Brisbane Municipal Code Ch. 1.18 Administrative Compliance Orders

A. This chapter provides for administrative remedies which are in addition to all other civil legal remedies and which are an alternative to criminal legal remedies that may be pursued by the city to address any violation of this code, or any other ordinance of the city, or any rule, regulation or order promulgated or issued pursuant to this code, or the provisions of any code adopted by reference by this code, or any condition of an approval, permit or license granted pursuant to this code.

B. Use of the remedies and procedures of this chapter shall be at the sole discretion of the enforcement officers. The availability of the remedies and procedures of this chapter are not exclusive and shall not limit or preclude the use of criminal or other civil code enforcement proceedings, including issuance of an administrative citation pursuant to Chapter 1.16 of this code and commencement of judicial injunctive or abatement proceedings.

(Ord. No. 547, § 6, 10-4-10)

For the purposes of this chapter, the following definitions shall apply:

A. "Applicable law" means this code, or any other ordinance of the city, or any rule, regulation or order promulgated or issued pursuant to this code, or the provisions of any code adopted by reference by this code, or any condition of an approval, permit or license granted pursuant to this code, or any combination of the foregoing.

B. "Enforcement officer" means any city employee or employee of a contracting agency, including the county, or any agent of the city, having the authority to enforce any applicable law.

C. "Hearing officer" means any person designated by the city manager to hear an appeal of an administrative compliance order. The hearing officer shall not be any enforcement officer or direct supervisor of an enforcement officer and may be a non-employee of the city. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the extent to which an administrative compliance order is upheld by the hearing officer or the extent to which administrative penalties and administrative costs are imposed by the hearing officer.

D. "Responsible person" means any person who is in immediate control of the premises or activity which constitutes a violation of an applicable law, the business owner, the property owner, and any person engaging in prohibited conduct.

(Ord. No. 547, § 6, 10-4-10)

A. Whenever an enforcement officer determines that a violation of any applicable law has occurred, the enforcement officer shall have authority to issue a written administrative compliance order to any responsible person.

B. Each administrative compliance order shall contain the following information:

1. The name(s) and address(es) of the responsible person(s).

2. The date(s) of the violation.

3. The address or a definitive description of the location where the violation occurred.

4. The section or provision of the applicable law which has been violated and a description of the violation.

5. The action required to correct the violation.

6. The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved, and the amount of penalties that will begin to accrue.

7. Either a copy of this chapter or an explanation of the consequences of noncompliance with the compliance order and a description of the hearing procedure and appeal process for contesting the compliance order.

8. The name and signature of the enforcement officer issuing the compliance order.

(Ord. No. 547, § 6, 10-4-10)

A. An administrative compliance order may be served in any of the following ways, as may be applicable:

1. By personal delivery to the responsible person.

2. By causing a copy of the compliance order to be sent by certified mail, postage prepaid, return receipt requested, addressed to a location reasonably calculated to give notice to the responsible person, as determined by the enforcement officer. If the violation involves any real property, the notice may be sent to the address of the owner as it appears in the most recently adopted assessment roll of the county.

3. If any compliance order sent by certified mail is not delivered by reason the U.S. Postal Service being unable to obtain a signed receipt and the failure of the addressee to thereafter claim the mail from the post office, the compliance order may then be sent to the responsible person by regular mail.

4. Where personal delivery or service by mail upon a property owner cannot be made despite a diligent effort, the compliance order may be served by posting a copy thereof at a conspicuous location on any real property that is the subject of the order.

B. Service of a compliance order which is personally served is completed at the time of such personal service. Service of a compliance order which is served by certified mail shall be deemed completed on the date the receipt is signed. Service of a compliance order which is served by regular mail which is not returned by the U. S. Postal Service shall be deemed completed on the third business day after deposit of the order in the U.S. Mail. Service of a compliance order which is served by posting is completed at the time of posting.

C. The failure of any person to receive a copy of a compliance order shall not affect the validity of any proceedings or actions taken under this chapter. A copy of the return receipt or affidavit of mailing, or a copy of the posted compliance order along with an affidavit of posting, shall be retained by the enforcement officer.

(Ord. No. 547, § 6, 10-4-10)

A. If the enforcement officer determines that all violations have been corrected within the time specified in the compliance order, or within such additional time as may be allowed by any amended order, the enforcement officer shall so advise each party to whom the compliance order was addressed.

B. If full compliance is not achieved within the time specified in the compliance order or any amended order, the enforcement officer shall schedule a hearing before a hearing officer. The hearing shall be set for a date that is not less than ten (10) days and not more than sixty (60) days from the date that a notice of hearing is issued, unless the hearing officer determines that the matter is urgent and needs to be heard sooner or that good cause exists for an extension of time. Notice of the hearing shall be sent by regular mail to each responsible person named in the compliance order.

(Ord. No. 547, § 6, 10-4-10)

A. The hearing serves to provide the full opportunity to the person subject to a compliance order to object to the determination that a violation has occurred, and/or that the violation has continued to exist, and/or that the person subject to the compliance order is responsible for the violation. The person subject to the compliance order may appear personally or through an attorney and shall have the opportunity to testify, present evidence, and cross-examine witnesses concerning the compliance order.

B. The hearing officer shall consider any written or oral evidence submitted that is relevant to the compliance order. Formal rules of evidence do not apply. The compliance order shall constitute prima facie evidence of the facts set forth therein. All hearings shall be open and public.

C. The hearing officer may continue the hearing and request additional information from the enforcement officer or the person subject to the compliance order prior to issuing a written decision.

D. The failure of the person subject to the compliance order to appear at the hearing after proper notice or, in the alternative, to present evidence for consideration at the hearing, shall constitute a failure to exhaust administrative remedies that may bar judicial review.

(Ord. No. 547, § 6, 10-4-10)

A. Within a reasonable time following the conclusion of the hearing, the hearing officer shall make findings and issue a decision regarding the existence of the violation and the extent of compliance with the order. The hearing officer shall issue written findings on each violation specified in the compliance order. A copy of the decision shall be provided to both the person subject to the compliance order and the enforcement officer.

B. If the hearing officer finds that a violation has occurred and has not been corrected within the time specified in the compliance order, and further finds that any person subject to the compliance order is responsible for such violation, the hearing officer shall issue an administrative order pursuant to Section 1.18.080 of this chapter.

C. If the hearing officer finds that no violation has occurred, or that the violation has been fully corrected, or that the person subject to the compliance order is not responsible for the violation, the hearing officer shall rescind the compliance order and direct that no further proceedings be conducted thereon.

(Ord. No. 547, § 6, 10-4-10)

A. An administrative order issued by the hearing officer following a determination that a violation has occurred, has not been corrected, and that the person subject to the order is responsible for the violation, shall impose any or all of the following:

1. An order to correct the violation, including a schedule for performance of the corrective work if appropriate.

2. Payment of administrative penalties as provided in this chapter.

3. Payment of administrative costs as provided in this chapter.

B. The administrative order of the hearing officer is final at the time it is made; however, the hearing officer shall retain continuing jurisdiction over the violation that is the subject of the order and shall have the power to modify the administrative order, after providing the person subject to the order with notice and an opportunity to be heard, until full compliance with the order is achieved.

(Ord. No. 547, § 6, 10-4-10)

A. The hearing officer may impose administrative penalties for each day during which a violation is continued after the date when compliance was ordered to be achieved, in an amount not to exceed the maximum provided in a schedule of administrative penalties as adopted from time to time by resolution of the city council and in effect as of the date on which the administrative order is issued.

B. In determining the amount of the administrative penalty, and subject to the limitation set forth in subsection C of this section, the hearing officer may take any or all of the following factors into consideration:

1. The duration of the violation;

2. The frequency, recurrence, and number of violations, related or unrelated, by the same violator;

3. The seriousness of the violation;

4. The good faith efforts of the violator to come into compliance;

5. The impact of the violation on the community;

6. Such other factors as justice may require.

C. If the violation of applicable law would otherwise constitute an infraction offense, the administrative penalty that may be imposed per day for each separate violation shall not exceed the amount allowed or permitted by California Government Code Section 53069.4.

D. Administrative penalties imposed by the hearing officer shall accrue on a daily basis from the date specified in the administrative order, and shall be payable at the time and in the manner prescribed by the administrative order. The administrative penalties shall cease to accrue on the date the violation is corrected to the reasonable satisfaction of the enforcement officer, as evidenced by a final inspection approval signed by the enforcement officer.

E. The hearing officer may suspend the imposition of administrative penalties for any period of time during which:

1. The violator has applied for any permits that are required for performance of the corrective work; and

2. Such permit applications are actively pending before the city or other governmental agency responsible for issuance thereof.

(Ord. No. 547, § 6, 10-4-10)

A. The hearing officer may assess administrative costs against the violator when the hearing officer determines that a violation has occurred and the violator failed to correct such violation within the time specified in the administrative compliance order.

B. The administrative costs may include any and all costs incurred by the city in connection with the matter before the hearing officer, including, but not limited to, costs of inspection, investigation, staffing costs incurred in preparation for the hearing and costs to conduct the hearing, and costs for all re-inspections necessary to enforce the administrative order.

(Ord. No. 547, § 6, 10-4-10)

A. Within twenty (20) days after service of the final decision of the hearing officer, a person contesting that decision may seek judicial review by filing an appeal to be heard by the superior court for San Mateo County pursuant to Government Code Section 53069.4.

B. If no notice of appeal is filed within the time specified in subsection A of this section, the decision of the hearing officer shall be deemed confirmed.

(Ord. No. 547, § 6, 10-4-10)

A. Payment of any penalties and administrative costs shall not excuse the failure to correct the violation, nor shall it bar further enforcement action by the city for any continuation or repeated occurrence of the violation that was the subject of the original compliance order, or any other violation of an applicable law.

B. Any person who fails to pay the city the amount imposed as an administrative penalty or administrative cost within the time prescribed in the administrative order shall be liable for payment of a late charge thereon in an amount equal to one percent per month of the delinquent payment from the date such payment became due until the date it is paid in full.

C. The city shall be entitled to collect all administrative penalties, administrative costs, and late charges owed to it pursuant to this chapter by use of all available legal means, and the same may be collected as:

1. A personal obligation of the person subject to the administrative order; and/or

2. A lien upon real property, if the violation is in connection with such property, in accordance with the provisions of Section 1.18.130 of this chapter.

(Ord. No. 547, § 6, 10-4-10)

A. Upon a determination that any administrative penalty and/or administrative cost owed to the city pursuant to this chapter has not been paid in full within ninety (90) days from the date the same became due, and in cases where the violation involves any real property, the city may elect to collect such amounts by means of a recorded lien against such property pursuant to this section.

B. Prior to recordation of the lien, the enforcement official shall prepare and file with the city clerk a report stating the amounts due and owing, the date of the compliance order, the street address and assessor's parcel number of the subject property, and the name and address of the record owner of the property. The report shall be accompanied by a copy of the decision by the hearing officer imposing the administrative penalties and administrative costs which have become delinquent.

C. The city clerk shall fix a time, date and place for the city council to consider such report and hear any protests or objections thereto. A copy of the report along with a written notice of the city council hearing thereon shall be served on each property owner whose interest is shown on the most recently adopted assessment roll of the county not less than ten (10) days prior to the date set for the hearing.

D. Any person owning a legal or equitable interest in the real property proposed to be subject to a lien pursuant to this section may file a written protest with the city clerk and may protest orally at the city council hearing. The grounds for protest or objection, and any evidence or testimony submitted in support or in opposition to the imposition of a lien, shall be confined to whether the amount of any administrative penalties or administrative costs imposed was properly calculated, or was paid in full, or was successfully challenged by a writ of mandate or other proceeding. At the close of the hearing, the city council shall adopt a resolution confirming, discharging, or modifying the amount of the lien based upon evidence produced at the hearing.

E. If the lien, or any portion thereof, is confirmed by the city council, the city clerk shall record the same in the office of the county recorder as a judgment lien against the subject property. Once recorded, such lien shall have the force and effect and priority of a judgment lien governed by the provisions of Section 697.340 of the Code of Civil Procedure, and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

F. A lien recorded pursuant to this section may be foreclosed by an action brought by the city for a money judgment.

G. Once payment in full is received by the city, the city clerk shall either record a notice of satisfaction or provide the property owner with a notice of satisfaction so the owner may record the notice with the county recorder. Such notice of satisfaction shall cancel the city's lien.

(Ord. No. 547, § 6, 10-4-10)