Chapter 1.18
CODE ENFORCEMENT AUTHORITY AND PROCEDURES
Sections:
1.18.020 General enforcement authority--Enforcement officers.
1.18.030 Authority to inspect.
1.18.040 General provisions regarding code violations.
1.18.050 Administrative citations and fines.
1.18.080 Issuance of permits--Violations of law.
1.18.090 Adjudicatory decisions.
1.18.010 Purpose.
A. The city council finds that enforcement of the Kerman Municipal Code and other applicable laws throughout the city is an important public service. Code enforcement is vital to protection of the public’s health, safety, and quality of life. The council recognizes that enforcement starts with precise regulations that can be understood by city officials and members of the public and effectively applied in administrative enforcement hearings and judicial proceedings. The council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with code regulations.
B. Under Article XI, Section 7, of the California Constitution, the city has the authority to make and enforce within its jurisdictional limits all laws for the public health, safety and welfare of the citizens of Kerman which are not in conflict with general state laws. In addition, California Government Code Section 36901 specifically provides that the city may impose civil fines, penalties and forfeitures for violations of city ordinances. Further, California Government Code Section 53069.4 expressly authorizes the city to establish an administrative citation program for violations of city ordinances.
C. The council further finds that certain violations of the code may be of such a nature, or the administrative citation may be ineffective in ensuring compliance with the municipal code, that existing enforcement mechanisms may have to be utilized. These methods include, but are not necessarily limited to, the use of a criminal citation or complaint, or civil injunction. Therefore, nothing in this chapter is intended to preclude the city’s use of alternative code enforcement methods. (Ord. 18-01 §2(part), 2018).
1.18.020 General enforcement authority--Enforcement officers.
The city manager or any of his or her designated enforcing officers as set forth in this code have the authority and powers necessary to gain compliance with the provisions of the code and applicable laws. The term "enforcement officers" includes any city employee vested with authority to enforce the code. These powers include the power to inspect public and private property and use whatever judicial and administrative remedies are available under the code or applicable laws. (Ord. 18-01 §2(part), 2018).
1.18.030 Authority to inspect.
Any enforcement officer shall also have authority to enter upon any property or premises to ascertain whether provisions of the Kerman Municipal Code or applicable state codes, regulations, or ordinances are being obeyed, and to make examinations and surveys as may be necessary in the performance of their duties. These may include taking photographs, video, samples, or other physical evidence. All inspections, entries, examinations, and surveys shall be done in a reasonable manner and where entry onto the premises is necessary with the consent of the owner, agent, or occupant. If an owner, occupant, or agent refuses permission to enter or inspect, the enforcement officer may seek an inspection warrant pursuant to the procedures provided for in Code of Civil Procedure Sections 1822.50 through 1822.59 or their successors to perform duties imposed upon said person. (Ord. 18-01 §2(part), 2018).
1.18.040 General provisions regarding code violations.
A. Misdemeanor. Under Government Code Section 36900, and this code, a violation of a city ordinance is a misdemeanor punishable by a fine of not exceeding one thousand dollars or by imprisonment in the Fresno County jail for a period of not more than six months, or by both such fine and imprisonment.
B. Infraction. Any person violating any of the provisions or failing to comply with any of the requirements of this code shall be guilty of a misdemeanor unless a code provision makes violation thereof an infraction; or the city attorney files a complaint charging the offense as an infraction; or the court, with the consent of the defendant, determines that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint.
Any infraction under the provisions of this code shall be punishable by a fine not exceeding one hundred dollars for a first violation; a fine not exceeding two hundred dollars for a second violation of the same provision within one year of the date of the first violation; a fine not exceeding five hundred dollars for each additional violation of the same provision within one year of the date of the violation.
Except as otherwise provided by law, all provisions of law or ordinance relating to misdemeanors shall apply to infractions.
C. Administrative Citation. The city, at its discretion, may issue an administrative citation and civil penalty in lieu of charging any violation of the code as a misdemeanor or an infraction. The enforcement of those civil penalties shall be governed by the civil administrative citation procedures set forth in this chapter or as more specifically provided in other provisions of the Code.
D. Notice and Order Process. The city may utilize any of the procedures set forth in this chapter as well as the notice and order process set forth in Chapter 8.32 or in any state law provision.
E. Separate Offense. Each person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this code is committed, continued, or permitted by such person and may be punished accordingly.
F. City Attorney Authority. In all cases where the same offense is made punishable or is created by different clauses or sections of this code, the city attorney may elect under which to proceed; but not more than one recovery shall be had against the same person for the same offense.
The city attorney has discretion to institute the appropriate civil action to ensure compliance with the Kerman Municipal Code, including but not limited to an action for a temporary restraining order, a preliminary or permanent injunction, and an action to recover damages incurred as a result of any code violation. (Ord. 18-01 §2(part), 2018).
1.18.050 Administrative citations and fines.
The city council finds that there is a need for an alternative method of enforcement of violations of the municipal code. The city council further finds and declares that an appropriate method for enforcement for violations of the code is the following administrative citation and civil penalty program.
A. Administrative Citation. Any person violating any provision of the code may be issued an administrative citation by an enforcement officer as provided in this chapter. A separate civil fine for each violation of the code may be assessed by means of one administrative citation. The city is authorized under Government Code Sections 36901 and 53069.4 and this code to recover administrative fines and penalties by civil lawsuit.
B. Contents. Upon discovering or observing any violation of the municipal code, an enforcement officer may issue an administrative citation, in a form approved by the city manager and city attorney, to a violator or property owner, with the following contents:
1. Date and location of the violation(s), including the street address, if any, and the approximate time the violation(s) were observed;
2. Section(s) of the code violated and brief description of how the section(s) are violated;
3. Description of the action required to correct the violation(s), if applicable; and if applicable, the date by which the violation must be corrected;
4. Statement explaining the consequences of failure to correct the violation(s);
5. Amount of penalty imposed for the violation(s);
6. Explanation of how the penalty shall be paid and the time period by which it shall be paid, and the consequences of failure to pay the penalty;
7. Right to appeal, including the name and address of the city manager for purposes of filing any notice of appeal; and
8. Signature of the enforcement officer.
C. Issuance. Upon discovering or observing a code violation, the enforcement officer shall determine the party responsible for the violation. If a business, the responsible person shall be deemed the person who is in immediate control of the business on site that day. The enforcement officer may also determine that the owner of the business is the responsible party. The enforcement officer shall attempt to issue the citation to the responsible party for any violation of this code. The citation officer shall attempt to obtain the signature of the person upon whom the citation was issued. If the responsible party refuses to sign the citation, the enforcement officer may either leave the citation with the responsible party or mail the citation to the responsible party by certified and first class mail to the responsible party’s business address, principal place of business address, residence address or other address known to the enforcement officer by reliable information.
The failure of any person to receive an administrative citation shall not affect the validity of any proceedings taken under this chapter. Notice shall be effective on the date the citation is received if personally served, or the date mailed if the citation was sent by certified mail.
D. Issuance When Unable to Locate Violator. If the enforcement officer is unable to locate the violator(s), then the administrative citation shall be mailed to the responsible party and property owner, if different than the responsible party. Proof of service shall be documented at the time of service by a declaration under penalty of perjury executed by the person effecting service, declaring the time and manner in which the service was made. All other administrative citations shall be mailed to the violator(s) or property owner(s) by certified and first class mail. The failure of any person with an interest in the property to receive such notice shall not affect the validity of any proceedings taken under this chapter. Notice by the methods described above shall become effective on the date of mailing.
E. Exceptions to Administrative Citation. An administrative citation issued for a continuing violation of a building, plumbing, electrical or other structural or zoning regulation, that does not create an immediate danger to public health or safety, may not be issued until the responsible party has been given a reasonable period of time by the city to correct the violation through a notice of violation, notice and order or other type of corrective notice in accordance with Chapter 8.32 of this code.
F. Appeal. Any person issued an administrative citation may contest the contents of the administrative citation by filing an appeal under the city’s administrative hearing procedures ordinance set forth in Chapter 1.28 of this code. If no appeal is filed within the time prescribed, the penalty shall be final and immediately payable.
G. Amount of Administrative Fine (Penalty). Except as otherwise set forth in this code, or by a city fee resolution, the city council establishes the following base schedule for determining the amount of the civil penalty to be assessed for each code violation specified in the administrative citation.
1. First violation within a rolling twelve-month period, one hundred dollars;
2. Second occurrence of the same violation within a rolling twelve-month period, two hundred fifty dollars;
3. Third or subsequent occurrence of the same violation within a rolling twelve-month period, five hundred dollars.
H. Failure to Correct. If the violator or property owner fails to correct the violation, subsequent administrative citations and penalties may be issued for the same violation(s) or the city may institute any other applicable action permissible under this code to gain compliance. The amount of the penalty for each subsequent violation of the same code provision shall increase at a rate specified in this chapter.
I. Payment of Fine Without Correction of Violation. Payment of any penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city.
J. Collection of Penalty. The city shall collect delinquent fees under the provisions of the cost and penalty recovery ordinance and penalties in Chapter 1.20 of this code.
K. Authority to Issue Administrative Citation. The following officers and employees have the authority to issue administrative citations and civil penalties: city manager, building official, public works director, police chief and any other person delegated such authority by the city manager.
L. Payment of Penalty and Use of Proceeds. Except as otherwise provided, all civil penalties assessed shall be payable to the city. (Ord. 18-01 §2(part), 2018).
1.18.070 Criminal citations.
A. The provisions of Penal Code Part 2, Title 3, Chapter 5c, as amended, shall govern the procedures required for criminal enforcement of the Kerman Municipal Code.
B. Criminal Citation Officer. When in this code, or in any other ordinance of the city, an officer or employee of the city is empowered to enforce, or charged with the duty of enforcing, any particular provision or provisions of this code or of any other ordinance of the city, the violation of which provision or provisions would constitute a misdemeanor or infraction, the officer or employee so empowered, or so charged with such duty, shall have the authority to issue criminal citations as set forth in this section for the purpose of enforcing this code. Such public officer or employee shall be deemed a criminal citation officer and shall have all the powers and protection, as conferred pursuant to California Penal Code Section 836.5.
C. Training Requirements for Criminal Citation Officers. Before a criminal citation officer may exercise criminal citation authority pursuant to this section, that officer or employee must complete an enforcement training program established at the discretion of the chief of the Kerman police. The training program shall be designed to instruct officers and employees regarding:
1. The provisions of this Code to be enforced;
2. The evidentiary prerequisites to proper prosecution for violations thereof;
3. The procedural requirements of citations, including completion of the forms, processing and amendment of citation forms; and
4. The limitations attendant thereto.
D. Notice to Appear. Citation officers vested with criminal citation authority pursuant to this section may, pursuant to California Penal Code Sections 836.5, 853.5 and 853.6, issue a citation in the form of a notice to appear to a person where any such citation officer has probable cause to believe that the person to be issued the citation has violated a provision of this code in the citation officer’s presence, which the citation officer had the discretionary duty to enforce, and therefore, has committed a misdemeanor or infraction.
E. Release on Written Promise to Appear. A criminal citation officer exercising the authority pursuant to this section may release the person to be issued a citation on his or her written promise to appear in court. The citation officer shall under no circumstances take the person to be issued a citation into custody.
F. Refusal to Sign. In the event that the person to be issued a citation refuses to provide his or her written promise to appear in court, a citation officer may summon a Kerman police department peace officer and request that such peace officer take the person into custody. If the person demands to be taken before a magistrate, the citation officer may summon a Kerman city police officer and request that such peace officer take the person into custody, or seek assistance of the city attorney and request that a complaint be prepared and filed against that person.
G. Filing and Maintenance of Files. Criminal citation officers having a duty to enforce the provisions of this code, and who exercise the authority to issue a citation pursuant to this section, shall maintain a file of executed citations and such citations shall be forwarded to the city attorney’s office for issuance of a complaint and filing with the appropriate magistrate.
H. Additional Authority. Nothing in this section shall be considered to limit any authority otherwise vested in the named officers and employees, provided elsewhere in this code, or by state law.
I. Failure to Appear as Misdemeanor. Any person willfully violating his or her written promise to appear in court is guilty of a misdemeanor regardless of the disposition of the charge upon which the person was originally arrested.
J. Police Chief Powers. The police chief and all peace officers employed by the police department are hereby empowered to enforce, and are charged with the duty of enforcing, any and all provisions of this code or of any other ordinance of the city, including the power to arrest for such violations in accordance with the laws of the state of California, together with such other powers as are conferred upon them by the city. The police chief may authorize employees of the police department, excepting employees whose duties do not fall within the scope of law enforcement services, to enforce any and all provisions of the statutes of the state of California, of this code, or of any other ordinance of the city where the violation of such provision or provisions would constitute an infraction, including the power to cite for such violations in accordance with the laws of the state of California. The chief of police may also authorize said employees to regulate traffic at the scenes of accidents or disasters or at such locations as may require traffic direction for orderly traffic flow, and to remove vehicles from highways, public property, and private property, when authorized by state law or local ordinance. (Ord. 18-01 §2(part), 2018).
1.18.080 Issuance of permits--Violations of law.
When in this code, or in any other ordinance of the city, an officer or employee of the city is empowered and has the duty to issue a regulatory permit, and the officer or employee has reason to believe that the applicant is engaged in, or has on his premises a violation of law, ordinance, or city regulation, and exercise of the permit will propagate, encourage, or perpetuate the violation, then the officer or employee, with the approval of the city attorney, may refuse to issue the permit until such time that it is established that the violation has been abated or does not exist, provided that the officer or employee may, with the permission of the city attorney, issue the permit upon conditions reasonably calculated to eliminate the violation and in such case the permit may be revoked upon failure to perform or conform to the condition. (Ord. 18-01 §2(part), 2018).
1.18.090 Adjudicatory decisions.
The provisions of California Code of Civil Procedure Section 1094.6 shall be applicable to all adjudicatory decisions of the council, any board or commission established pursuant to this code, and any hearing officer pursuant to the administrative hearing ordinance in this code. (Ord. 18-01 §2(part), 2018).
1.18.100 Severability.
If any section, subsection, phrase, or clause of this chapter is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this chapter. The city council hereby declares that it would have adopted this chapter and each section, subsection, phrase, or clause thereof irrespective of the fact that any one or more sections, subsections, phrases, or clauses be declared invalid. (Ord. 18-01 §2(part), 2018).