Berkeley Municipal Code Ch. 1.28 Administrative Citations

A. This chapter provides for administrative citations as provided in Government Code Section 53069.4.

B. The remedies provided by this chapter are in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code.

C. Use of this chapter shall be at the sole discretion of the City. (Ord. 6710-NS § 2, 2002)

A. For purposes of this chapter, "enforcement officer" shall mean any City employee or agent of the City with the authority to enforce any provision of this code.

B. Enforcement officers shall have authority to issue administrative citations pursuant to this chapter. (Ord. 6710-NS § 2, 2002)

A. Whenever an enforcement officer charged with the enforcement of any provision of this code determines that a violation of that provision has occurred, the enforcement officer may issue an administrative citation to any person responsible for the violation.

B. Each administrative citation shall contain the following information:

1. The date of the violation;

2. The address or a definite description of the location where the violation occurred;

3. The section of this code violated and a description of the violation;

4. The amount of the fine for the code violation;

5. A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;

6. An order prohibiting the continuation or repeated occurrence of the code violation described in the administrative citation;

7. An order to correct the code violation described in the administrative citation if said violation is correctable as described in Section 1.20.030;

8. A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained and an advance deposit waiver; and

9. The name and signature of the citing enforcement officer.

C. In addition to the administrative citation and penalty authorized by this chapter, an order to correct a violation under subdivision B.7 of this section may be enforced as set forth in the chapter applicable to that violation.

D.

1. In cases involving a continuing violation pertaining to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety, a reasonable time not to exceed six months shall be provided to remedy or correct the violation prior to imposition of fines or penalties. In determining what is a reasonable time, the City may consider the estimate of local professionals including licensed contractors. In the case of such violations, the time within which the violation must be corrected in order to avoid a fine shall also be specified on the administrative citation.

2. In cases where a citation is based solely on a person’s failure to have obtained a permit or license from the City other than for a regulated business activity, and the person has not previously been cited for the same violation, the citation shall specify a reasonable time to obtain the permit or license, and the penalty shall not exceed $50.00 if the cited person shows proof of correction to the enforcing officer within the time established for obtaining the permit or license. This subdivision shall apply to violations of Title 23 only at the option of the enforcement officer. (Ord. 6836-NS § 1 (part), 2005; Ord. 6710-NS § 2, 2002)

A. The amounts of the fines for code violations imposed pursuant to this chapter shall be set forth in the schedule of fines established by resolution of the City Council.

B. The schedule of fines shall specify any increased fines for repeat violations of the same code provision by the same person within 36 months from the date of an administrative citation.

C. The schedule of fines shall specify the amount of any late payment charges imposed for the payment of a fine after its due date. (Ord. 6710-NS § 2, 2002)

A. The fine shall be paid to the City within 30 days from the date of the administrative citation.

B. Payment of a fine under this chapter shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative citation. (Ord. 6710-NS § 2, 2002)

A. Any recipient of an administrative citation may contest the existence of a violation of the code, that they are the responsible party or any order issued under Section 1.28.030.B by completing a request for hearing form and returning it to the City within 21 days from the date of the administrative citation, together with an advance deposit of the fine or notice that a request for an advance deposit hardship waiver has been filed pursuant to Section 1.28.070.

B. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

C. If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, a copy of this report also shall be served on the person requesting the hearing at least five days prior to the date of the hearing. (Ord. 6836-NS § 2 (part), 2005; Ord. 6710-NS § 2, 2002)

A. Any person who intends to request a hearing under Section 1.28.060 and who is financially unable to make the advance deposit of the fine as required in Section may file a request for an advance deposit hardship waiver.

B. The request shall be filed with the City on an advance deposit hardship waiver application form within ten days of the date of the administrative citation.

C. The requirement of depositing the full amount of the fine as described in Section 1.28.060.A shall be stayed unless or until the City makes a determination not to grant the advance deposit hardship waiver.

D. The City may grant the advance deposit hardship waiver only if the cited party submits a sworn declaration, together with any supporting documents or materials, which demonstrates their financial inability to deposit with the City the full amount of the fine in advance of the hearing.

E. If the City determines not to issue an advance deposit hardship waiver, the cited party shall remit the deposit to the City within ten days of the date of that decision or 30 days from the date of the administrative citation, whichever is later.

F. The City shall issue a written determination of its reasons for granting or denying an advance deposit hardship waiver. This written determination shall be final.

G. The written determination shall be served upon the applicant for the advance deposit hardship waiver by first class mail. (Ord. 6710-NS § 2, 2002)

The City Manager shall designate the hearing officer for administrative citation hearings. (Ord. 6710-NS § 2, 2002)

A. No hearing to contest an administrative citation before a hearing officer shall be held unless the fine has been deposited in advance in accordance with Section 1.28.060 or an advance deposit hardship waiver has been granted in accordance with Section 1.28.070.

B. A hearing before the hearing officer shall be set for a date that is not less than 15 days and not more than 30 days from the date that the request for hearing is filed in accordance with the provisions of this chapter.

C. At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation.

D. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative remedies and consent to any order issued pursuant to Section 1.28.030.B.6 and B.7.

E. The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. If the party contesting the citation presents evidence to the contrary, the burden of proof shall shift to the enforcement officer.

F. The hearing officer may continue the hearing and request additional information from the enforcement officer or the recipient of the administrative citation prior to issuing a written decision. (Ord. 6836-NS § 3 (part), 2005; Ord. 6710-NS § 2, 2002)

A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold, reduce or cancel the administrative citation and shall list in the decision the reasons for that decision. The decision of the hearing officer shall be final.

B. If the hearing officer determines that the administrative citation should be upheld, then the fine amount on deposit with the City shall be retained by the City.

C. 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 forth in the decision a payment schedule for the fine.

D. If the hearing officer determines that the administrative citation should be canceled or reduced and the fine was deposited with the City, then the City shall promptly refund the amount of the deposited fine or the amount paid in excess of the reduced fine, together with interest at the average rate earned on the City’s portfolio for the period of time that the fine or excess fine amount was held by the City.

E. The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision.

F. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount or number of administrative citation fines upheld by the hearing officer. (Ord. 6710-NS § 2, 2002)

Any person who fails to pay to the City any fine imposed pursuant to the provisions of this chapter on or before the date that fine is due also shall be liable for the payment of any applicable late payment charges set forth in the schedule of fines, as well as interest at the legal rate. (Ord. 6710-NS § 2, 2002)

The City may collect any past due administrative citation fine or late payment charge by use of all available legal means, including, but not limited to, means available for the collection of judgments, liens and actions for recovery of money. The City also may recover its collection costs. (Ord. 6710-NS § 2, 2002)

A. Any person aggrieved by an administrative decision of a hearing officer on an administrative citation may obtain review of the administrative decision by filing a petition seeking review in accordance with Government Code Section 53069.4.

B. The City is prohibited from seeking review of an administrative decision of a hearing officer on an administrative citation pursuant to Government Code Section 53069.4.

C. No administrative decision of a hearing officer on an administrative citation shall estop the City Council or any other board or commission or officer or employee of the City from exercising their independent authority and judgment in any other forum within or outside the City. (Ord. 7081-NS § 1, 2009; Ord. 6710-NS § 2, 2002)

A. Whenever a notice or report is required to be given or provided under this chapter, unless different provisions herein are otherwise specifically made, such notice may be given either by personal delivery thereof to the person to be notified or by deposit in the United States Mail, in a sealed envelope postage prepaid, addressed to such person to be notified at their last-known business or residence address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in a U.S. mail box.

B. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.

C. Proof of giving any notice may be made by the certificate of any officer or employee of the City, or by affidavit of any person over the age of 18 years, which shows service in conformity with this code or other provisions of law applicable to the subject matter concerned. (Ord. 6710-NS § 2, 2002)