Ceres Municipal Code Ch. 11 Administrative Hearings

This chapter establishes the procedures for the use of Administrative Hearing Officers and the procedures governing administrative hearings.

(Ord. No. 2020-1056, § 3, 2-24-2020)

The City Manager shall retain qualified persons who are capable of acting on behalf of the City as Hearing Officer(s).

(Ord. No. 2020-1056, § 3, 2-24-2020)

Hearing Officer(s) presiding at administrative hearings shall be appointed by the City Manager and compensated by the City. The City Manager shall develop policies and procedures relating to the appointment and compensation of Hearing Officers.

(Ord. No. 2020-1056, § 3, 2-24-2020)

Any person designated to serve as a Hearing Officer is subject to disqualification for bias, prejudice, interest, or for any other reason for which a judge may be disqualified in a court of law. Rules and procedures for the disqualification of a Hearing Officer shall be promulgated by the City Manager.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. The employment, performance evaluation, compensation, and benefits of the Hearing Officer shall not be directly or indirectly conditioned upon the amount of administrative citation penalties upheld by the Hearing Officer.

B. The Hearing Officer shall not transmit communications or otherwise use any electronic devices during the course of a hearing, except in the case of exigent circumstances.

C. The Hearing Officer with any financial interest in the subject matter or who would otherwise be finally impacted by the resolution of the appeal, shall recuse themselves from the particular appeal.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. The Hearing Officer may continue a hearing based on good cause shown by one of the parties to the hearing or if the Hearing Officer independently determines that due process has not been adequately afforded.

B. The Hearing Officer, upon receipt of a written request which is submitted no later than five days before the hearing, shall subpoena witnesses, documents and other evidence where the attendance of the witness or the admission of evidence is deemed necessary to decide the issues at the hearing. All costs related to the subpoena, including witness and mileage fees shall be borne by the party requesting the subpoena. The City Manager shall develop policies and procedures relating to the issuance of subpoenas in administrative hearings, including the form of the subpoena and related costs.

C. The Hearing Officer has continuing jurisdiction over the subject matter of an administrative hearing for the purposes of granting a continuance, ensuring compliance with an administrative order, modifying an administrative order, or where extraordinary circumstances exist, granting a new hearing.

D. The Hearing Officer has the authority to require a responsible person to post a Code Enforcement Performance Bond to ensure compliance with an administrative order.

(Ord. No. 2020-1056, § 3, 2-24-2020)

It is unlawful for any person to refuse to obey a subpoena issued by a Hearing Officer. Failure to obey a subpoena constitutes contempt and may be prosecuted as a misdemeanor.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. A person served with any one of the following documents, orders or notices may file an appeal provided that such appeal is filed within ten calendar days from the service of the notice or document, and payment of the required hearing fee is made:

1. Any civil penalty notice and order;

2. An administrative citation issued pursuant to this Code;

3. A notice of intent to record a notice of violation;

4. A notice of intent to abate, including vehicle abatement; or

5. A notice and order to vacate with or without relocation fees;

6. A notice of confirmation of costs hearing.

B. The appeal shall be made in writing, setting forth the grounds of the appeal, and filed with the Director or Code Enforcement Officer on or before the tenth day after service.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. Where an administrative remedy or proceeding provides for an appeal procedure, the Director or Code Enforcement Officer shall request the City Manager to appoint a Hearing Officer and to schedule a day, time and place for the hearing.

B. Written notice of the time and place of the hearing shall be served at least ten calendar days prior to the date of the hearing to the responsible person.

C. The format and contents of the hearing notice shall be in accordance with rules and policies promulgated by the City Manager.

D. The notice of hearing shall be served by any of the methods of service listed in section 19.01.070 of this title.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. Administrative hearings are intended to be informal in nature. The procedure and format of the administrative hearing shall follow the procedures promulgated by the City Manager. The hearing shall not be conducted according to the formal rules of evidence. Any relevant evidence shall be admitted if it is the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this State. However, irrelevant or unduly repetitious evidence may be excluded.

B. At the time and place designated in the notice, the Hearing Officer shall hear and consider all relevant evidence, including but not limited to applicable staff reports, oral evidence, physical evidence and documentary evidence regarding the alleged nuisance, and proposed method of abatement. The hearing may be continued from time to time.

C. The City shall bear the burden of proof to demonstrate, by a preponderance of the evidence, that a nuisance exists and that the proposed mechanism for abatement is appropriate. The City need not demonstrate that the proposed mechanism for abatement is either the most appropriate or least expensive.

D. Each party shall have the opportunity to cross-examine witnesses and present evidence in support of his or her case.

E. A tape recording of the hearing will be made by the Hearing Officer and provided to the City Clerk, who shall keep it for not less than 180 calendar days from the date of the hearing.

F. All persons present at the hearing shall identify themselves, including their name and address, on the record.

G. All witnesses shall be sworn.

H. Prior to conclusion of the hearing, if the owner or responsible party is present, the Hearing Officer may request the owner or responsible party to sign a consent to enter and perform work. The permission given shall be used only if the nuisance condition is determined to exist and is not abated by the schedule of correction specified in the Hearing Officer's decision.

I. If the owner or responsible party does not provide written consent, entry onto the property may be made by obtaining verbal permission from the owner or a responsible party, or by means of an inspection warrant, or by any other lawful manner.

(Ord. No. 2020-1056, § 3, 2-24-2020)

Failure of the owner or responsible party to appear at the hearing after notice has been served shall be deemed a waiver of the right to a hearing and an admission by the owner or responsible party of the existence of the nuisance condition charged. In the event of such failure to appear, the Hearing Officer may order that the nuisance condition be abated by the enforcement officer or designee. Such failure to appear shall also constitute a failure to exhaust available administrative remedies.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. Within ten days after the conclusion of the hearing, the Hearing Officer shall issue a written decision. Failure to issue a decision in ten days shall not affect the validity of such decision.

B. The decision of the Hearing Officer shall be entitled "administrative order."

C. The decision shall be mailed by certified mail with return receipt requested to the owner and shall be mailed to the enforcement officer. A copy of a summary of the decision and any order it contains shall also be posted on the property by the enforcement officer in a conspicuous location.

D. Hearing Officer's administrative order shall affirm, modify, or reject the Chief of Police's or Code Enforcement Officer's action.

1. In the case of a notice and order of civil penalty, the administrative order may affirm, modify or reject the daily rate or duration of the civil penalties depending upon the review of the evidence and may increase or decrease the total amount of civil penalties and costs assessed.

E. The Hearing Officer may issue an administrative order that requires the responsible person to cease from violating the Municipal Code or applicable State codes and to make necessary corrections within a specific time frame. The administrative order may also promulgate the manner of abatement.

F. As part of the administrative order, the Hearing Officer may establish specific deadlines for the payment of penalties and costs and condition the total or partial assessment of civil penalties on the responsible person's ability to complete compliance by specified deadlines.

G. The Hearing Officer may issue an administrative order which imposes additional civil penalties that will continue to be assessed until the responsible person complies with the Hearing Officer's decision and corrects the violation.

H. The Hearing Officer may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the administrative order.

I. The administrative order shall become final on the date of service of the order.

J. The administrative order shall be served on all parties by any one of the methods listed in section 19.01.070 of this title.

(Ord. No. 2020-1056, § 3, 2-24-2020)

Except as otherwise provided in this chapter or by law, any person aggrieved by any administrative decision of a Hearing Officer pursuant to this chapter may obtain judicial review of the administrative decision in the Superior Court by filing with the court a petition for writ of mandate pursuant to California Code of Civil Procedure section 1094.6.

(Ord. No. 2020-1056, § 3, 2-24-2020)

A. After the Hearing Officer issues an administrative order, the Chief of Police or Code Enforcement Officer shall monitor the violations and determine compliance.

B. Upon the failure of the responsible person to comply with the terms and deadlines set forth in the administrative order, the Chief of Police or Code Enforcement Officer may use all appropriate legal means to recover the civil penalties, administrative costs and obtain compliance with the administrative order including seeking an injunction.

C. Failure to comply with an administrative order constitutes a misdemeanor.

(Ord. No. 2020-1056, § 3, 2-24-2020)