Chapter 8.24
ADMINISTRATIVE CITATIONS
Sections:
8.24.010 Legislative findings and statement of purpose.
8.24.060 Satisfaction of administrative citation.
8.24.070 Appeal of administrative citation.
8.24.080 Advance deposit hardship waiver.
8.24.090 Hearing procedure – Fees.
8.24.100 Hearing officer’s decision.
8.24.110 Failure to pay fines.
8.24.130 Right to judicial review.
8.24.010 Legislative findings and statement of purpose.
The city council hereby finds that there is a need for an alternative method of code enforcement to the traditional civil, criminal or administrative abatement actions, to effect compliance with the Escalon Municipal Code, its adopted codes and applicable state codes. The city council further finds that an appropriate alternative method of enforcement for code violations is an administrative citation program as authorized by Government Code Section 53069.4.
The procedures established in this chapter shall be in addition to criminal, civil or administrative abatement or any other legal remedy established by law to address violations of the Escalon Municipal Code, its adopted codes or applicable state codes.
Use of this chapter shall be at the sole discretion of the city. (Ord. 564 § 3, 2017)
8.24.020 Definitions.
A. “Administrative citation” means the written notice provided to a responsible person to inform that person of a violation of the Escalon Municipal Code, its adopted codes or applicable state codes.
B. “Enforcement officer” means any officer or employee with the authority to enforce the Escalon Municipal Code, its adopted codes or applicable state codes.
C. “Hearing officer” means the hearing officer appointed by the city manager. The hearing officer may be a city employee, but in that event the hearing officer shall not have had any responsibility for any investigation, prosecution or enforcement of the type of proceeding at issue and shall not have had any personal involvement in the proceeding to be heard within the last 12 months or possess any disqualifying interest in the outcome of the proceeding.
D. “Nonemergency health or safety violation” means a violation of any building, plumbing, electrical or other similar structural or zoning ordinance which does not create an immediate danger to health or safety.
E. “Responsible person” means:
1. Any individual or legal entity who is the owner, tenant, co-tenant, lessee, sub-lessee, occupant or other person with any right to possession of the real property, owner or authorized agent of any business, company, or entity, or the parent or the legal guardian of any person under the age of 18 years, who causes, permits or maintains a violation of the Escalon Municipal Code, its adopted codes or applicable state codes.
2. Any individual, legal entity or the parent or the legal guardian of any person under the age of 18 years, who causes, permits or maintains a violation of the Escalon Municipal Code, its adopted codes or applicable state codes. (Ord. 564 § 3, 2017)
8.24.030 Authority.
A. Any responsible person violating any provision of the Escalon Municipal Code, its adopted codes or applicable state codes may be issued an administrative citation by an enforcement officer as provided in this chapter. A violation of this code includes, but is not limited to, all violations of the Escalon Municipal Code, the codes adopted by the city council, applicable state codes or failure to comply with any condition imposed by any entitlement, permit, agreement or environmental document issued or approved under the provisions of this code.
B. Each and every day or portion thereof that a violation of this code exists constitutes a separate and distinct offense.
C. A civil fine shall be assessed by means of an administrative citation issued by an enforcement officer.
D. Fines shall be assessed in the amounts specified by resolution of the city council, or where no amount is specified, fines shall be assessed in an amount not exceeding:
1. One hundred dollars for a first violation;
2. Two hundred dollars for a second violation of the same provision or permit within one year;
3. Five hundred dollars for each additional violation of the same provision or permit within one year. (Ord. 564 § 3, 2017)
8.24.040 Service procedures.
An administrative citation on a form approved by the city manager may be issued to the responsible person by an enforcement officer for violations of the Escalon Municipal Code, its adopted codes or applicable state codes in the following manner:
A. Personal Service.
1. The enforcement officer shall attempt to locate and personally serve the responsible person and, if possible, obtain the signature of the responsible person on the administrative citation.
2. If the served responsible person refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or of subsequent proceedings.
B. Service of Citation by Mail.
1. If the enforcement officer is unable to locate the responsible person, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a return receipt requested. Simultaneously, the administrative citation may be sent by first class mail.
2. Service by mail shall be sent to the responsible person’s address as shown on public records or as known to the city. If the administrative citation is sent by certified mail and returned unsigned, then service shall be deemed effective by first class mail, provided the administrative citation sent by the first class mail is not returned.
C. Service of Citation by Posting Notice.
1. If the enforcement officer does not succeed in serving the responsible person personally or by certified or first class mail, the enforcement officer may post the administrative citation in a conspicuous location on any real property within the city in which the city has knowledge that the responsible person has a legal interest.
2. Posting of the administrative citation shall be deemed effective service as of the date that the citation is actually posted. (Ord. 564 § 3, 2017)
8.24.050 Contents of notice.
Each administrative citation shall contain the following information:
A. Date, approximate time and address or definite description of the location where the violation(s) was observed;
B. The code section(s) or condition(s) violated and a description of the violation(s);
C. A description of the action required to correct the violation(s);
D. An order to the responsible person to correct the violation(s) by a correction date and an explanation of the consequences of failure to correct the violation(s);
E. The amount of the fine for the violation(s);
F. An explanation of how the fine shall be paid, the deadline by which it shall be paid, and the place to which the fine shall be paid;
G. An order prohibiting the continuation or repeated occurrence of the code violation(s) described in the administrative citation;
H. Identification of rights of appeal, including the time within which the administrative citation may be contested and the place to obtain a notice of appeal and request for hearing form to contest the administrative citation; and
I. The name and signature of the enforcement officer and, if possible, the signature of the responsible person. (Ord. 564 § 3, 2017)
8.24.060 Satisfaction of administrative citation.
A. Upon receipt of an administrative citation, the responsible person shall do the following:
1. Remedy the violation(s) if the violation(s) is of such a nature that it can be remedied. If non-emergency health or safety violation(s) is corrected before the correction date provided on the administrative citation, no fine shall be imposed.
2. Pay the fine to the city within 15 calendar days from the correction date on the administrative citation. All fines assessed shall be payable to the City of Escalon, Citations c/o Finance Department Office, 2060 McHenry Avenue, Escalon, CA 95320. 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. If the responsible person fails to correct the violation(s) set forth in the administrative citation, subsequent administrative citations may be issued for the same violation(s). The amount of the fine for failure to correct the violation shall increase at the rate specified in EMC 8.24.030(D). (Ord. 564 § 3, 2017)
8.24.070 Appeal of administrative citation.
A. Any recipient of an administrative citation may contest that there was a violation of the Escalon Municipal Code or that he or she is the responsible person by completing a notice of appeal and request for hearing form and filing it with the city clerk within 15 calendar days from the date of issuance of the administration citation, together with an advance deposit of the total amount of the fine, or the timely filing of a request for an advance deposit hardship waiver form pursuant to EMC 8.24.080. Any administrative citation fine, which has been deposited, shall be refunded if it is determined, 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. In addition to the requirements listed in subsection A of this section, any appeal of the administrative citation shall include a detailed written explanation as to the grounds for appeal of the administrative citation. Any appeal shall be limited to such written grounds.
C. Appeals of administrative citations shall be conducted under the provisions of EMC 8.24.090. (Ord. 564 § 3, 2017)
8.24.080 Advance deposit hardship waiver.
A. Any person who intends to request a hearing to contest an administrative citation and who is financially unable to make the advance deposit of the fine may file a request for an advance deposit hardship waiver form, available from the finance department.
B. The request shall be filed with the finance department within five days of the date of the issuance of the administrative citation.
C. The requirement of depositing the full amount of the fine as described in EMC 8.24.070(A) shall be stayed unless or until the director of finance makes a determination not to issue the advance deposit hardship waiver.
D. The director may waive the requirement for advance deposit only if the cited party submits to the director a declaration under penalty of perjury supported by evidence that shows to the director’s reasonable satisfaction that such party is financially unable to deposit the total amount of the fine in advance of the hearing.
E. If the director determines not to issue an advance deposit hardship waiver, the cited party shall remit the deposit to the city within five days of the date of that decision or 15 days from the date of issuance of the administrative citation, whichever is later.
F. The director shall list his/her reasons for granting or not granting an advance deposit hardship waiver in writing and serve it on the cited party. The director’s decision is final. (Ord. 564 § 3, 2017)
8.24.090 Hearing procedure – Fees.
A. A hearing request shall be deemed filed upon receipt of a hearing request form by the city clerk’s office and the payment of any hearing fee which may be established by city council resolution. Any hearing fee shall not exceed the reasonable cost to the city of a hearing.
B. The hearing before the hearing officer shall be set for a date that is not less than 15 and not more than 60 calendar days from the date of hearing request. The person requesting the hearing shall be notified of the time and place set for the hearing at least 15 calendar days prior to the date of the hearing. The hearing date may be extended beyond the time period prescribed in this section with the consent of the person requesting the hearing.
C. The hearing officer shall only consider evidence that is relevant to the hearing matter.
D. The person requesting the hearing shall be given the opportunity to testify and present witnesses and evidence concerning the hearing matter.
E. The failure to appear at the hearing shall constitute a forfeiture of any fine and a failure to exhaust administrative remedies.
F. Any documents submitted by the city shall constitute prima facie evidence of the respective facts contained in those documents.
G. At least 10 days prior to the date of the hearing, the person requesting the hearing shall be provided with copies of the citations, reports and other documents submitted or relied upon by the city. No other discovery is permitted. Formal rules of evidence shall not apply.
H. If the city submits an additional written report concerning the hearing matter to the hearing officer for consideration at the hearing, then a copy of the report shall also be served on the person requesting the hearing in accordance with EMC 8.24.040 at least five days prior to the date of the hearing.
I. The hearing officer may continue the hearing and request additional information from the city or the person requesting the hearing prior to issuing a written decision.
J. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision within 90 days of the date of the hearing and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.
K. The person requesting the hearing shall be served with a copy of the hearing officer’s written decision in the manner prescribed by EMC 8.24.040.
The hearing officer is not required to provide transcriptions of hearings, but is required to make available tapes of hearings for a fee. (Ord. 564 § 3, 2017)
8.24.100 Hearing officer’s decision.
A. If the hearing officer determines that the administrative citation should be upheld, then the city shall retain the fine amount on deposit with the city.
B. If the hearing officer determines that the administrative citation should be upheld, and the fine has not been deposited pursuant to an advance deposit hardship waiver, the hearing officer shall set a fine payment schedule for the payment of the fine.
C. If the hearing officer determines that the administrative citation should be canceled and the fine was deposited with the city, then the city shall promptly refund the amount of the deposited fine. (Ord. 564 § 3, 2017)
8.24.110 Failure to pay fines.
A. If any person fails to pay the civil fines assessed by an administrative citation within the time specified on the citation, the city may file a claim in small claims court, refer the matter to a collection agency or pursue any other available legal remedy to collect the fines.
B. Any person who fails to pay to the city any fine imposed pursuant to this chapter on or before the date that fine is due also shall be liable for the payment of late payment charges in the amount of $25.00, plus interest at the maximum rate permitted by law. (Ord. 564 § 3, 2017)
8.24.120 Notices.
A. The administrative citation and all notices to be given by this chapter shall be served on the responsible person in accordance with the provisions of this chapter and EMC 8.24.040, where applicable.
B. Failure to receive actual notice specified in this chapter does not affect the validity of proceedings conducted hereunder. (Ord. 564 § 3, 2017)
8.24.130 Right to judicial review.
A. Any person aggrieved by a decision of a hearing officer may obtain review of the decision by filing a petition for review with the San Joaquin County superior court in accordance with the timelines and provisions as set forth in the Government Code and/or Code of Civil Procedure, as applicable.
B. Nothing contained in this section shall be construed to prohibit any person from seeking prompt judicial review of a decision of a city official regarding the issuance, denial, suspension or revocation of a permit or license for an activity protected by the First Amendment of the United States Constitution as provided by Code of Civil Procedure Section 1094.8. The city shall comply with all requirements described therein for prompt judicial review. (Ord. 564 § 3, 2017)