Del Mar Municipal Code Ch. 1.10 Administrative Citations

Unless specifically defined below, words or phrases used in this Chapter shall be interpreted so as to give them the meaning they have in common usage to give this ordinance its most reasonable application.

A. Enforcement Officer means any officer or employee of the City with the authority to enforce the Del Mar Municipal Code, including, but not limited to a code enforcement officer, park ranger, lifeguard, parking enforcement officer, inspector, and the fire marshal.

B. Responsible Person means an individual, partnership, corporation, limited liability company, non-profit corporation, trustee, association or any other legal entity, who is the owner or occupant of real property, the holder or the agent of the holder of any permit, entitlement, or review, or the party or agent of a party to any agreement covered by this Chapter, the owner or authorized agent of any business, company, or entity subject to this Chapter; or the parent or legal guardian of any such person under the age of 18 years, who violates any ordinance, regulation, permit, entitlement, review, or agreement described in Section 1.10.030.

(Ord. No. 762)

A. Continuing Violations. Each separate day, or part thereof, during which a violation of this Code is committed, continued, maintained, permitted, or allowed, shall constitute a separate offense, punishable as such. A separate citation may be issued for each day a violation occurs.

B. Responsibility of New Owners. When a continuing violation of this Code is created or maintained on real property, each successive owner of the real property, including Responsible Persons as described in Section 1.10.010, who neglects to abate the continuing violation, is responsible for the violation in the same manner as the former owner.

C. Aiding and Abetting a Violation. Whenever an act or omission is unlawful under this Code, it shall be unlawful for any person to aid, abet, conceal, suffer, permit, allow or maintain such violation, or become an accessory to such violation after the fact.

D. Lapse of Time. No lapse of time shall legalize a violation of this Code.

A. Any person who violates any provision of the Del Mar Municipal Code or regulation of the City, any condition of approval of a permit or entitlement, any condition of an environmental review, or any term or condition of any agreement with the City made pursuant to the police power may be issued an administrative citation by an Enforcement Officer as provided in this Chapter. A violation of the Del Mar Municipal Code includes, but is not limited to, all violations of that Code, the Uniform Codes adopted by the City, and all uncodified ordinances, including any violation of the following:

1. A design review permit, conditional use permit, administrative design review permit, administrative sign permit, variance, specific plan, parcel map, subdivision map, building or grading permit, any plan, permit or best management practice authorized by the Del Mar Municipal Code.

2. Any encroachment or right of way permit, any license or permit issued pursuant to the Del Mar Municipal Code.

3. Any condition of approval of an environmental impact report, mitigated negative declaration, negative declaration, or determination of categorical exemption.

4. Any condition of any agreement with the City made pursuant to the police power including, but not limited to, any development agreement, owner participation agreement, disposition and development agreement, road maintenance agreement, any easement, license, or other real property use agreement, or any agreement made with the City to implement any ordinance, plan, permit entitlement or review approved by the City.

B. A civil fine shall be assessed by means of an administrative citation issued by the Enforcement Officer and shall be payable directly to the City of Del Mar.

C. Fines shall be assessed in the amounts specified for administrative penalties elsewhere in the Del Mar Municipal Code, by resolution of the City Council, or as follows:

1. A fine not exceeding $100.00 for a first violation.

2. A fine not exceeding $200.00 for a second violation of the same ordinance, term, or condition.

3. A fine not exceeding $500.00 for a third violation of the same ordinance, term, or condition.

4. A fine not exceeding $1,000.00 for each additional violation after the third violation of the same ordinance, term or condition.

D. A second or subsequent violation need only be of the same ordinance, term, or condition to require the larger fine, and need not involve the same personnel or property, provided that the same Responsible Person is cited. The fine amounts shall be cumulative where multiple citations are issued.

An administrative citation on a form approved by the City Manager may be served upon any Responsible Person by an Enforcement Officer in the following manner:

A. Personal Service. In any case where an administrative citation is issued:

1. The Enforcement Officer shall attempt to locate and personally serve the Responsible Person and obtain the signature of the Responsible Person on the administrative citation.

2. If the Responsible Person served refuses or fails to sign the administrative citation, the failure or refusal to assign shall not affect the validity of the administrative citation or of subsequent proceedings.

B. Service of Citation by Mail. If the Enforcement Officer is unable to locate a Responsible Person, the administrative citation shall be mailed to the Responsible Person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the citation shall be sent by first class mail. If the citation is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first class mail, provided the citation sent by first class mail is not returned.

C. Service of Citation by Posting Notice. If the Enforcement Officer does not succeed in personally serving a Responsible Person, or by certified mail or regular mail, the Enforcement Officer shall post the administrative citation on any real property within the City in which the City has knowledge that the Responsible Person has a legal interest, and such posting shall be deemed effective service.

Each Administrative Citation issued to a person shall contain the following:

A. The date of issuance of the citation and the date, approximate time, and address or definite description of the location where the violation(s) was observed, where applicable;

B. The Code section(s) or condition(s) violated and a description of the violation(s);

C. An order for the Responsible Person to correct the violations by a specified correction date, if applicable, and an explanation of the consequences of failure to correct the violation(s);

D. The amount of the fine for each violation;

E. An explanation of how the fine shall be paid and the date by which it shall be paid;

F. Identification of the right of appeal, including the time within which the citation may be contested and the place to obtain a request for hearing form to contest the administrative citation; and

G. A statement that if the fine is not paid timely, a late payment charge of 50 percent of the amount of the fine will be added to the fine.

Upon receipt of a citation, the Responsible Person must do both of the following:

A. Pay the fine to the City within 30 days from the date the administrative citation was issued. All fines assessed shall be payable to the City of Del Mar. Payment of a fine shall not excuse or discharge the failure to correct the violation(s), nor shall it bar further enforcement action by the City.

B. Remedy the violation(s), if the violation(s) is of such a nature that it can be remedied.

If the Responsible Person fails to correct the violation(s), subsequent administrative citations may be issued for the same violation(s) or a criminal or civil action may be filed.

A. Any recipient of an administrative citation may contest that there was a violation of any ordinance, regulation, permit, entitlement, or agreement covered by this Chapter, or that he or she is the Responsible Person by completing a request for hearing form and returning it to the City Clerk within 15 days from the issuance date of the administrative citation. The request for hearing shall be accompanied by a deposit in the amount of the fine or by a sworn affidavit together with documentation demonstrating to the satisfaction of the City Manager the person's actual financial inability to deposit the amount of the fine in advance of the hearing. Any administrative citation deposit shall be refunded within ten days of a determination, after a hearing, that the person charged in the administrative citation was not responsible for the violation(s) or that there was no violation(s) as charged in the administrative citation.

B. The City Manager shall issue a letter to the person submitting a hardship waiver affidavit granting or denying the waiver. If the waiver is denied, the appeal shall be dismissed if the deposit of the fine amount is not made within five days of the date of the letter denying such waiver. The determination of the City Manager shall be final and shall not be subject to appeal or judicial review.

The Del Mar City Manager shall establish a process to designate a fair and impartial hearing officer for the administrative citation hearing. The compensation of the hearing officer, if any, shall be paid by the City. Compensation shall not be directly or indirectly conditioned upon whether or not administrative citations are upheld by the hearing officer.

A. No hearing to appeal an administrative citation before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted in accordance with Section 1.10.070, and the deposit has been made or hardship waiver granted.

B. A hearing before the hearing officer shall be set for a date that is not sooner than 15 and not more the 60 days from the date that the request for hearing is filed in accordance with the provisions of this Chapter. The appellant shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing unless the hearing date has been expedited.

C. The hearing officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the Responsible Person has caused or maintained the violation(s). Courtroom rules of evidence shall not apply. Relevant hearsay evidence and written reports may be admitted whether or not the speaker or author is present to testify, if the hearing officer determines that the evidence is reliable. Admission of evidence and the conduct of the hearing shall be controlled by the hearing officer in accordance with the fundamentals of due process. The hearing officer may limit the total length of the hearing to one hour, and shall allow the appellant at least as much time to present its case as is allowed the City.

D. The appellant shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation. The City's case shall be presented by an Enforcement Officer or by any other authorized agent of the City. The appellant may be represented by counsel.

E. The failure of the appellant to appear at the hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies.

F. The administrative citation and any additional documents prepared by the City in connection with the violation(s) may be submitted by the Enforcement Officer and shall constitute prima facie evidence of the respective facts contained in those documents.

G. If the appellant so requests, the City shall provide to the appellant copies of all documents that it intends to introduce at the hearing within five days of the request. If, after copies of documents have been provided to appellant, the City determines to submit to the hearing officer additional documents then, whenever possible, a copy of such documents shall be provided to the appellant prior to the hearing.

H. The hearing officer may continue the hearing and request additional information from the Enforcement Officer or the appellant prior to issuing a written decision.

A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer may announce a decision orally, but in any event, shall prepare a written decision. The decision shall be provided to the parties within ten days of the hearing and shall either affirm the issuance of the citation as issued or dismiss the citation. The decision shall briefly state the reason for the conclusion of the hearing officer. The City shall serve the decision on the appellant in accordance with Section 1.10.040. The decision of the hearing officer shall be final.

B. If the hearing officer affirms the issuance of the administrative citation, then the deposit with the City shall be retained by the City. If a hardship waiver was granted, the decision shall set forth a payment schedule for the fine.

C. If the hearing officer dismisses the administrative citation, then the City shall promptly refund the deposit.

D. The hearing officer shall not have the power to reduce the fine.

A. The failure of any person to pay the civil fines imposed by an administrative citation within the time specified on the citation may result in the filing of a claim. In the court action, the City may also recover its collection costs, including the cost of the hearing officer, and any court fees, according to proof.

B. In lieu of, or in addition to, the filing of a court action, the City may impose a Code Enforcement Lien on the real property upon which the violation occurs. Any lien imposed pursuant to this Chapter shall attach upon the recordation of a Notice of Code Enforcement Lien in the Office of the County Recorder.

If the violation is corrected within a reasonable time after the decision of the hearing officer, the City Manager shall have the discretion to reduce any cumulative fines to a total of not less than $1,000.00 upon good cause shown by the Responsible Person. The determination of the City Manager shall be final and shall not be subject to appeal or judicial review. Fines shall not otherwise be reduced.

Any person who fails to pay a fine imposed by this Chapter on or before the date that payment is due, shall also be liable for the payment of a late payment charge of 50 percent of the fine.

Either the City or the appellant aggrieved by a decision of a hearing officer on an administrative citation may obtain review of the decision by filing a petition for review with the San Diego Superior Court in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4(b). Said procedure shall be available for all judicial review under this Chapter, notwithstanding that the term or condition being enforced pursuant to this Chapter may not be a matter covered by Section 53069.4(a). Judicial review of a citation shall not be available without first participating in a hearing as provided in this Chapter.

Failure to comply with any procedural requirement of this Chapter, to receive any notice or decision specified in this Chapter, or to receive any copy required to be provided by this Chapter shall not affect the validity of proceedings conducted hereunder unless the Responsible Person is denied constitutional due process thereby.

Nothing in this Chapter shall limit the City from pursuing a civil or criminal action based on violations of this Code.