Blue Lake Municipal Code Ch. 1.12 Administrative Penalties

A. The purpose of this chapter relating to administrative penalties is to provide alternative remedies to address acts or omissions set forth in Section 1.12.020. Violations may be corrected, abated, or addressed in a number of ways. It is the intent of this chapter to provide the City with additional remedies to correct violations and, where necessary, to penalize violators for failure to comply with City ordinances.

B. The City Council hereby finds and determines that enforcement of City ordinances and conditions on entitlement in City permits and agreements, are matters of local concern and serve important public purposes. Under the authority of and consistent with Government Code Section 53069.4, the City of Blue Lake adopts this administrative penalty provision in order to achieve the following goals:

1. To protect the public health, safety and welfare of the communities and citizens in the City of Blue Lake;

2. To provide for an administrative process that has objective criteria for the imposition of penalties and provides for a process to appeal the imposition of administrative penalties;

3. To provide a method to penalize responsible parties who fail or refuse to comply with provisions of City ordinances or conditions on entitlement in the City of Blue Lake; and

4. To minimize the expense and delay where the alternative remedy is to pursue responsible parties in the civil or criminal justice system.

C. The City Council hereby establishes an administrative penalty procedure provided in this chapter. All final administrative orders made pursuant to the procedures set forth in this chapter shall be subject to review only as provided in Government Code Section 53069.4.

A. Before the City Council or any other remedy set forth in ordinances of the City of Blue Lake, administrative penalties may be imposed for any of the following acts or omissions:

1. The creation or continuance of, or the refusal or failure to abate when requested, any nuisance in the City of Blue Lake as defined in Section 8.04.020.

2. The failure when requested to comply with any condition imposed by any entitlement, permit, contract, or environmental document issued or approved by the City of Blue Lake.

B. Nothing in this chapter shall prevent the City from using one or more other remedies to address violations, either in lieu of or in addition to administrative penalties.

C. When the violation upon which the administrative penalty is based pertains to building, plumbing, electrical, structural or zoning provisions, the responsible party shall be provided a reasonable period of time to correct the violation prior to imposition of the administrative penalty, except in those cases in which there is an immediate danger to health or safety. The reasonable period for purposes of this section shall be 30 days from service of any notice issued regarding the violation(s).

D. For the purposes of this chapter, the term responsible party shall refer to any person, business, company or entity, and the parent or legal guardian of any person under the age of 18 years, who has done any act or omission for which an administrative penalty may be imposed.

A. Where the City has determined that a responsible party has violated this chapter or any provision set forth in Section 1.12.020(A), the City may commence an administrative proceeding to impose administrative penalties. To commence such proceedings, the City Manager shall issue an order imposing administrative penalties. The order shall contain:

1. The name and address of the responsible party in violation. If the administrative penalty results from offense occurring on, or the status or condition of, property, the order shall also contain the address of the property;

2. A statement of the acts or conditions which violate City ordinances and the specific ordinances or provisions which have been violated;

3. The amount of the administrative penalty the City imposes for the violation;

4. A statement that the responsible party in violation may appeal the imposition of the administrative penalty within 30 days of the date the order is served;

5. A statement that if the responsible party fails to request an appeal of the imposition of the administrative penalty, the order imposing the penalty shall be final;

6. A statement that any responsible party upon whom an administrative penalty has been imposed may seek judicial review of the order imposing the penalty pursuant to Government Code Section 53069.4.

B. The administrative penalty order shall be served upon the responsible party in violation. The failure of the City Manager to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person(s) duly served or relieve any such person(s) from any duty or obligation imposed on him/her. If the City proposes to impose a lien on the property, one copy thereof shall also be served on each of the following if known to the City Manager or disclosed from official public records:

1. The holder of any mortgage or deed of trust of other lien or encumbrance of record; and

2. The owner or holder of any lease of record.

C. Service of an administrative penalty order may be made upon all persons entitled thereto either by personal delivery or by certified mail, return receipt requested. Service on any owner in violation is deemed completed when it is served to the address listed by the owner on the latest equalized assessment roll of Humboldt County, or as known to the City Manager. In lieu of personally serving the responsible party by personal delivery or certified mail, service of the administrative penalty order and any amended or supplemental order may be made as follows:

1. In the event that service by certified return receipt mail cannot be effected or the recipient cannot be personally served, service may be made by substituted service. Substituted service may be accomplished as follows:

a. By leaving a copy during usual business hours and the recipient's business with the person who is apparently in charge, and by thereafter mailing by first class mail a copy to the recipient at the address where the copy was left;

b. By leaving a copy at the recipient's dwelling or usual place of abode, in the presence of a competent member of the household, and thereafter mailing by first class mail a copy to the recipient at the address where the copy was left;

2. In the event the violation results from an event occurring on, or a condition existing on, property in the City and the recipient cannot be served by certified mail return receipt or cannot be personally served and has a property manager or rental agency overseeing the premises, substituted service may be made as set forth above in paragraph 1 of this subsection upon the property manager or rental agency;

3. If the responsible party resides or has his/her/its business address out of state and service cannot be effected by certified mail return receipt, then service may be made by first class mail;

4. Substitute service may be effected by posting the property with the administrative penalty order and mailing a copy of the order to the responsible party in violation, at the address of the property at which the violation has occurred or is occurring; and

5. If the responsible party in violation or other person entitled to service cannot be located or service cannot be effected as set forth in this section, service may be made by publication in a Humboldt County newspaper of general circulation which is most likely to give actual notice to the owner. Service shall be deemed sufficient when it is accomplished pursuant to Government Code Section 6063.

D. The failure of any person to receive the administrative penalty order shall not affect the validity of any proceedings taken under this section against any other responsible party. Service by certified mail in the manner herein provided shall be effected on the date of mailing.

A. The amount of the administrative penalty to be imposed shall be set by the City Manager. Each day a violation continues or occurs constitutes a separate violation. Administrative penalties may be imposed in any amount not less than $25.00 nor more than $5,000.00 per violation.

B. In determining the amount of the administrative penalty to be imposed, the City Manager shall consider factors including but not limited to:

1. The seriousness of the violation;

2. The number of complaints received;

3. The willfulness of the responsible party and their efforts to correct the violation;

4. The injury/damage, if any, suffered by any member of the public;

5. Any instances in which the responsible party has been in violation of the same or similar ordinance provisions in the previous three years;

6. The amount of administrative staff time which was expended in investigating or addressing the violation; and

7. The amount of administrative penalties which have been imposed in similar situations.

C. There are five violation categories reflecting penalty amounts corresponding to the seriousness of the violation. These are:

1. Category 1: "Category 1 Violations" are those which have a negligible impact, and which are committed through neglect or oversight;

2. Category 2: "Category 2 Violations" are those which have a negligible impact, and are committed intentionally;

3. Category 3: "Category 3 Violations" are those which have significant impact and are committed through neglect or oversight;

4. Category 4: "Category 4 Violations" are those which have significant impact and are committed intentionally;

5. Category 5: "Category 5 Violations" are those which have extremely significant impact and result from blatantly intentional wrongdoing.

D. The amount of the administrative penalty shall be set according to the following schedule;

1. Category 1 violations shall be subject to an administrative penalty of $25.00 to $100.00;

2. Category 2 violations shall be subject to an administrative penalty of $100.00 to $300.00;

3. Category 3 violations shall be subject to an administrative penalty of $300.00 to $500.00;

4. Category 4 violations shall be subject to an administrative penalty of $500.00 to $2,500;

5. Category 5 violations shall be subject to an administrative penalty of $2,500.00 to $5,000.00.

E. The factors of willfulness and severity of impact are considered together in assigning a particular violation its violation category.

F. In assessing the degree of willfulness and/or negligence, all of the following points should be considered in most cases:

1. How much control the responsible party had over the events constituting the violation;

2. Whether the responsible party took reasonable precautions against the events constituting the violation;

3. Whether the responsible party knew, or should have known, the impacts associated with the conduct;

4. The level of sophistication of the responsible party in dealing with compliance issues.

G. Another factor in determining the amount of penalty is the number of prior violations of the same or related type as involved in the case in question, which have been committed by the responsible party within a prior 36-month period. Repeat or successive violations are defined as violations of the same or related ordinances or permit conditions regarding the subject premises.

H. To ease the financial burden of administrative penalty payments and to provide an incentive for future compliance, a penalty suspension may be granted by the City Manager in lieu of full payment. Rather than requiring a person found in violation to pay the entire penalty at the time the violation is discovered, a suspension of a percentage of their payment may be offered. The suspension will be in effect for one year from the penalty date. If additional violations of related ordinances occur within a year, the suspended portion of the penalty may be assessed against the responsible party in addition to a penalty for the new violation. However, if there are no further violations within the year, the responsible party will no longer be liable for the suspended amount. Penalty suspensions can be offered when the responsible party has taken immediate steps to remedy the violation and to prevent future recurrences, and the impact did not result in a threat to public health.

A. Any responsible party against whom an administrative penalty has been imposed may appeal the imposition of the administrative penalty by filing with the City Manager a written notice of appeal within 30 calendar days of service of the administrative penalty order. The written appeal request shall contain:

1. A brief statement setting forth the interest the appealing party has in the matter relating to the imposition of the penalty;

2. A brief statement, in ordinary and concise language, of the material facts which the appellant claims support his/her/its contention that no administrative penalty should be imposed or that an administrative penalty of a different amount is warranted; and

3. An address at which the appellant agrees notice of any additional proceedings or an order relating to imposition of the administrative penalty may be received by first class mail.

B. The administrative penalty appeal shall be heard by the City Manager as the hearing examiner.

A. The administrative penalty appeal hearing shall be set by the hearing examiner, and notice of the appeal hearing shall be sent to appellant by first class mail at the address provided with the written appeal request. The administrative penalty hearing shall be set for an appeal hearing no sooner than 20 days and no later that 45 days following a request for an appeal hearing. Notice of the appeal hearing shall be mailed at least 15 days before the day set for the hearing.

B. At the time set for the administrative penalty appeal hearing, the hearing examiner shall proceed to hear testimony from City staff, the appellant, and any other competent persons with respect to imposition of an administrative penalty.

C. The proceeding at the hearing shall be reported by a tape recording. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the requesting party's own expense.

D. The hearing examiner may, upon request of the responsible party against whom a penalty is to be imposed, or upon request of City staff, grant continuances from time to time for good cause shown, or upon its own motion.

E. The hearing examiner or certified shorthand reporter shall administer the oath or affirmation.

F. Government Code Section 11513, subsections (a), (b) and (c), as it exists on the effective date of the ordinance adopting these provisions, or as hereafter amended, shall apply to all administrative penalty hearings.

G. Parties may represent themselves or be represented by any person of their choice. If a party does not proficiently speak or understand the English language, he/she may provide an interpreter at that party's own cost, to translate for that party, but an interpreter shall not have had any personal involvement in the issues of the case prior to the hearing.

H. In reaching a decision, official notice may be taken, either before or after submission of the case for decision of any fact which may be judicially noticed by the courts of this state or which may appear in any of the official records of the City, or any of their departments.

I. In case of violation related to property, the hearing examiner may inspect the building and premises involved in the hearing prior to, during, or after the hearing, provided that:

1. Notice of such inspection shall be given to the parties before the inspection being made;

2. The parties consent and are given an opportunity to be present during the inspection;

3. The hearing examiner shall state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, upon completion of the inspection, the material facts observed and the conclusion drawn therefrom. Each party then shall have the right to rebut or examine the matter so stated by the hearing examiner either for the record during the hearing or by filing a written statement after the hearing for inclusion in the hearing record.

J. Notice to the parties, or the owner's consent to inspect the building and surrounding properties is not required if the property can be inspected from areas in which the general public has access to or with permission of other persons authorized to provide access to the property on which the building is located.

K. The hearing examiner shall have the authority to issue subpoenas for orders to appear and produce testimony or subpoenas duce tecum for orders to produce documents. The hearing examiner shall only issue a subpoena upon the showing of reasonable necessity by the requesting party. Failure to comply with any subpoena may be considered by the hearing examiner in making its decision regarding the imposition of administrative penalties.

A. The hearing examiner may affirm the administrative penalty order imposed, reduce the penalty, or find that imposition of the penalty is not warranted or is not in the interest of justice. In the event that the hearing examiner reduces the administrative penalty, it may not be reduced less than the minimum amount set forth in this chapter for the category violation imposed.

B. In making a decision regarding the administrative penalty, the hearing examiner shall consider evidence presented by all witnesses, the seriousness of the violation, the responsible party's efforts to correct the violation, the injury or damage, if any, suffered by any member of the public, any instances in which the responsible party has been in violation of the same or similar ordinance provisions in the previous three years, and the amount of City staff time which was expended investigating and addressing the violation.

C. The decision of the hearing examiner shall be issued within 30 days of the hearing, shall be in writing, and shall contain findings of fact and a determination of the issues presented. The decision shall require any administrative penalty to be paid within 25 calendar days of the date the decision becomes final. The decision shall inform the responsible party that if the administrative penalty is not paid within the time specified it may be made a personal obligation of the responsible party, may also be made a lien against the property owned by the responsible person against whom the penalty was imposed, or may be collected by special assessment. The hearing examiner's decision shall also inform the responsible party against whom an administrative penalty has been imposed that any judicial review of the hearing examiner's decision must be filed with a court of competent jurisdiction within 20 days from the date the decision becomes final.

D. Upon issuance of the decision, the hearing examiner shall serve a copy on the appellant by first class mail to the address provided by appellant in the written notice of appeal, the hearing examiner decision shall be deemed served within two days after the date it was mailed to the address provided by the appellant.

E. The decision of the hearing officer shall be final 10 days following service on the appellant unless an appeal is taken to the City Council pursuant to Section 1.12.080.

A. Any appellant aggrieved by the action of the hearing officer may appeal therefrom by filing a written notice of appeal with the City Clerk within 10 days following service of the decision of the hearing examiner, on a form prescribed by the City, and by paying an appeal fee at the time of filing such notice of appeal. The amount of the appeal fee shall be $250.00; provided, however, that the City Council may set a different appeal fee from time to time by resolution. If the appellant prevails in whole on appeal, the City Council shall order the appeal fee refunded. If the appellant prevails in part on appeal, the City Council may order the appeal fee refunded in whole or in part.

B. Unless otherwise provided by the City Council, all appeals shall be heard by the City Council. The City Council shall forthwith set a time and place for the appeal to be heard within 30 days from and after the filing the notice of appeal, or as soon thereafter as the matter can practicably be heard. The City Clerk shall immediately notify the hearing officer of said appeal and request transmittal of pertinent records to the hearing body. Notice of the time and place of the hearing shall be given to appellant by first class mail to the address provided by appellant in the written notice of appeal at least 10 days prior to the hearing.

C. At the time set for the hearing of the appeal, the appellant shall be given an opportunity to show cause on the grounds specified in the notice of appeal why the action appealed from should be modified or reversed. The body hearing the appeal may continue the hearing from time to time, and, unless otherwise provided by the City Council, its findings on the appeal shall be final and conclusive in the matter. The body hearing the appeal may reverse, affirm, wholly or partly, modify, or set aside the action of the hearing examiner. The decision of the body hearing the appeal, including findings, if any, shall be in writing and shall be filed with the City Clerk and a copy shall be served on the appellant by first class mail to the address provided by the appellant in the written notice of appeal.

A. Any responsible party against whom an administrative penalty has been imposed shall pay the administrative penalty within 25 days after the order or decision of the hearing examiner, or the City Council on appeal, becomes final. The City Manager may take the actions set forth in this section to collect the unpaid penalty.

B. In the event a civil action is commenced to collect the administrative penalty, the City shall be entitled to recover all costs associated with the collection of the penalty. Costs include, but are not limited to, staff time incurred in the collection of the penalty and those costs set forth in Code of Civil Procedure Section 1033.5.

C. An administrative penalty shall accrue interest at the same annual rate as any civil judgment. Interest shall accrue commencing on the 26th day following the date the decision of the hearing examiner, or the City Council on appeal, becomes final.

D. The amount of any unpaid administrative penalty, plus interest, plus any other costs as provided in this chapter, may be declared a lien on any real property owned by the responsible party within the City of Blue Lake against whom an administrative penalty has been imposed, as follows:

1. Notice shall be given to the responsible party prior to the recordation of the lien, and shall be served in the same manner as a summons in the civil action pursuant to the Article 3 (commencing with Section 415.10) Chapter 4 of Title 5 of Part Two of the Code of Civil Procedure;

2. The lien shall be attached when the City Manager records a lien listing delinquent unpaid administrative penalties with the County Recorder's Office. The lien shall specify the amount of the lien, the date of the ordinance violations, the date of the final administrative decision, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the record owner of the parcel; and

3. In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection B of this section shall be recorded by the City Manager.

E. The amount of the unpaid administrative penalty, plus interest, plus any other costs as provided by this chapter, may be declared a special assessment against any real property owned by the responsible party within the City of Blue Lake against whom an administrative penalty has been imposed. The City Council may impose the special assessment on one or more parcel. However, the amount of the assessment shall not exceed the penalty imposed for the administrative violation. The City Manager or designee may present a resolution to the City Council to declare a special assessment, and upon passage and adoption thereof shall cause a certified copy thereof to be recorded with the Humboldt County Recorder's Office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquent as provided for ordinary property taxes.

F. The City may withhold issuance of licenses, permits and other entitlement to a responsible party on any project, property, or application of any kind whenever an administrative penalty remains unpaid.

G. The City may take such other actions as are allowed for enforcement of a civil judgment as provided for pursuant to the Enforcement of Judgment Law, California Code of Civil Procedure Section 680.010 et seq.