Chapter 1.09
ADMINISTRATIVE CITATIONS
Sections:
1.09.040 Procedures – General.
1.09.050 Procedures – Issuance of administrative citation(s).
1.09.060 Procedure – Contents of citation.
1.09.070 Procedure – Appeal of administrative citation.
1.09.080 Procedure – Appeal hearing.
1.09.010 Title.
This chapter shall be known as the Administrative Citations Ordinance of the Malaga County Water District.
1.09.020 Purpose.
A. This chapter is adopted to protect the health, safety and welfare of the citizens of the Malaga County Water District and to provide a method to penalize responsible parties who fail or refuse to comply with certain provisions of the Malaga County Water District Code; to minimize the expense and delay of enforcement of the Malaga County Water District Code by criminal citation; and to allow the District to recover costs associated with the enforcement process, while continuing to give persons who have been issued citations due process.
1.09.030 Authority.
Cal. Gov’t Code § 53069.4 authorizes a local agency to enact by ordinance an administrative procedure to govern the imposition, enforcement, collection, and administrative review of administrative fines or penalties issued for violation of an ordinance.
1.09.040 Procedures – General.
A. Any person violating any provision of the Malaga County Water District Code may be issued an administrative citation by an enforcement officer as provided for by this chapter.
B. Each and every day a violation of any provision of the code exists will constitute a separate and distinct offense.
C. Each section of the code violated on any day shall constitute a separate and distinct violation.
D. A fine for violations of the code may be assessed by means of an administrative citation issued by the enforcement officer and shall be payable directly to the District.
E. The amount of fine for a violation of the code shall be determined by resolution of the Board of Directors of the Malaga County Water District and may be amended, from time to time, by resolution of the Board of Directors of the Malaga County Water District.
F. Administrative fines assessed by means of an administrative citation shall be collected by the procedures specified in this chapter.
1.09.050 Procedures – Issuance of administrative citation(s).
A. Upon discovering or observing any violation of the Malaga Code, the enforcement officer shall determine the party responsible for the violation. If a business or other entity, the responsible party shall be deemed to be the person who is in immediate control of the business or site on that day. The enforcement officer may also determine that the owner(s) or officer(s) of the business or property or entity are the responsible party.
B. Determination of an Automatic Violation.
1. Any violation defined by the Malaga Code or the schedule of penalties as an automatic violation; or
2. Violations that create an immediate danger to the public health, safety, and welfare, as determined by the enforcement officer, and for which immediate correction is required; or
3. Repeat or chronic violations where either formal or informal notice of the violation, and previous reasonable opportunities to correct, have been provided, as determined by the enforcement officer or General Manager, or his or her designee; or
4. Noncontinuing violations for which it is not possible or practical to provide prior notice and an opportunity to correct.
C. Issuance of Notice to Correct.
1. Except as provided in subsection (B) of this section, the enforcement officer may issue a written notice to the responsible party of the violation. Said notice need not be in any particular form, but shall include:
a. The date of the violation;
b. The address or a description of the location where the violation occurred;
c. A description of the nature of the Malaga Code violation, including identifying the Malaga Code section(s) violated;
d. Identify what action is necessary to correct the violation;
e. Provide the responsible party with not less than 10 days to correct the violation, unless (i) a lesser time is specified elsewhere in the Malaga Code for correcting the violation(s); or (ii) the enforcement officer determines that a lesser time is necessary to protect the public health, safety, or welfare of the citizens of the District; and
f. An explanation of the consequences of a failure to correct the violation.
D. Notice.
1. The enforcement officer may attempt to locate the responsible party at the location of the violation during regular business hours if a business, or at any reasonable time if not a business. If the enforcement officer is able to locate the responsible party, the enforcement officer shall attempt to obtain the signature of that person on the administrative citation. If that person refuses to or does not sign the administrative citation, the lack of signature shall in no way affect the validity of the citation and subsequent proceedings. 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 in accordance with subsections (D)(2) and (D)(3) of this section.
2. For property related violations, the enforcement officer may securely post the citation in a conspicuous place on the property and mail a copy of the citation to the responsible party by first-class mail within five days of posting 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.
3. In lieu of personally serving the responsible party, if the violation is at a business, the enforcement officer may leave a copy of the citation with a person who is apparently in charge at the place of business and thereafter mailing, by first-class postage, a copy of the citation to the responsible party at the address where the copy was left, or by leaving a copy at the responsible party’s dwelling or usual place of abode, in the presence of a competent member of the household over the age of 18, and thereafter mailing, by first-class mail, to the address where the copy was left.
E. If after the expiration of the time period provided to the responsible party to correct the violation, the responsible party has not corrected the violation, the enforcement officer may issue an administrative citation to the responsible party by any method defined in this section.
F. The notice provided pursuant to subsection (C) of this section shall be sufficient notice for subsequent violations of the same code section occurring within one year of the notice even if the violation occurs at a different location, and the enforcement officer may proceed directly to issuing an administrative citation for future violations of the same code section occurring within one year of the notice to the same responsible party even if the violation occurs at a different location.
1.09.060 Procedure – Contents of citation.
The administrative citation shall be on a form approved by the General Manager, or his or her designee, and should include, where applicable, the following:
A. The name and address of the responsible party;
B. Date and location of the violation(s) and the approximate time the violation(s) were observed and/or discovered;
C. Section or sections of the Malaga Code violated and a description of how the section(s) are violated;
D. A description of the action required to correct the violation(s), if applicable;
E. Statements to require the responsible party to immediately correct the violation(s) and to explain the consequences of failure to correct the violation(s);
F. Amount of fine imposed for the violation(s);
G. Explanation of how the fine shall be paid and the time period by which it shall be paid, and the consequences of failure to pay the fine;
H. Rights of appeal;
I. Signature of the enforcement officer; and signature of the responsible party and/or the address where the citation is served, posted, or mailed.
1.09.070 Procedure – Appeal of administrative citation.
A. Any person receiving an administrative citation which carries a monetary penalty shall within 30 calendar days from the date of issue either pay the fine or file an appeal with the General Manager, or his or her designee. Fines may be paid at the District office. Warning citations may not be appealed.
B. A notice of appeal shall be in writing and shall identify the citation being appealed, specify basis for the appeal in sufficient detail so that a Hearing Officer can understand the grounds for the appeal, an address where further notices may be delivered to the responsible party by first-class mail and shall be accompanied by an advance deposit of the total penalty amount or an advance deposit hardship waiver application form as described in subsection (H) of this section. The notice of appeal must be received by the General Manager, or his or her designee, at the District office prior to the expiration of 30 calendar days from the date of the issuance of the citation.
C. If the deadline to file an appeal or pay a fine falls on a Saturday, Sunday, or District holiday, the deadline for filing an appeal or paying a fine shall be extended until the next regular business day.
D. If a Hearing Officer has not been previously appointed by resolution of the Board of Directors as soon as practicable after receiving a written notice of appeal, the Board Secretary shall place on the agenda of the Board of Directors the appointment of a Hearing Officer. The appointed Hearing Officer shall forthwith fix a date, time, and place for the hearing. Written notice of the time and place for the hearing shall be served at least 10 calendar days prior to the date of the hearing to the party appealing the citation by any one or more of the following means:
1. Personal service; or
2. First-class mail at the address specified in the notice of appeal, or if no address is specified, at such other address known to the General Manager, or his or her designee, by reliable information.
E. The failure of any person to receive such notice shall not affect the validity of any proceedings taken under this chapter. Service by normal first-class delivery mail in the manner described above in subsection (D) of this section shall be effective on the date of mailing.
F. Failure of any person to file an appeal in accordance with the provisions of this section shall constitute a waiver of that person’s rights to an administrative hearing and determination on the merits of the citation and the amount of the fine.
G. Failure by the responsible party to attend the administrative hearing shall constitute a waiver of his or her rights to an administrative hearing.
H. Any person who intends to appeal an administrative citation and is financially unable to make the advance deposit of the penalty as required in subsection (B) of this section may request an advance deposit hardship waiver by doing the following:
1. Completing an advance deposit hardship waiver application form available from the General Manager, or his or her designee, at the District office which shall be signed by the applicant under penalty of perjury;
2. The request shall be filed, along with the notice of appeal, with the General Manager, or his or her designee, within 30 days of the date of the administrative citation;
3. The General Manager, or his or her designee, may waive all or part of the requirements of an advance deposit and issue the advance deposit hardship waiver only if the sworn application together with any supporting documents or materials, demonstrating to the satisfaction of the General Manager, or his or her designee, the person’s actual financial inability to deposit with the District the full amount of the penalty in advance of the hearing. The General Manager, or his or her designee, in determining the responsible party’s financial ability or inability to deposit the full amount of the penalty in advance, may consider the amount of the penalty imposed, the income of the applicant, the expenses of the applicant and any other factors that are reasonably related to the applicant’s ability to deposit the full amount of the penalty;
4. If the General Manager, or his or her designee, makes a determination to deny all or part of the advance deposit hardship waiver, then a written determination listing the reasons for the denial shall be served by first-class mail to the address on the application. The written determination of the General Manager, or his or her designee, shall be final;
5. If all or part of the advance deposit hardship waiver is denied by the General Manager, or his or her designee, the applicant shall have 10 days from the date the written determination is mailed to make the advance deposit to the General Manager, or his or her designee. Failure to make the advance deposit in the amount determined by the General Manager, or his or her designee, within 10 days from the date the General Manager’s, or his or her designee’s, written determination was mailed will result in the notice of appeal being considered untimely filed. If the deadline to make the advance deposit falls on a Saturday, Sunday, or District holiday, the deadline for making the advance deposit shall be extended until the next regular business day. [Ord. 2014-2 §§ 3, 4, 5.]
1.09.080 Procedure – Appeal hearing.
A. The Hearing Officer shall conduct an informal and orderly proceeding. The technical rules of evidence shall not apply, except that irrelevant and unduly repetitious evidence shall be excluded. Evidence on which persons commonly would rely on in the conduct of their business affairs shall be accepted. All evidence shall be received only on oath or affirmation.
B. During the hearing, the General Manager, or his or her designee, and/or enforcement officer shall present information or testimony relating to the violation and the appropriate means of correcting the violation. The responsible party(ies), owner(s), or any other interested person(s) may present testimony or other evidence concerning the violation and the means and time frame necessary for correction.
C. Each party shall have the right to:
1. Call and examine witnesses on any matter relevant to the issues of the hearing;
2. Introduce documentary and physical evidence relevant to the issues of the hearing;
3. Cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
4. Impeach any witness regardless of which party first called the witness to testify;
5. Rebut the evidence;
6. Be represented by anyone who is lawfully permitted to do so; and
7. Provide an interpreter, at his or her own expense, to translate the proceeding, if the party is not proficient in the English language.
D. The Hearing Officer shall direct the order of the proceedings. The hearing shall be tape-recorded. The parties, at their sole expense, may have the hearing recorded by a certified shorthand reporter.
E. The Hearing Officer shall have the authority to grant continuances, from time to time, for good cause shown, upon request of the District, responsible party, or the Hearing Officer’s own motion.
F. If the violation is related to real property in the District, the Hearing Officer may, upon reasonable notice and consent, inspect the property prior to, during, or after the administrative hearing. The responsible party shall have the right to be present at the inspection.
G. The Hearing Officer may take official notice, either during the hearing, or after submission of the matter for decision, of any fact which may be judicially noticed by the courts of this state or of official records, regulations, rules, and decisions of state and local agencies, boards and departments and of city and county ordinances. In addition, the Hearing Officer may take official notice of matters in its own files and of prior proceedings under this chapter involving the same issues. If applicable, the Hearing Officer may also take official notice of any generally accepted technical or scientific matter within the Hearing Officer’s expertise. The Hearing Officer shall inform the parties at the hearing on the record, referred to therein, or appended thereto, of all matters to be noticed. Any such party shall be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by written or oral presentation of authority.
H. At the conclusion of the hearing, the Hearing Officer may sustain the citation, not sustain the citation, may reduce, waive, or conditionally reduce the fine stated in the citation. The Hearing Officer may also impose conditions and deadlines by which to correct the violation or pay any outstanding fine, or continue the hearing, as necessary.
I. The decision of the Hearing Officer shall be in writing and issued within 30 days of the conclusion of the hearing. The decision shall be served upon the responsible party in the manner as the notice of hearing was served on the responsible party and is effective upon the date of service. The decision of the hearing officer regarding any appeal is the final administrative order and decision. There are no appeals to the Board of Directors. Judicial review may be had only in accordance with the provisions of Cal. Gov’t Code § 53069.4. The decision shall contain a statement advising of the right to judicial review, and shall be substantially in the following form:
The decision of the Hearing Officer is the final decision of the District. You have the right to seek judicial review of the decision pursuant to and in accordance with Government Code § 53069.4 by filing an appeal with the Superior Court, County of Fresno. The time to file an appeal is within twenty (20) days after service of this final administrative decision. These are your only rights to judicial review. If you fail to file an appeal within the prescribed time, you may be barred from seeking judicial review.
J. The time to pay a fine following the Hearing Officer’s final administrative decision is 20 calendar days after service of the decision unless the Hearing Officer provides for a longer time.
1.09.090 Fines assessed.
A. The amounts of the fines to be assessed for Malaga Code violations pursuant to this chapter shall be set forth in a schedule of penalties established and revised from time to time by resolution of the Board of Directors. The schedule of penalties shall be maintained and made available to the public by the Secretary of the Board as part of the master fee schedule.
B. The schedule of penalties established by resolution shall specify whether a violation is an automatic violation.
C. The schedule of penalties established by resolution shall specify any increased penalties for repeat violations of the same code provision.
D. The payment of a fine or fines shall not excuse the failure to correct the violation nor shall it bar any further enforcement action by the District.
1.09.100 Collection of fines.
A. All fines assessed shall be payable to the Malaga County Water District.
B. The failure of any person to timely pay a fine assessed by administrative citation or final administrative decision shall result in an assessment of an additional late fee to be charged. The amount of a late fee shall be 10 percent of the total amount of the administrative fine owed.
C. The failure of any person to timely pay a fine assessed by administrative citation or final administrative decision constitutes a debt owed to the District. To enforce that debt, the General Manager, or his or her designee, may cause to be filed a claim with the small claims or other appropriate court.
D. The General Manager, or his or her designee, may also pursue any other legal remedy to collect such money owed, including, but not limited to, contracting for collection, or the imposition of an assessment lien as set forth below:
1. The General Manager, or his or her designee, may impose a special assessment against the property that is the subject of an administrative citation, if the administrative citation has been issued to a property owner for the amount of the fine, plus late fees, plus an administrative charge established by resolution of the Board of Directors to reimburse the District for costs of imposing the assessment; the assessment shall be imposed by the following procedures:
a. The Board of Directors shall confirm the amount to the assessment at a regularly scheduled meeting or at a special meeting.
b. The property owner and any holder of the mortgage or deed of trust of record shall be notified of the meeting to confirm the assessment in accordance with the notice requirement of this chapter.
c. After confirmation by the Board of Directors, the General Manager, or his or her designee, shall record a notice of lien in the office of the County Recorder. When so made, confirmed, and recorded, the confirmed amount shall constitute a lien on that property for the amount of the assessment.
d. After confirmation and recordation, a copy may be filed with the tax collector for the Malaga County Water District. The tax collector shall add the amount(s) of the respective assessment(s) to the next regular tax bill or bills levied against the property subject to the lien. Those amounts shall be collected at the same time and in the same manner as ordinary Malaga County Water District taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale in the cases of a delinquency as provided for with ordinary Malaga County Water District taxes. Or, after recording, the lien may be foreclosed by judicial or other sale in the matter and means provided by law. The notice of lien for recordation shall be in the form substantially as follows:
NOTICE OF LIEN
Pursuant to Title 1 Chapter 9 of the Malaga County Water District Code, the General Manager, or his or her designee, of the Malaga County Water District did on or about the ____ day of _____________, 20___, assess the cost of administrative fines and penalties on the real property hereinafter described; and the same has not been paid nor any part thereof and the Malaga County Water District does hereby claim a lien for such fines and penalties, in the amount of $________. Said amount shall be a lien upon the real property until it has been paid in full and Discharged of record.
The real property, upon which a lien is claimed, is that certain parcel of land in the Malaga County Water District, County of Fresno, State of California, more particularly described as follows:
_________________________________________________
_________________________________________________
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Dated this _____ day of ______________, 20___
MALAGA COUNTY WATER DISTRICT
By:_______________________________
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[Print Name and Title]
E. If the failure by any person to pay a fine assessed by administrative citation results in the filing of an action in any court of proper jurisdiction, to collect the fine, the Malaga County Water District shall be entitled to collect all costs, including reasonable attorney’s fees, associated with the filing of such actions.
F. The payment of a fine or fines shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the District.
1.09.110 Other remedies.
Nothing in this chapter precludes the Malaga County Water District from using any other available method to enforce the provisions of the Malaga Code, including administrative complaints issued pursuant to Cal. Gov’t Code §§ 54725 et seq. or other applicable statute or regulation.
1.09.120 Administration.
The General Manager, or his or her designee, may adopt any necessary guidelines, policies, or procedures to aid in the interpretation and enforcement of this chapter.
1.09.130 Severability.
If any section, subsection, sentence, clause, phrase or portion of this chapter or any part of the code adopted herein by reference is for any reason to be held invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions thereof.