing is to provide a review of the administrative notice and order by a hearing officer and an opportunity to the person subject to a notice and order to object to the determination that a violation has occurred and/or that the violation has continued to exist or that a public nuisance exists.
B. Hearing Officer. The city manager or the manager’s designee shall be authorized to assign as hearing officer any person or persons, qualified by training or experience, whom the city manager may appoint or who are retained by contract to conduct such hearings. The hearing officer may be, but is not required to be, a city employee.
C. The hearing officer shall only consider evidence that is relevant to whether the violation occurred and/or whether a public nuisance exists, whether the recipient of the notice and order is the responsible party, and the administrative costs incurred by the city. Such relevant evidence includes, without limitation, staff reports or presentations, oral, physical, and documentary evidence regarding the alleged violation(s), proposed method of abatement, if any, and administrative costs incurred by the city.
D. The hearing is intended to be informal in nature. Formal rules of evidence and discovery do not apply. The city manager may, from time to time, adopt procedures for the format and proceedings of the administrative hearing. The person contesting the administrative notice and order shall be given the opportunity to testify and present witnesses and evidence. The city shall have the burden of proof by preponderance of the evidence to establish that the responsible person committed the violation specified in the notice and order.
E. Each witness, prior to providing oral testimony, shall be sworn by the hearing officer or his or her designee. Each party shall have the opportunity to cross-examine witnesses and present evidence in support of the party’s cause.
F. 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.
G. On the hearing officer’s own discretion or upon request by any party, the hearing officer may continue the hearing and request additional information from any person or witness prior to issuing a written decision. Notice of the continued hearing must be given to each party and shall include the time, date, and place to which the hearing is to be continued. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.080 Hearing officer’s decision.
A. After considering all of the testimony and evidence submitted at the hearing or continued hearing, the hearing officer shall issue a written decision setting forth the findings supporting the decision within thirty calendar days of the hearing. 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 findings in support of the decision and the imposition of administrative costs and/or fines. 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.
B. If the hearing officer determines that a public nuisance exists, then the written decision shall also include:
1. A description of the nuisance, which, if based upon a violation of this code, shall identify the provision being violated including the factual findings and determinations supporting the decision; and
2. An order to correct or abate the nuisance by a certain date, which if not complied with shall direct that the city take those steps necessary and authorized by law to enter onto the property and abate the nuisance at the cost of the property owner through a special assessment or lien as provided in this code.
C. When the administrative enforcement order directs that the nuisance be corrected or abated, it shall also impose the fines and assess administrative costs against each responsible party incurred up to the date of the administrative hearing. The administrative enforcement order shall include notice to each responsible party that administrative costs incurred up to the date of the administrative hearing may become the subject of a lien or special assessment against the property where the violations occurred, and payment is not received for such administrative costs within thirty calendar days of date of the order.
D. If the hearing officer determines that the administrative notice and order should be upheld as to a responsible party, then the hearing officer shall impose and assess the prescribed fine against each responsible party.
E. The order shall also state the date all payments are due and the fines for any late payment for any amount ordered by the hearing officer and that, if the violation continues, the responsible party may be subject to additional fines or administrative costs, as authorized by law. The order shall also state that fines and administrative costs shall also be collectible as set forth under elsewhere in this code.
F. If the hearing officer determines that the administrative notice and order should be canceled in whole or in part, then the case shall be terminated as to that responsible party.
G. The written decision shall be served upon each party in the manner set forth by Section 1.20.060 or by any other means agreed to by each party, including email, fax, or other means. When the administrative enforcement order is served on the code enforcement officer, the order shall be deemed final. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.090 Collection of unpaid fines or administrative costs.
The city may collect any past due fines assessed and/or administrative costs in the administrative enforcement order by all available legal means. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.100 Right to judicial review.
A. The decision of the hearing officer shall be deemed the final administrative order of the city.
B. Any person who is aggrieved by the decision of the hearing officer may obtain judicial review of such decision by filing an appeal to be heard in the Sonoma County superior court in accordance with California Government Code Section 53069.4. If no appeal is filed with the superior court within twenty calendar days after service, then the written decision is hereby deemed confirmed. In the event that a copy of the notice of appeal is served in person or by first class mail upon the city of Cloverdale 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.
C. Public Nuisance Finding. Any finding in an administrative enforcement order that a nuisance exists and any order made within an administrative enforcement order to abate or correct the nuisance shall constitute a final, administrative determination, shall not be appealable, and shall be subject to judicial review in the Sonoma County superior court by filing with the court a petition for writ of mandate pursuant to the provisions and time limits set in Code of Civil Procedure Section 1094.6. (Ord. 747-2022 § 2 (Exh. A), 2022)
1.20.110 Private right of enforcement against responsible parties.
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 forty calendar days after the administrative 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. 747-2022 § 2 (Exh. A), 2022)
Code reviser’s note: Ord. 747-2022 included two sections numbered 1.20.060. The second Section 1.20.060 and subsequent sections were editorially renumbered to avoid duplication.