Chapter 17.40
ENFORCEMENT AND PENALTIES

Sections:

17.40.010    Purpose.

17.40.020    Authority.

17.40.030    Voluntary correction.

17.40.040    Notice of civil infraction.

17.40.050    Court action.

17.40.060    Abatement by administrator.

17.40.070    Abatement of immediate threat.

17.40.080    Other enforcement provisions and conflicts.

17.40.010 Purpose.

The purpose of this section is to establish an efficient system to enforce the provisions of the UDC to provide for prompt hearing and resolution of alleged violations of these regulations and to establish penalties, including abatement. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.020 Authority.

The administrator, the city attorney, the chief of police, or his/her designee, has authority to secure voluntary correction agreements, issue notices of civil infraction, and conduct abatements under this section. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.030 Voluntary correction.

A.    The administrator shall attempt to secure voluntary correction by the person responsible for the violation before issuing any notice of civil infraction through the use of a voluntary correction agreement.

B.    A voluntary correction agreement shall include the following information:

1.    The name and address of the person responsible for the violation;

2.    The street address or other description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;

3.    A description of the violation and a reference to the regulation that has been violated;

4.    The necessary corrective action to be taken, and a date or time by which correction must be completed;

5.    An agreement by the person responsible for the violation that the city may inspect the premises as may be necessary to determine compliance with the voluntary correction agreement;

6.    An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses (including attorney fees, expert witness fees, and court costs) and/or a monetary penalty pursuant to this chapter from the person responsible for the violation if the terms of the voluntary correction agreement are not satisfied; and

7.    An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to a hearing before the court under this section, regarding the matter of the violation and/or the required corrective action.

C.    Upon entering into a voluntary correction agreement, the person responsible for the violation shall have no right to a hearing before the court under the UDC or otherwise, regarding the matter of the violation and/or the required corrective action.

D.    The administrator may grant an extension of the time limit for correction or a modification of the required corrective action if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation, but unforeseen circumstances delay correction under the original conditions.

E.    The city may abate the violation if the person fails to meet the terms of the voluntary correction agreement.

F.    If the terms of the voluntary correction agreement are not met, the city shall assess the person responsible for the violation a monetary penalty commencing on the date set for correction and thereafter, plus all costs and expenses of abatement.

F.    The monetary penalty for each violation per day or portion thereof shall be five hundred dollars. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.040 Notice of civil infraction.

A.    When the administrator determines that a violation has occurred or is occurring, and is unable to secure voluntary correction, pursuant to Section 17.40.030, the administrator may issue a notice of civil infraction to the person responsible for the violation.

B.    The administrator may issue a notice of civil infraction without having attempted to secure voluntary correction as provided in Section 17.40.030 under the following circumstances:

1.    When an emergency exists;

2.    When a repeat violation occurs;

3.    When the violation creates a situation or condition which cannot be corrected; or

4.    The administrator cannot contact the person or the person refuses to communicate or cooperate with the city in correcting the violation.

C.    The notice of civil infraction shall include the following:

1.    The name and address of the person responsible for that violation;

2.    The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring;

3.    A description of the violation and a reference to the provision(s) of the city regulation(s) that has been violated;

4.    The required corrective action and a date and time by which the correction must be completed after which the city may abate the unlawful condition;

5.    The date, time and location of an appeal hearing before a judge, judge pro tem, or commissioner of the municipal court which will be at least twenty days but no more than sixty days from the date the notice of civil infraction is issued, unless such date is continued by the court for good cause shown;

6.    A statement indicating that the hearing will be canceled and no monetary penalty will be assessed, other than the court filing fee, if the administrator approves the completed, required corrective action prior to the hearing; and

7.    A statement that the costs and expenses of abatement incurred by the city and a monetary penalty in an amount per day for each violation may be assessed against the person to whom the notice of civil infraction is directed as specified and ordered by the court.

D.    The administrator shall serve the notice of civil infraction upon the person responsible for the violation, either personally or by mailing a copy of the notice of civil infraction by certified or registered mail, return receipt requested, to such person at their last known address. If the administrator cannot contact the person responsible for the violation personally, or if the administrator cannot ascertain an address for mailed service, the administrator shall serve notice by posting a copy of the notice of civil infraction conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person affecting the service, declaring the time and date of service, the manner by which the service was made and, if by posting, the facts showing the attempts to serve the person personally or by mail.

E.    The administrator, or by order of the court, may grant extensions of the time specified in the notice of civil infraction for correction of the violation.

F.    The monetary penalty for each violation per day or portion thereof shall be five hundred dollars.

G.    Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil infraction was issued of the duty to correct the violation.

H.    The monetary penalty constitutes a personal obligation of the person to whom the notice of civil infraction is directed. Any monetary penalty assessed must be paid to. the city within ten calendar days from the date of mailing of the court’s decision or a notice from the city that penalties are due. Any such monetary penalty shall further constitute a lien against the affected real property. The city attorney is authorized to take appropriate action to collect the monetary penalty. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.050 Court action.

A person issued a notice of civil infraction by the administrator shall appear before the court not less than twenty days nor more than sixty days after issuance of the notice of civil infraction. The administrator or the court may grant continuances for good cause shown.

A.    The administrator may cancel the hearing and assess no monetary penalty, other than the court filing fee, if the administrator approves the completed required corrective action before the scheduled hearing.

B.    The court shall conduct a hearing on the civil infraction pursuant to the then-current applicable rules of civil procedure for courts of limited jurisdiction. The administrator and the person to whom the notice of civil infraction was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable under the circumstances. The court shall accord substantial weight to the determination of the administrator as to reasonableness of the need for the required corrective action.

C.    The court shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable under the circumstances, and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions. The court shall issue an order to the person responsible for the violation that contains the following information:

1.    The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;

2.    The required corrective action;

3.    The completion date and time for correcting the violation;

4.    The monetary penalties assessed; and

5.    The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.

D.    The court shall have the following options in assessing monetary penalties:

1.    Assess monetary penalties beginning on the date the notice of civil infraction was issued and thereafter;

2.    Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the court and thereafter;

3.    Assess less than the established monetary penalty set forth; or

4.    Assess no monetary penalties.

E.    In determining the monetary penalty assessment, the court shall consider the following factors:

1.    Whether the person responded to staff attempts to contact the person, and cooperated to correct the violation;

2.    Whether the person failed to appear at the hearing;

3.    Whether the violation was a repeat violation;

4.    Whether the person showed due diligence and/or substantial progress in correcting the violation;

5.    Whether a genuine, "close call" code interpretation issue exists; and

6.    Any other relevant factors.

F.    If the person to whom the notice of civil infraction was issued fails to appear without lawful excuse at the scheduled hearing, the court will enter an order with findings and assess the appropriate monetary penalty. The city may enforce the court’s order and recover all related expenses, including attorney fees, plus the costs of the hearing and any monetary penalty from that person. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.060 Abatement by administrator.

The administrator may abate a condition that was caused or continues to be a civil infraction when the terms of voluntary correction agreement pursuant to Section 17.40.030 have not been met, or a notice of civil infraction has been issued pursuant to Section 17.40.040 and a hearing has been held pursuant to Section 17.40.050 and the required correction has not occurred as specified in the court’s order. In such cases, the following abatement provisions shall apply:

A.    Using any lawful means, the city may enter upon the subject property and may remove or correct the condition that is subject to abatement. The city may seek such judicial process as necessary to remove or correct the condition.

B.    The city shall bill all costs for correcting the violation to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or control of the property. The bill shall become due and payable to the city within ten calendar days. In addition, the city may bill the person responsible for the violation all incidental expenses including, but is not limited to: personnel costs, both direct and indirect and including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing. All such costs and expenses shall constitute a lien against the affected property.

C.    Any person who knowingly obstructs, impedes, or interferes with the city or its agents, or with the person responsible for the violation in the performance of duties imposed by this section, shall be guilty of a misdemeanor punishable by imprisonment not exceeding ninety days and a fine not exceeding one thousand dollars.

D.    The city council may impose a lien for any monetary penalty, the cost of any abatement proceedings under this section, and all other related costs including attorney and expert witness fees, against the real property on which the monetary penalty or any of the work of abatement was performed. The lien shall be subordinate to all previously existing special assessment liens imposed on the same property and shall be superior to all other liens, except for state and county taxes, with which it shall be on a parity. The procedures for imposing such lien are as follows:

1.    The city council shall instruct the administrator to cause a claim for lien to be filed for record within ninety days from the later of the date that the monetary penalty is due or the date the work is completed or the nuisance abated.

2.    The claim of lien shall contain sufficient information regarding the notice of civil infraction, as determined by the applicable department director, a description of the property to be charged with the lien and the owner of record, and the total amount of the lien.

3.    Any such claim of lien shall be verified by the administrator, and may be amended from time to time to reflect changed conditions.

4.    No such liens shall bind the affected property for a period longer than five years, without foreclosure or extension agreed to by the property owner. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.070 Abatement of immediate threat.

Whenever any nuisance causes a condition, the continued existence of which constitutes an immediate threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. The administrator shall give notice of such abatement, including the reason, to the person responsible for the violation as soon as reasonably possible after the abatement. No right of action shall lie against the city or its agents, officers, or employees for actions reasonably taken to prevent or cure any such immediate threats, but neither shall the city be entitled to recover any costs incurred for summary abatement, prior to the time that actual notice of same is provided to the person responsible for the violation. (Ord. 1047 §§2(part), 3(part), 2004).

17.40.080 Other enforcement provisions and conflicts.

A.    The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Elma Municipal Code except as precluded by law.

B.    In the event of a conflict between this chapter and any other provision of the Elma Municipal Code, this chapter shall control. (Ord. 1047 §§2(part), 3(part), 2004).