Cupertino Municipal Code Ch. 1.10 Administrative Citations, Fines, and Penalties

Whenever a Code Enforcement Officer determines that a violation of the municipal code and/or applicable statute, rule, code or regulation has occurred, the Code Enforcement Officer may issue an administrative citation and assess an administrative fine to any party responsible for the violation or recommend the imposition of an administrative penalty, in addition to any other enforcement remedies authorized by this code.

(Ord. 20-2203, § 4, 2020)

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

1. "Administrative Citation Fines" means a penalty to be paid in conjunction with issuance of an administrative citation for a violation of the municipal code.

2. "Administrative Penalty" means a penalty, separate from the administrative citation fine, assessed by the City Council for a violation of the municipal code.

3. "Business day" means a day on which the main operations of the City of Cupertino are open for business and does not mean any day on which only specialized functions are in operation, such as divisions of the city or its agents that operate on a 24/7 schedule.

4. "Enforcement officer" means any city employee or employee of a contracting agency or any agent of the city with the authority to enforce any provision of this municipal code, including, but not limited to, the City Manager, City Attorney, Director of Administrative Services, Director of Community Development, Director of Parks and Recreation, Director of Public Works and any Sheriff, Animal Control Officer or Code Enforcement Officer.

5. "Hearing Officer" means any person designated by the City Manager to hear appeals of administrative citations. The Hearing Officer shall not be any enforcement officer or supervisor. 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.

6. "Responsible person" means any person who is in immediate control of the premises or activity which constitutes a violation of this municipal code and/or applicable statute, rule, code or regulation, the business owner, the property owner, and any person engaging in prohibited conduct.

(Ord. 20-2203, § 4, 2020)

A. Whenever an enforcement officer charged with the enforcement of this municipal code and/or applicable statute, rule, code or regulation determines that a violation of any provision of this municipal code and/or applicable statute, rule, code or regulation has occurred, the enforcement officer shall have the authority to issue an administrative citation to any responsible person.

B. Each administrative citation shall contain the following information:

1. Name of 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 of the municipal code and/or applicable statute, rule, code or regulation violated and a description of the violation;

5. A prohibition of the continuation or repeated occurrence of the municipal code and/or applicable statute, rule, code or regulation violation described in the administrative citation;

6. A description of the potential consequences should the violator continue or repeat the violation;

7. The amount of the administrative citation fine for the municipal code and/or applicable statute, rule, code or regulation violation;

8. 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 and the process by which the city may collect any unpaid amounts owed;

9. A description of the administrative citation review process, including the time within which the administrative citation may be contested and how to obtain a form to contest the administrative citation; and

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

C. An administrative citation may be in letter form or any other form which adequately conveys the information set forth above.

(Ord. 20- 2203, § 4, 2020)

A. An administrative citation may be served in any of the following ways:

1. By personal delivery to the violator;

2. If the violator is being charged for violations occurring at a business operating within the city, and the violator is the owner or an employee of the business, the citation may be served by causing a copy of the citation to be sent by certified mail, postage prepaid, return receipt requested to the address shown on any permit or license issued by the city to the business; or

3. By causing a copy of the citation to be sent by certified mail, postage prepaid, return receipt requested, to an address otherwise known to the enforcement officer.

B. Where personal delivery or service by mail upon a property owner cannot be made despite a diligent effort, a copy of the citation shall be conspicuously posted at the subject property.

C. Service of a citation which is personally served shall be deemed completed at the time of such personal service. Service of a citation which is served by mail is deemed completed on the date the document is deposited in the mail. Service of a citation which is served by posting is completed at the time of posting.

D. The failure of any person to receive a copy of an administrative citation shall not affect the validity of any proceedings or actions taken under this chapter. Service by certified mail in the manner herein provided shall be affixed to the copy of the citation and retained by the enforcement officer. A copy of any posted notice shall be kept along with a certificate of posting containing the date, time, and identification of the individual performing the posting.

(Ord. 20-2203, § 4, 2020)

The enforcement officer may immediately issue an administrative citation for a violation of the municipal code and/or applicable statute, rule, code or regulation subject to the following:

A. Prior to the first administrative citation being issued, a reasonable amount of time, but not less than 15 calendar days, must be provided, in which to correct or otherwise remedy violations pertaining to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health or safety.

B. Prior to administrative citations being issued, if the responsible person offers proof that he or she has commenced taking action to correct or otherwise remedy the violation and/or that a proper application for any required permit has been made and is awaiting issuance of the same, in good faith, the enforcement officer may extend the time in which to correct or otherwise remedy a violation.

(Ord. 20-2203, § 4, 2020)

If the enforcement officer has determined that a violation of the provisions of this code exist, he or she may also provide a notice of intent to record a notice of code violation to the owner of the property upon which the violation is located. The notice of intent to record shall be provided in the same manner as is required for an administrative citation and may be appealed in the same manner as an administrative citation. If there is no timely appeal, or at the conclusion of any appeal, should the city prevail, and the violation continues to exist, the enforcement officer may record a notice of violation in the office of the County Recorder.

(Ord. 20-2203, § 4, 2020)

A. Any party to whom an administrative citation is issued shall be responsible for payment of a fine for violating the municipal code and/or applicable statute, rule, code or regulation as specified in this section.

B. The administrative citation fine assessed in conjunction with the issuance of an administrative citation, pursuant to § 1.10.030, shall be in accord with California Government Code § 53069.4 and is set as follows:

1. A fine not to exceed $100 for a first violation of a code provision;

2. A fine not to exceed $200 for a second violation of the same code provision within one year; and

3. A fine not to exceed $500 for each subsequent violation of the same code provision within one year.

C. A violation of local building and safety codes shall be subject to an administrative citation fine as follows:

1. A fine not to exceed $130 for a first violation of a code provision;

2. A fine not to exceed $700 for a second violation of the same code provision within one year; and

3. Either:

a. A fine not to exceed $1,300 for each subsequent violation of the same code provision within one year; or

b. A fine not to exceed $2,500 for each subsequent violation of the same code provision within two years of the first violation if the property is a commercial property that has an existing building at the time of the violation and the violation is due to failure by the owner to remove visible refuse or failure to prohibit unauthorized use of the property.

D. If the maximum amounts allowed to be charged in the California Government Code changes, then that change shall become effective with regard to this chapter.

E. A person found to violate the municipal code is guilty of a separate offense for each and every day during any portion of which any violation is committed, continued or permitted by the person, and is punishable as provided in § 1.10.070.

(Ord. 20-2203, § 4, 2020)

A. Any person fined under § 1.10.070(B)(2) or (3), or § 1.10.070(C)(2) or (3) may be granted a hardship waiver reducing the amount of the fine if:

1. The party has made a bona fide effort to comply after the first violation; and

2. Payment of the full amount of the administrative citation fine would impose an undue financial burden on the responsible party.

B. A hardship waiver request shall be filed on a hardship waiver application form, available from the City Clerk's office, within ten business days of service of the administrative citation levying the fine. A sworn affidavit, together with any supporting documents or materials, demonstrating why the requirements of § 1.10.080(A) are satisfied must be submitted. If the request and supporting materials demonstrate to the satisfaction of the City Manager or his or her designee that the requirements of § 1.10.080(A) are satisfied, the fine shall be reduced as the City Manager or his or her designee deems appropriate. Any hardship waiver request not timely filed shall be rejected, and the applicant shall be deemed to have waived his or her right to request a waiver.

(Ord. 20-2203, § 4, 2020)

A. Any recipient of an administrative citation may, within ten business days from the date that service of the administrative citation was completed, contest that there was a violation or that he or she is the party responsible for committing the violation by filing an appeal with the City Clerk for the matter to be heard by a Hearing Officer. Any appeal not timely filed shall be rejected.

B. All appeals from any administrative citation shall be in writing and shall contain the following information:

1. Name(s) of each appellant;

2. A copy of the administrative citation or the reference number of the administrative citation;

3. A brief statement in ordinary and concise language of the specific items protested, together with any material facts claimed to support the contentions of the appellant;

4. A brief statement in ordinary and concise language of the relief sought and the reasons why the administrative citation should be rescinded, modified or otherwise set aside; and

5. The signatures of all parties named as appellants and their mailing addresses.

C. Any recipient of an administrative citation contesting the citation must submit to the City Clerk an advance deposit of the total fine amount or an advance deposit hardship waiver application form as described in § 1.10.100. Any appeal of the administrative citation filed without payment of the advance deposit or submittal of the advance deposit waiver application shall be deemed incomplete.

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

E. If the enforcement officer submits an additional written report concerning the administrative citation to the Hearing Officer for consideration, then a copy of this report also shall be served on the person requesting the hearing at least five business days prior to the date of the hearing.

F. Collection of fines on any administrative citation shall be stayed during the pendency of an appeal which is properly and timely filed.

(Ord. 20-2203, § 4, 2020)

A. Any person who intends to request a hearing to contest an administrative citation, and who is financially unable to make the advance deposit of the fine as required in § 1.10.090, may file a request for an advance deposit hardship waiver which shall include a sworn affidavit as described in subsection (C) below.

B. The request shall be filed on an advance deposit hardship waiver application form, available from the City Clerk's office, in conjunction with submitting the appeal.

C. The city may waive the requirement of an advance deposit and issue the advance deposit hardship waiver only if the cited party submits to the city a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the City Manager or designee the person's actual financial inability to deposit with the city the full amount of the fine in advance of the hearing. In determining the cited party's financial ability or inability to deposit the full amount of the fine in advance, the City Manager or designee shall consider the amount of the fine imposed, the income of the cited party, the expenses of the cited party, and any other factors that are reasonably related to the cited party's ability to deposit the full amount.

D. The requirement of depositing the full amount of the fine as described in § 1.10.090 shall be stayed unless or until the city makes a full determination not to issue the advance deposit hardship waiver. The city must make its determination within a reasonable period of time, taking into account the complexity of the data pertinent to the application.

E. If the city makes a determination to deny the advance deposit hardship waiver application, a written determination listing the reasons for the denial shall be issued. The written determination to deny the waiver shall be final.

F. The written determination of the city's denial of the advance deposit hardship waiver shall be served by mail upon the person who applied for the waiver.

(Ord. 20-2203, § 4, 2020)

Failure to timely and properly file an appeal from an administrative citation shall constitute a waiver of all rights to an appeal hearing. The determination that the violation occurred and that the violator was responsible for the violation shall be deemed final on the date that service of the administrative citation is deemed completed pursuant to § 1.10.040.

(Ord. 20-2203, § 4, 2020)

A. A hearing before the Hearing Officer shall be set for a date that is not less than 15 business days and not more than 60 calendar days from the date that a notice of hearing was issued, unless the enforcement officer determines that the matter is urgent and needs to be heard sooner or that good cause exists for an extension of time.

B. No hearing to contest an administrative citation shall be held unless the fine set forth in § 1.10.060 has been deposited in advance or an advance deposit hardship waiver application has been filed with and accepted by the city pursuant to § 1.10.100.

C. The hearing serves to provide the full opportunity of a person subject to an administrative citation to object to the determination that a violation has occurred and/or that the violation has continued to exist.

D. The Hearing Officer shall consider any written or oral evidence submitted that is relevant to the matter. Formal rules of evidence do not apply. 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. All hearings shall be open and public.

E. The failure of any person subject to or the recipient of any administrative citation to appear at the hearing shall constitute a waiver of any objections to the imposition of a fine or other appropriate remedy imposed by the Hearing Officer, and a failure to exhaust administrative remedies.

F. The Hearing Officer may continue the hearing and request additional information from the enforcement officer or the person(s) accused of a violation prior to issuing a written decision.

(Ord. 20-2203, § 4, 2020)

A. Within a reasonable time following the conclusion of the hearing, the Hearing Officer shall make findings and issue a written determination, a copy of which shall be provided to both the responsible party and the enforcement officer. The determination shall specify the amount of the fine to be imposed and a date by which the fine shall be paid.

B. If the Hearing Officer finds that no violation has occurred or that the violation was corrected within the time period specified, the Hearing Officer shall issue a written finding of those facts. If the Hearing Officer determines that an administrative citation should be cancelled, the city shall promptly refund the amount of the fine. If the Hearing Officer upholds the violation, the city shall retain any fines paid or shall be entitled to collect any fines owed but unpaid.

(Ord. 20- 2203, § 4, 2020)

A. In any instance where staff deems that the imposition of further administrative fines may no longer be effective in compelling compliance, staff may recommend that the City Council consider imposing an administrative penalty due to the egregious nature of a violation, or the repeated failure to correct a violation, of the municipal code and/or applicable statute, rule, code or regulation. The matter may be brought forward to the City Council for a hearing. The city shall provide at least five business days' notice to the violating party that the City Council will be considering such administrative penalty. If the City Council finds by a preponderance of the evidence that a violation has occurred and that the situation warrants the imposition of an administrative penalty, the City Council may issue a final order that imposes any or all of the following:

1. A directive to cease and desist from committing the violation;

2. A directive to correct the violation, including a schedule for correction where appropriate;

3. Administrative penalties based upon the administrative penalty set pursuant to § 1.10.150;

4. Administrative costs; and

5. Interest imposed at the legal rate.

B. The order shall state that failure to comply with its provisions may result in the city proceeding with an abatement consistent with the provisions of § 1.09.100 and charging the cost of abatement plus all administrative costs to the property owner, and may further result in the city collecting the monies due as a personal obligation of the responsible party or as a lien against the parcel and/or as a special assessment, and such lien or special assessment may be recorded, and that such property may be sold after three years by the Tax Collector for unpaid delinquent assessments.

C. If the violator gives written notice to the enforcement officer, City Manager or City Council that the violation has been corrected and if the city finds that compliance has been achieved, the date the written notice was postmarked or personally delivered or the date of the final inspection, whichever first occurred, shall be deemed to be the date the violation was corrected. If no written notice is provided, the violation will be deemed corrected on the date of the final inspection. If the city determines that compliance has been achieved, the enforcement officer shall document that compliance has been achieved. A copy of the compliance documentation shall be served on the responsible party.

D. The order of the City Council is final at the time it is made; however, the City Council shall maintain continuing jurisdiction and shall have the power to modify the order, after providing the person subject to the order with notice and an opportunity to be heard, until full compliance is achieved. The order of the City Council shall be subject to reconsideration pursuant to Chapter 2.08 of this municipal code.

E. The order shall have the same force and effect as a resolution of the City Council for the purpose of filing a lien with the County of Santa Clara or Tax Collector's office pursuant to this municipal code and for the purpose of pursuing any other collection or enforcement action to obtain payment of the amounts owed to the city.

F. The order, if recorded, shall have the same force and effect and priority as a judgment lien governed by the provisions of § 697.340 of the California Code of Civil Procedure and may be extended as provided in §§ 683.110 to 683.220, inclusive, of the California Code of Civil Procedure.

(Ord. 20-2203, § 4, 2020)

A. Any party subject to an order by the City Council to pay an administrative penalty shall be responsible for payment of the penalty in the amount specified in this section. The administrative penalty is separate from the amount of any administrative citation fine imposed pursuant to this chapter.

B. The City Council may impose an administrative penalty in an amount not to exceed a maximum of $1,000 per day for each violation, exclusive of administrative costs, interest and restitution for compliance re-inspections, for any related series of violations or ongoing violations. In determining the amount of the administrative penalty, the City Council may take any or all of the following factors into consideration: duration of the violation; frequency, recurrence and number of violations, related or unrelated, by the same violator; seriousness of the violation; good faith efforts of the violator to come into compliance; economic impact of the penalty on the violator; impact of the violation on the community; and any other factors as justice may require.

C. The imposition of administrative citation fines by staff shall cease at the time that administrative penalties by the City Council are imposed. At no concurrent time shall the combined amount of an imposed administrative fine and administrative penalty exceed a maximum of $1,000 per day, or the maximum daily fine allowed under § 1.10.070, whichever is greater, for each violation.

D. If the responsible person fails to correct the violation(s), other enforcement actions may be pursued by the city.

(Ord. 20-2203, § 4, 2020)

A. The amounts due shall be paid to the city within 30 calendar days from the issuance date of the decision, unless otherwise specified.

B. Payment of any fine and/or penalty 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 municipal code and/or applicable statute, rule, code or regulation violation that is the subject of the original enforcement action.

C. Any person who fails to pay to the city any amount imposed pursuant to the provisions of this chapter on or before the date the amount is due also shall be liable for the payment of any applicable late payment charges consistent with the provisions of § 5.04.250 of this municipal code.

D. If unpaid as of the date specified in any decision or order, all amounts due and any interest assessed shall be collected by the city by use of all available legal means, and may be enforced as:

1. A personal obligation of the violator; and/or

2. If the violation is in connection with real property, a lien upon the real property. The lien shall remain in effect until all of the amounts due are paid in full.

E. In addition to any other remedies provided by law, failure to pay amounts due and interest as specified on or before the date specified shall constitute a violation of this municipal code punishable as a misdemeanor.

(Ord. 20-2203, § 4, 2020)

Whenever a notice is required to be given under this chapter, unless different provisions are otherwise specifically made, such notice may be given either by personal delivery 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 the last-known business or residence address as the same appears in the last equalized county assessment roll or to the records pertaining to the matter to which such notice is directed. Service by mail shall be deemed completed at the time of deposit in the United States mail is made. Where personal service or service by mail upon the property owner cannot be made despite a diligent effort, a copy of any notice shall be conspicuously posted at the property that is the subject of the notice. Failure to receive any notice specified herein does not affect the validity of proceedings conducted hereunder.

(Ord. 20- 2203, § 4, 2020)

Any person aggrieved by the decision on an administrative citation fine or penalty pursuant to §§ 1.10.130 and 1.10.150 may obtain review of the decision by filing a petition for review with the Superior Court in Santa Clara County in accordance with the time lines and provisions set forth in California Government Code § 53069.4.

(Ord. 20-2203, § 4, 2020)