Delano Municipal Code Ch. 1.08 Code Enforcement

The council finds that the enforcement of the Municipal Code and applicable state codes throughout the city is an important public service. Code enforcement is vital to protection of the public's health, safety and quality of life. The council recognizes that enforcement starts with the drafting of precise regulations that can be effectively applied in administrative enforcement hearings and judicial proceedings. The council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with code regulations. Failure to comply with an administrative code enforcement action may require the city attorney to file a judicial action to gain compliance.

(Ord. 1016 Exh. A(part), 1998).

The city manager, the chief of police or any of their designated code enforcement officials (collectively known as "code enforcement officials") have the authority and powers necessary to gain compliance with the provisions of the Municipal Code and applicable state codes. These powers include the power to issue notices of violation and field citations, inspect public and private property and use whatever judicial and administrative remedies are available under the Municipal Code or applicable state codes.

(Ord. 1016 Exh. A(part), 1998).

Whenever a code enforcement official determines that a violation of the Municipal Code or applicable state codes exists, the code enforcement official may issue a notice of violation citation to the responsible person(s). The notice of violation citation shall include the following information:

A. The name of the property's record owner;

B. Street address;

C. The code sections in violation;

D. A description of the property's condition which violates the applicable codes;

E. A list of necessary corrections to bring the property into compliance;

F. A deadline or specific date to abate and correct the code violations listed in the notice of violation citation;

G. Reference to the potential consequences should the property remain in violation after the expiration of the compliance deadline including, but not limited to: criminal prosecution, civil injunction, administrative abatement, civil penalties, revocation of permits, recordation of the notice of violation citation and withholding of future municipal permits.

(Ord. 1016 Exh. A(part), 1998).

A code enforcement official is authorized to enter upon any property or premises to ascertain whether the provisions of the Municipal Code or applicable state codes are being obeyed, and to make any examinations and surveys as may be necessary in the performance of their enforcement duties. These may include the taking of photographs, samples or other physical evidence. All inspections, entries, examinations and surveys shall be done in a reasonable manner and in accordance with laws and regulations related to same. If an owner, occupant or agent refuses permission to enter or inspect, the code enforcement official may seek an administrative inspection warrant pursuant to the procedures provided for in California Code of Civil Procedure Sections 1822.5 through 1822.59.

(Ord. 1016 Exh. A(part), 1998).

A code enforcement official is authorized to arrest without a warrant any person whenever the code enforcement official has reasonable cause to believe that the person has committed a violation of the Municipal Code or applicable state codes in his or her presence. Pursuant to Penal Code Section 836.5, the code enforcement official can only arrest a person by issuing a misdemeanor field citation.

(Ord. 1016 Exh. A(part), 1998).

It is unlawful for any person to violate any provision or to fail to comply with any of the requirements of this Code. A violation of any of the provisions or failing to comply with any of the mandatory requirements of this Code shall constitute a misdemeanor; except that notwithstanding any other provision of this Code, any such violation constituting a misdemeanor under this Code may, in the discretion of the city attorney or district attorney, be charged and prosecuted as an infraction; and, with the further exception that any violation of the provisions relating to parking, operation of bicycles, operation of motor vehicles, and use of freeways, highways and streets by animals, bicycles, motor vehicles or pedestrians shall constitute an infraction or civil violation. Any person convicted of a misdemeanor under the provisions of this Code, unless provision is otherwise herein made, shall be punishable by a fine of not more than one thousand dollars or by imprisonment in the county jail for a period of not more than six months or by both fine and imprisonment. Any person convicted of an infraction under the provisions of this Code, unless provision is otherwise herein made, shall be punishable by fine only as follows: upon a first conviction, by a fine of not exceeding two hundred fifty dollars and for a second conviction or any subsequent conviction within a period of one year, by a fine of not exceeding five hundred dollars.

Each such person shall be charged with a separate offense for each and every day during any portion of which any violation of any provision of this Code is committed, continued or permitted by such person and shall, upon conviction, be punished accordingly.

(Ord. 1016 Exh. A(part), 1998).

A. In addition to any other remedy provided by this Code, any provision of this Code may be enforced by injunction issued by the superior court upon a suit brought by the city.

B. As part of a civil action filed to enforce provisions of this Code, a court may assess a maximum civil penalty of two thousand five hundred dollars per violation of the Municipal Code for each day during which any person commits, continues, allows or maintains a violation of any provision of this Code.

(Ord. 1016 Exh. A(part), 1998).

In addition to the penalties provided in this chapter, any condition caused or permitted to exist in violation of this Code, or any code adopted herein by reference, is deemed a public nuisance and may be abated as such by the city in any manner provided by law or in this Code for the abatement of a nuisance.

(Ord. No. 2020-1319, § 3(Exh. A), 10-5-2020)

As part of any court action, the city has the authority to require a responsible person to post a performance bond to ensure compliance with the Municipal Code, applicable state codes or any judicial action.

(Ord. 1016 Exh. A(part), 1998).

Pursuant to California Government Code Section 38773, the city has the authority to judicially abate public nuisances by filing criminal or civil actions. The city also has the authority to make the expense of abatement of the nuisance a special assessment, or a lien against the property on which it is maintained and a personal obligation against the property owner, in accordance with California Government Code Section 38773.1 or 38773.5.

(Ord. 1016 Exh. A(part), 1998).

Pursuant to California Government Code Section 38773.7, upon the entry of a second or subsequent civil or criminal judgment within a two-year period that finds an owner of property responsible for a condition that may be abated in accordance with California Government Code Section 38773.5, a court may order the owner to pay treble the costs of the abatement. These costs shall not include conditions abated pursuant to Section 17980 of the California Health and Safety Code.

(Ord. 1016 Exh. A(part), 1998).

It shall be the duty of the planning department of the city to prepare a zone map of the city specifically outlining thereon the various districts brought within the zones herein outlined. Each zoning district within the city shall be identified by an appropriate distinct mapping symbol, and shall clearly delineate the boundaries of each specific zoning district. The map shall contain a legend outlining in general terms the types of land uses allowed in each zoning district, and the map legend shall also provide zoning ordinance section references which outline specific uses and restrictions in each zoning district. The zone map shall clearly identify all areas of the city wherein industrial, commercial, residential, and special uses are intended and allowed.

(Ord. 1016 Exh. A(part), 1998).

In accordance with authority outlined in Section 65850 of the Government Code, and whenever the public health, safety, convenience, necessity, general welfare, and good zoning practice justifies such action, and after due consideration, report, and public hearing on the same by the planning commission, the city council may, by ordinance include or place a property within the city into any zone as established, created and defined by ordinance or in the Delano Municipal Code.

(Ord. 1016 Exh. A(part), 1998).

A. Enforcement Authority. The community enforcement development director ("director") and the code enforcement officials of the community development department ("department") are authorized and directed to administrate, and enforce the provisions of this chapter. The director shall coordinate and develop procedures and programs for the consistent and uniform enforcement of this chapter. The director and any code enforcement official of the department may exercise any enforcement powers as set forth in this Code. The director may also develop regulations reasonably necessary to implement the intent and provisions of this chapter.

B. General Prohibitions and Enforcement Remedies. It is unlawful for any person to violate the provisions of this chapter in the following manner:

1. To erect, place, construct, reconstruct, convert, establish, alter, maintain, use or enlarge any building, structure, improvement, lot or premises in any manner contrary to any provision contained in this chapter; or

2. To do any act without any required permit, or contrary to the permit conditions which may have been issued pursuant to this Code; or

3. To do any act or construct or maintain any structure, use, or improvement without a variance, conditional use permit, or building permit as required by this Code, or contrary to any condition or conditions imposed on the property by variance, conditional use permit, or building permit issued according to the provisions of this Code.

Violations of this chapter may be prosecuted as misdemeanors subject to the fines and custody as provided in the Municipal Code. The director or code enforcement official may also seek injunctive relief and civil penalties in the superior or municipal court or pursue any administrative remedy provided in this Code.

C. Property Owner's Responsibility and Strict Liability Violations. It is unlawful for property owners to maintain or use, or allow to be maintained or used, their real property and appurtenances in violation of any provision of this chapter. Violations of this chapter shall be treated as strict liability offenses regardless of intent.

D. Restoration and Mitigation. The director and code enforcement official, in addition to other remedies provided in this Code, may order the reasonable restoration of a building premises and any adjacent and affected site to its lawful condition or require reasonable mitigation. These requirements can be attached as conditions to applicable permits or enforcement actions and orders as appropriate.

1. Any restoration or mitigation imposed by the director shall be at the sole cost of the responsible person.

2. Mitigation may be appropriate where the director determines that restoration of the building, premises or adjacent site to its lawful condition is not feasible or that irreparable damage has been done to a structure, environmentally sensitive area or habitat or historic structure.

3. Mitigation may include the purchase or exchange of like-kind real property and structures of a similar or greater quality and value.

4. The director may require a combination of restoration and mitigation of the building or premises depending upon the circumstances.

5. The director may promulgate additional administrative guidelines and regulations to implement and clarify the authority to require restoration and mitigation.

E. Invalid Permits. Whenever the director determines that a previously issued permit or license violates this chapter or any other provision of the Municipal Code or applicable state codes, the director shall have the authority to invalidate the previously issued permit or license.

(Ord. 1016 Exh. A(part), 1998).

Pursuant to Government Code Section 38773.5, in any action, administrative proceeding, or special proceeding brought to abate a public nuisance, the prevailing party will be entitled to recover attorneys' fees; provided, that attorneys' fees will only be available in those actions or proceedings in which the city has provided notice at the commencement of such action or proceeding that it intends to seek and recover its own attorneys' fees. In no action or proceeding shall an award of attorneys' fees exceed the amount of reasonable attorneys' fees incurred by the city in the action or proceeding.

(Ord. No. 2017-1293, § 3, 10-16-2017)

The citation provisions in this chapter shall supersede and control over any conflicting citation provisions found elsewhere in the Delano Municipal Code. This chapter provides the City of Delano with the authority to issue administrative citations to address violations of the Delano Municipal Code. Use of this remedy shall be cumulative to any other remedy and shall not preclude the use of any other remedy provided in this Code or other applicable law.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. Words used in the masculine (such as "he" or "his") shall be construed as gender neutral and shall include the female.

B. Reference to "day(s)" means calendar days, unless otherwise stated. The time in which to perform an act under this chapter is computed by excluding the first day and including the last, unless the last day is Saturday, Sunday, or state holiday. If the last day for the performance of any act under this chapter falls on a Saturday, Sunday or state holiday, then the period to perform the act is extended to and includes the next day which is not a Saturday, Sunday or state holiday.

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

1. "City manager" means the city manager of the City of Delano or his or her designated representative.

2. "Enforcement officer" means any person authorized to enforce violations of the Municipal Code.

3. "Hearing officer" means any person appointed by the city manager to preside over the administrative hearings provided for by this chapter.

4. "Person" means any natural person, firm, association, business, trust, organization, corporation, partnership, company or any entity.

5. "Responsible party" means any person who is responsible for violating the provisions of the Municipal Code.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. Any person violating any provision of the Municipal Code may be issued an administrative citation.

B. Each violation of any provision of the Municipal Code that exists constitutes a separate and distinct offense. Each section of the Municipal Code violated constitutes a separate violation for any day at issue.

C. A fine for violations of the Municipal Code may be assessed by means of an administrative citation issued by the enforcement officer and shall be payable to the city.

D. Administrative fines assessed by means of an administrative citation shall be collected in accordance with the procedures specified in this chapter.

E. Upon discovering or observing any violation of the Municipal Code, the enforcement officer shall determine the party responsible for the violation.

(Ord. No. 2013-1268, § 3, 10-21-2013)

Administrative citations may be issued to the person(s) responsible on forms approved by the city attorney. Each citation shall contain, at a minimum, the following information:

A. The name of the responsible person(s) to whom the citation is issued;

B. The address or location where the violation occurred;

C. The section(s) of this Code or other ordinance, statute, regulation, or law violated;

D. The action constituting each violation(s), the date of each violation(s), and any partial compliance noted;

E. The manner and date by which either (a) compliance must be achieved and verified by re-inspection for each violation, and/or (b) administrative fine(s) and/or continuing fines stated in the citation take effect;

F. The amount of the administrative fine(s);

G. The date that payment of the fine is due;

H. The form of payment and location for paying the administrative fine;

I. The manner of requesting a re-inspection to verify compliance by the compliance deadline(s) in the citation;

J. The title of "administrative citation";

K. A statement advising that the person(s) listed on the citation are responsible for all costs incurred by the city for any abatement hearing;

L. A statement advising that, pursuant to the Government Code Section 38773.5, the city intends to seek recovery of attorney's fees incurred in any hearing to abate a nuisance, and that attorney's fees may be recovered by the prevailing party;

M. A telephone number at which the city may be contacted pursuant to this Code.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. The administrative citation shall be served upon the responsible person(s) by personal delivery or by certified mail, return receipt requested, to the last known address of the person(s) responsible. If the person(s) responsible is not present for the personal delivery, if certified mail is refused, or the location of the person(s) responsible cannot be determined after diligent efforts, the administrative citation may be served by posting a copy in a conspicuous place on the affected property and by mailing a copy by first class mail to the last known address. In the event posting is not possible, alternative service may be accomplished by publication of a copy of the administrative citation and/or notice of the citation in a newspaper of general circulation that is most likely to give actual notice to the responsible person(s) twice in a ten-day period and by mailing a copy of the administrative citation by first class mail to the last known address within the ten-day period. If the administrative citation alleges a nuisance, the provisions of Title 1 shall apply over any conflicting provisions of this section.

B. Notwithstanding any law to the contrary, service shall be deemed complete and the time period for any compliance shall commence as follows:

1. If service is by personal service, on the date the personal service is accomplished;

2. If service is by certified mail, on the date that the person receiving the certified mail signs the certified mail receipt; if the certified mail is sent to the property owner at the address identified in the latest equalized tax roll and is signed for at that address, there shall be a rebuttable presumption that the responsible person received the notice;

3. If service is by posting, ten days after the notice is posted;

4. If service is by publication, upon the date of the second publication.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. In lieu of filing an administrative appeal of the citation as provided in Section 1.08.210, the recipient(s) of an administrative citation may, within twenty-four hours of the issuance date stated on the citation, contact the city at the number provided on the citation to schedule a meeting with city staff for a department-level resolution of the alleged violation(s). The meeting must be held within ten days of the date of issuance noted on the citation, and must be held between the hours of 8:00 a.m. and 5:00 p.m. at the City of Delano City Hall. The City of Delano shall provide staff available for one meeting for this purpose within the ten-day time period.

B. At the conclusion of the meeting, the city may issue an extension of the time to cure the violation and/or pay the fine set forth in the administrative citation only if the extension contains an agreement, signed by an authorized city representative and citation recipient(s) stating the following: (1) the specific means, schedule and completion dates for each step of the abatement process for each violation; (2) the date(s) for city re-inspection to confirm abatement of each violation to the city's satisfaction; (3) the fines that shall accrue upon failure to meet each of those new deadlines; and (4) a statement that the citation recipient acknowledges forfeiture of the right to appeal the underlying administrative citation and does not contest the alleged violations. The signed extension to the administrative citation shall contain all elements of a citation as required by Section 1.08.180 of this chapter.

C. The citation recipient may reschedule the meeting once. Upon the second absence, the original administrative citation deadlines shall again be effective, and compliance is required.

D. If the recipient does not comply with the terms of the extension, the city may enforce compliance by using applicable criminal and civil remedies provided in applicable law. Available remedies may include, but are not limited to, referring the citation fines to a collection agency and/or filing an action against the recipient in the state court for abatement and collection of fines.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. An administrative citation issued pursuant to this chapter may be appealed in writing with the city clerk's office (located at 1015 11th Ave., Delano, California), within ten calendar days of service of the notice. Any appeal must be received by the city clerk's office before the close of business on the tenth calendar day. No fee is due for the filing of an appeal.

B. Any written appeal must contain the full name, address, and contact information for the person seeking the appeal, identify the administrative citation that is appealed, and a brief description of the basis for appeal.

C. A hearing before a hearing officer will be set for a date that is not less than fifteen, nor more than sixty days from the date the request for hearing is received by the city clerk's office. The person requesting the hearing will be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

D. The hearing officer will only consider evidence that is relevant to whether the violation(s) occurred and whether the citee caused or maintained the violation(s) of this code on the date(s) specified in the administrative citation.

E. The person contesting the administrative citation will be given the opportunity to testify, present witnesses, and present relevant evidence concerning the charges set forth in the administrative citation.

F. The failure of any citee to appear at the administrative citation hearing will constitute a waiver of that person to contest the administrative citation and the fine, and may be considered a failure to exhaust their administrative remedies.

G. The administrative citation and any additional documents submitted by the enforcement officer will constitute prima facie evidence of the respective facts contained in those documents.

H. Neither the enforcement officer nor any other representative of the city will be required to attend the hearing, nor will the hearing officer require that there be submitted any evidence, other than the citation, that may exist among the public records of the city on the violation. However, any such appearance or submission may be made at the discretion of the enforcement officer or any city employee or agent.

I. At least ten days prior to the hearing, the citee must be provided with copies of the citations, reports, and other documents submitted or relied upon by the enforcement officer. No other discovery is permitted and formal rules of evidence will not apply.

J. If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, then a copy of this report also must be served by mail on the citee requesting the hearing at least five days prior to the date of the hearing. The hearing officer may continue the hearing and request additional information from the enforcement officer or the citee prior to issuing a written decision.

K. After considering all of the testimony and evidence submitted at the hearing, the hearing officer will issue a written decision to uphold, modify or revoke the administrative citation and will list the reasons in the decision. The decision of the hearing officer will be final.

L. If the decision is to uphold the citation, all fines are due according to Section 1.08.240. If the decision is to revoke the citation, then the city will refund any applicable fines paid by the citee within thirty days of the service of the decision.

M. The citee must be served with a copy of the hearing officer's written decision within twenty days from the date of the hearing.

N. Any person aggrieved by a decision of the hearing officer on an administrative citation may obtain review of the administrative decision by filing a petition for review with the appropriate Kern County Superior Court in accordance with the timelines and provisions set forth in Government Code Section 53069.4

(Ord. No. 2013-1268, § 3, 10-21-2013; Ord. No. 2017-1291, § 3, 8-21-2017)

Failure to file a valid and timely appeal shall constitute an admission to the violations stated in any administrative citation and acceptance of the fines accrued and accruing there under. The administrative citation then shall become an order to comply and shall be recorded with the Kern County Recorder's Office.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. Unless a different fine or penalty is specifically set forth by a specific code section, for any violation of any City Code section not identified herein, the following fine schedule shall apply, which fine may be imposed by the city department having jurisdiction over the subject matter of the violation: First administrative citation fine is one hundred dollars per violation; second administrative citation fine for the same violation(s) on the same property within one year of the first violation is five hundred dollars per violation; third and any subsequent administrative citation fine for the same violation(s) on the same property within one year of the first violation is one thousand dollars per violation. If a violation classified as an infraction under the Code, the first administrative citation fine is one hundred dollars per violation; second administrative citation fine for the same violation(s) on the same property within one year of the first violation is two hundred dollars per violation; third and any subsequent administrative citation fine for the same violation(s) on the same property within one year of the first violation is five hundred dollars per violation, as set forth in subdivision (b) of section 25132 and subdivision (b) of section 36900 of the California Government Code.

B. Notwithstanding any other provision of law, a violation of local building and safety codes determined to be an infraction is punishable by a first administrative citation fine of one hundred dollars per violation; second administrative citation fine for the same violation(s) on the same property within one year of the first violation is five hundred dollars per violation; third administrative citation for the same violation(s) on the same property within one year of the first violation is one thousand dollars per violation.

C. Administrative citation fines which have been paid shall be refunded if it is determined as a result of the hearing that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation.

D. Payment of the fine under this chapter shall not excuse full compliance with the Delano Municipal Code and abatement of the underlying violation, nor excuse any continuation or repeated occurrence of the code violation that is the subject of the administrative citation.

(Ord. No. 2013-1268, § 3, 10-21-2013; Ord. No. 2020-1319, § 4(Exh. A), 10-5-2020)

Fines authorized by this chapter shall be imposed and shall be due and payable as follows:

A. Within thirty days of the date of the notice of the violation and no request for administrative appeal hearing has been received by the appeal deadline and there has been no judicial review requested pursuant to Government Code Section 53069.4. The citation shall specify the due date for payment.

B. If an administrative appeal hearing is requested or if judicial review is sought pursuant to Government Code Section 53069.4, the fine shall be due as follows:

1. If an administrative appeal hearing is requested, and a fine is imposed following the appeal hearing, the fine is due upon the date indicated by the decision of the appeals hearing officer;

2. If an administrative appeal hearing is requested, and the appealing party fails to appear for the appeal hearing, the fine is due upon the date specified by paragraph A above or the date of the appeals hearing, whichever is later; or

3. If judicial review is requested pursuant to Government Code Section 53069.4, upon determination by the court that the fine is proper.

(Ord. No. 2013-1268, § 3, 10-21-2013)

Fines shall be collected by the finance department and shall be credited to accounts as determined by the department(s) that was involved with the administrative citation.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A fine not paid within thirty days of its due date shall be deemed to be delinquent and shall be considered to be a debt to the city. The fine may be collected by any methods used to collect civil debts due and owing to the city, including, but not limited to, reference to collection service or agency or initiation of a civil action. The city may add penalties and interest as authorized by city council resolution.

(Ord. No. 2013-1268, § 3, 10-21-2013)

If the city has commenced procedures for the abatement of nuisances at the property which is subject of the administrative citation, and if costs of abatement are placed as a lien against the real property, the administrative fine amount may be added to the abatement costs which are secured by the lien.

(Ord. No. 2013-1268, § 3, 10-21-2013)

After an order of the administrative hearing officer made pursuant to this Code shall have become final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. The order shall also be recorded with the Kern County Recorder. A release shall not be issued until compliance with the order has been completed.

(Ord. No. 2013-1268, § 3, 10-21-2013)

If, after an order of the administrative hearing officer made pursuant to this Code becoming final, the person to whom such order is directed shall fail, neglect or refuse to obey such order, or fail to complete the required work, the department head of the department initiating the enforcement action may institute any appropriate action to abate such conditions on the subject premises which constitute a public nuisance as authorized by Title 1 of the Municipal Code.

(Ord. No. 2013-1268, § 3, 10-21-2013)

A. If the fines imposed under this chapter are not paid within the time specified in Section 1.08.240, such fines shall be assessed against the parcel of land pursuant to Government Code Section 38773.5, and shall be transmitted to the tax collector for collection and shall be subject to the same penalties and procedures and sale in the case of delinquency as provided for ad valorem taxes.

B. If subsequent to service of the administrative citation and prior to transmittal of the notice of unpaid costs to the tax collector for collection as set for in subsection A of this section, the property subject to the notice of violation is sold, or title otherwise transferred to a bona fide purchaser, said costs shall be the responsibility of the owner of record as the date said notice of violation was placed in the United States postal system or posted on the property.

C. In addition to assessing the unpaid costs as provided in subsection A herein, the tax collector or his designated representative may pursue any remedy provided by law for collection of the unpaid costs.

(Ord. No. 2013-1268, § 3, 10-21-2013)

Pursuant to Government Code Section 38773.7 upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner or person described in Government Code Section 38772(d)(3) is responsible for a condition that may be abated pursuant to Government Code Section 38773.7, a court may order that person to pay treble the costs of abatement.

(Ord. No. 2013-1268, § 3, 10-21-2013)