Diamond Bar Municipal Code Ch. 1.04 Penalties and Civil Remedies

Footnotes:

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Editor's note— Ord. No. 13(1999), § 1, adopted Nov. 2, 1999, repealed ch. 1.04 and enacted a new chapter as set out herein. The former ch. 1.04 pertained to penalties, civil remedies and severability, and derived from the original codification.

Cross reference— Alarms systems, § 5.08.010 et seq.; emergency organization, § 8.00.010 et seq.; public peace, morals and welfare, tit. 9; vehicles and traffic, tit. 10.

No person shall violate any provision or fail to comply with any requirement or condition of this Code, or of any permit, license, approval or entitlement granted or issued pursuant to the provisions of this Code. Such violations are punishable as follows:

(a) Misdemeanor. Any person violating any provision or failing to comply with any requirement or condition of this Code, or of any permit, license, approval or entitlement granted or issued pursuant to the provisions of this Code, shall be guilty of a misdemeanor unless such violation or failure to comply is expressly designated in this Code as an infraction or is expressly subject to a civil administrative penalty pursuant to subsection (d) of this section. Any person convicted of a misdemeanor under the provisions of this Code shall be punishable by a fine of not more than $1,000.00 or by imprisonment in the county jail for a period not exceeding six months, or by both such fine and imprisonment. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of the same provision of this Code is committed, continued or permitted by such person, and shall be punished accordingly.

(b) Infraction. Any person violating any provision or failing to comply with any requirement or condition of this Code, or of any permit, license or entitlement granted or issued pursuant to the provisions of this Code expressly designated in this Code as an infraction shall be guilty of an infraction. Except as otherwise provided in this Code, any person convicted of an infraction shall by punishable by a fine of: (1) $100.00 for the first violation, (2) $200.00 for the second violation of the same provision of this Code within a 12-month period, and (3) $500.00 for a third or more violations of the same provision of this Code within a 12-month period. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of the same provision of this Code is committed, continued or permitted by such person, and shall be punished accordingly.

A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him or her unless he or she is arrested and not released on his or her written promise to appear, on his or her own recognizance, or a deposit of bail.

(c) Reclassification of offenses. A violation of this Code classified as a misdemeanor may be charged as an infraction when:

(1) The prosecutor files a complaint charging the offense as an infraction; or

(2) The court, on motion of the prosecutor and with the consent of the defendant, determines to treat a misdemeanor offense as an infraction, in which event the case will proceed as if the defendant had been arraigned on an infraction complaint.

(d) Code violations subject to civil administrative penalty procedure. The offenses described in the chapters and sections of this Code set forth below shall be subject to the civil administrative penalty procedure set forth in sections 1.04.030 through 1.04.190 of this Code:

UBC Section 3152B, Pool enclosure; Required Characteristics.

The provisions of the following Chapters of Title 6 (Animals):

Chapter 6.00 (General Provisions);

Chapter 6.08 (Dogs);

Chapter 6.12 (Cats);

Chapter 6.16 (Licenses for Animals Other than Dogs and Cats);

Chapter 6.20 (Animals Running at Large);

Chapter 6.24 (Impoundment); and

Chapter 6.28 (Feeding of Certain Rodents and Predator Animals).

8.12.1660, Prohibited storm water and pollution control activities.

10.12.140, Cleaning of sidewalks.

22.34.030(a), Storage in front yard/side yard abutting a street.

22.34.030(b), Vehicle parking.

22.34.030(c), Structure maintenance.

22.34.030(d), Landscape maintenance.

22.34.030(e), Fence and wall maintenance.

22.34.030(f), Temporary erosion control.

22.34.040(a), Storage in yards.

22.34.040(b), Storage in garages and carports.

22.34.040(c), Motor vehicle parking.

22.34.040(d), Structure maintenance.

22.34.040(e), Landscape maintenance.

22.34.040(f), Fence and wall maintenance.

22.34.040(g), Maintenance of parking and similar areas.

22.34.040(h), Temporary erosion control.

22.34.050(a), Storage in yards.

22.34.050(b), Motor vehicle parking.

22.34.050(c), Structure maintenance.

22.34.050(d), Landscape maintenance.

22.34.050(e), Fence and wall maintenance.

22.34.050(f), Temporary erosion control.

22.34.050(g), Maintenance of parking and similar areas.

22.34.060(a), Storage in yards.

22.34.060(b), Motor vehicle parking.

22.34.060(c), Structure maintenance.

22.34.060(d), Landscape maintenance.

22.34.060(e), Fence and wall maintenance.

22.34.060(f), Maintenance of parking and similar areas.

22.34.060(g), Temporary erosion control.

22.36.050(4), Temporary signs limited by size and period of display.

22.36.050(5), Temporary signs placed upon public property.

22.36.080, Prohibited signs.

Any person who is adjudicated to have violated or failed to comply with the same provision of any of the sections of this Code set forth above in this paragraph (d) more than three times within a 12-month period shall be guilty of a misdemeanor for each violation of the same provision committed thereafter within that same 12-month period. Any person who violates or fails to comply with any of the sections of this Code set forth in this paragraph (d) and who possesses no photo identification or refuses to identify himself/herself to an enforcement officer, making it impossible to issue an administrative citation, shall be guilty of a misdemeanor.

(e) Public nuisance. In addition to the penalty provisions set forth in paragraphs (a), (b), (c), and (d) of this section, any condition, use or activity caused or permitted to exist in violation of the provisions of this Code or in violation of any permit, license, approval or entitlement shall be deemed a public nuisance and may be abated by the city by any lawful means, including but not limited to administrative abatement proceedings, cost recovery proceedings pursuant to section 22.78.070, restraining order or injunction. Attorney's fees, expert fees, and court costs shall be awarded to the prevailing party in any action taken by the city to abate a public nuisance pursuant to this section and/or chapter 22.78 of this Code if, and only if, the city seeks the award of attorney's fees and court costs at the initiation of such legal action or proceeding. The attorney's fees recoverable pursuant to this section shall be limited to the reasonable attorney's fees incurred by the city in the legal action or proceeding, regardless of the actual cost of any party's attorney's fees.

(f) Prohibited acts. Whenever this Code makes any act or omission unlawful, that unlawful act or omission includes causing, permitting, maintaining, aiding, abetting, suffering or concealing that act or omission.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 1, 11-4-03; Ord. No. 08(2012), § 1, 5-1-12; Ord. No. 03(2016), § 1, 2-2-16)

The following words and phrases, when used in the context of this chapter, shall have the following meanings:

Enforcement official shall mean a person, who has Penal Code Citation Certification Training, designated by the city manager as an enforcement official or any member of the sheriff's department who is authorized to enforce the provisions of the Diamond Bar Municipal Code.

Legal interest shall mean any interest that is represented by a deed of trust, quitclaim deed, mortgage, judgement, lien, tax or assessment lien or other similar instrument, which is recorded with the county recorder.

Responsible person shall mean any person whom an enforcement official determines is responsible for causing or maintaining a violation of the Code. The term "responsible person" includes, but is not limited to, a property owner, tenant, person with a legal interest in real property, or person in possession of real property.

(Ord. No. 13(1999), § 1, 11-2-99)

Any violation of a section of this Code enumerated in section 1.04.010(d) shall be subject to issuance of an administrative citation by an enforcement official pursuant to the procedures set forth in this chapter. Administrative citations for violations of any provision of the building, plumbing or electrical codes enumerated in section 1.04.010(d) shall not be issued until after the responsible person has been provided notice and a reasonable opportunity to correct the violation, and has failed to do so. Payment of an administrative citation shall not bar further enforcement action by the city if the violation is not corrected or otherwise continues unabated. The city manager is authorized to promulgate procedural rules and regulations governing the civil administrative penalty citation and hearing process.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 2, 11-4-03)

An administrative citation shall contain all of the following information:

(a) The date and location of the violation and the approximate time the violation was observed.

(b) The code section violated and a description of how the section was violated.

(c) The amount of the fine imposed for the violation, and where and when the fine shall be paid.

(d) An order prohibiting another occurrence of the code violation.

(e) A description of the administrative citation review process, including the time within which to contest the administrative citation and the place from which to obtain a request for hearing form to contest the administrative citation.

(f) The name and signature of the citing enforcement official.

(g) The name and address of the responsible person, and a signature line so that the responsible person may acknowledge receipt of the citation.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 3, 11-4-03)

An enforcement official may issue an administrative citation, on a form approved by the city manager, to a responsible person, as follows:

(a) If the responsible person is an individual, the enforcement official shall attempt to locate the individual and issue to that individual an administrative citation, if the address of the individual is known to the city, a copy of the administrative citation also shall be mailed to the individual by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice shall be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(b) If the responsible person is a corporation, the enforcement official shall attempt to locate any one of the following individuals and issue to that individual an administrative citation: the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process in a civil action. If the office address of any of the above listed individuals is known to the city, a copy of the administrative citation also shall be mailed to one of those individuals by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice shall be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(c) If the responsible person is a business other than a corporation, the enforcement official shall attempt to locate the business owner and issue the business owner an administrative citation. If the enforcement official can locate only the manager of the business, the administrative citation may be given in the manager of the business. If the address of the business is known, a copy of the administrative citation also shall be mailed to that address to the attention of the business owner or a responsible person. The mailing shall be sent by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(d) The enforcement official shall attempt to obtain on the administrative citation the signature of the responsible person, or in cases in which the responsible person is a corporation or business, the signature of the person served with the administrative citation. If a responsible person or person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation or of subsequent proceedings.

(e) If the enforcement official is unable to locate a responsible person for the violation, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail, if a notice sent by certified mail in returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(f) If the enforcement official does not succeed in serving the responsible person personally, or by certified mail or regular mail, the enforcement official 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.

(g) If the enforcement official does not succeed in serving the responsible person personally, by certified mail or regular mail, and the city is not aware that the responsible person has a legal interest in any real property within the city, the enforcement official shall cause the administrative citation to be published once a week for four successive weeks in a local newspaper published at least once a week.

(Ord. No. 13(1999), § 1, 11-2-99)

The fine imposed pursuant to this article for a particular violation shall be in the amount set forth in the schedule of fines and penalties established by resolution of the city council. The schedule of fines and penalties shall specify the amount of any late payment charges imposed for failure to pay the fine by the due date.

(Ord. No. 13(1999), § 1, 11-2-99)

The administrative fine shall be paid to the city within 30 days from the date of service of the citation. Payment of the fine, in the absence of a timely request for a hearing pursuant to section 1.04.080, constitutes a waiver of the responsible party's right to an administrative hearing.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 4, 11-4-03)

Any responsible person to whom an administrative citation is issued may choose to contest the citation by requesting an administrative hearing within 30 days of service of the citation. In order to request a hearing, the responsible person shall submit in the manner directed on the citation a fully completed request for administrative hearing form along with either a deposit of the full amount of the administrative fine (in cash or by way of a negotiable check) or a notice that an advance deposit hardship waiver request has been filed pursuant to section 1.04.090. The request for hearing shall be incomplete if it does not include the deposit the full amount of the fine or the request for a hardship waiver. The deposit will be retained in a non-interest bearing account until the matter is resolved. If a timely and complete request for hearing is not submitted, the citation shall be deemed final, and the fine shall be immediately due and owing to the city and may be collected in any manner allowed by law for collection of a debt. Commencement of an action to collect the delinquent fine shall not preclude issuance of additional citations to the responsible party should the violation persist.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 5, 11-4-03)

Any responsible person who requests a hearing to contest an administrative citation and who is financially unable to deposit the administrative fine as required in section 1.04.070 may file a request for an advance deposit hardship waiver. The request shall be filed with the development services division on an advance deposit hardship waiver application form, available from the department, no later than ten days after service of the administrative citation. The city manager or his/her designee may issue an advance deposit hardship waiver only if the person requesting the waiver submits to the city manager or his/her designee a sworn affidavit, together with any supporting documents, demonstrating to the satisfaction of the city manager or his/her designee the person's financial inability to deposit with the city the full amount of the fine in advance of the hearing. Written proof of financial hardship, at a minimum must include tax returns, financial statements, bank account records, salary records or similar documentation demonstrating that the responsible person is unable to deposit the penalty. The city manager or his/her designee shall issue a written decision specifying the reasons for issuing or not issuing the waiver. The decision shall be final, and shall be served upon the person requesting the waiver by certified mail postage pre-paid return receipt requested and first class mail. If the city manager or his/her designee determines that the waiver is not warranted, the person shall remit the full amount of the fine as a deposit within ten days of mailing of the decision. If the full amount of the fine is not deposited within the ten-day period, the request for hearing shall be deemed incomplete and waived, and the citation shall be deemed final. The fine shall be immediately due and owing to the city and may be collected in any manner allowed by law for collection of a debt.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 6, 11-4-03)

Only after a request for hearing form is filed, and the responsible person requesting the hearing has either deposited the administrative fine in full or obtained an advance deposit hardship waiver, shall the city set the date and time for the administrative hearing. The hearing shall be set for a date not less than 15 days nor more than 60 days after the request for hearing form is filed, and the administrative fine is deposited with the city or an advance deposit hardship waiver is issued. The city shall send notice of the date, time, and place of the hearing to the person requesting the hearing by certified mail, return receipt requested at least ten days before the date of the hearing. Any documentation, other than the administrative citation, which the enforcement official has submitted or will submit to the hearing officer shall be sent to the person requesting the hearing by certified mail postage pre-paid return receipt requested and first class mail at least five days before the date on which the hearing is scheduled. The documentation shall also be made available upon request at the time of the hearing.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 7, 11-4-03)

The responsible person requesting a hearing may request one continuance, but in no event may the hearing begin later than 90 days after the request for hearing form is filed, and the administrative fine is deposited with the city or an advance deposit hardship waiver is issued.

(Ord. No. 13(1999), § 1, 11-2-99)

The hearing shall be conducted by an administrative hearing officer appointed by the city manager to perform such hearings.

(Ord. No. 13(1999), § 1, 11-2-99)

The responsible person may attend the hearing in person or in lieu of attending may submit written argument and documentation under penalty of perjury prior to the time scheduled for the hearing. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case and to cross-examine witnesses. The city bears the burden of proof at an administrative hearing to establish a violation of the City Code. The administrative citation and any additional reports submitted by the enforcement official shall constitute prima facie evidence of the facts contained in those documents. The administrative hearing officer must use a preponderance of evidence as the standard of evidence in deciding the issues.

(Ord. No. 13(1999), § 1, 11-2-99)

If the responsible person fails to attend the hearing or fails to submit arguments in writing, the administrative hearing officer will render a decision based on the documents that have been received and the responsible person will be deemed to have waived his/her right to an administrative hearing. Under those circumstances, the administrative hearing officer may request additional information from either the responsible person or the enforcement official as may be necessary to render a decision. If service of the administrative hearing is made by posting the citation on real property within the city in which the responsible person has a legal interest, and the responsible person provides verifiable and substantial evidence that removal of the administrative citation from the property by a third party caused the responsible person's failure to attend the scheduled hearing, the responsible person shall be entitled to an administrative hearing.

(Ord. No. 13(1999), § 1, 11-2-99)

At the conclusion of the hearing or within 30 days thereafter, the administrative hearing officer shall render a decision as follows:

(a) Determine that the violation for which the citation was issued occurred, and impose a fine in the amount set forth in the fine and penalty schedule, and if the violation has not been corrected as of the date of the hearing, order correction or abatement of the violation. In this event, the city shall retain the fine deposited by the responsible person.

(b) Determine that the violation for which the citation was issued occurred, but that the responsible party has introduced credible evidence of mitigating circumstances warranting imposition of a lesser fine than that prescribed in the fine and penalty schedule, or no fine at all, and impose such lesser fine, if any; and if the violation has not been corrected as of the date of the hearing, order correction or abatement of the violation. In this event, the city shall retain all or a portion of the fine deposited by the responsible person as applicable.

(c) Determine that the violation for which the citation was issued did not occur or that the condition did not constitute a violation of the Municipal Code. In this event, the city shall refund the deposit, if any, within 15 days of the decision.

The administrative hearing officer's decision shall be in writing, shall explain the basis for the decision, and shall be served upon the responsible party by certified mail postage pre-paid return receipt requested and first class mail first class mail, to the address stated on the request for hearing form. If applicable, the order shall set forth the date by which compliance shall be achieved and the imposed fine paid to the city. The order shall be final on the date of mailing, which shall be deemed the "date of service," and shall notify the responsible person of the right to appeal to the superior court, as further described in Section 1.04.160.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 8, 11-4-03)

Within 20 days after service of the decision of the administrative hearing officer upon the responsible person, he/she may seek review of the decision by filing a notice of appeal with the superior court. The responsible person shall serve upon the city clerk either in person or by first class mail a copy of the notice of appeal. If the responsible person fails to timely file a notice of appeal, the administrative hearing officer's decision shall be deemed final.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 9, 11-4-03)

Any person who fails to pay to the city on or before the due date an administrative fine imposed pursuant to the provisions of this chapter, shall be liable for the payment of any applicable late payment charges set forth in the schedule of fines and penalties established by resolution of the city council.

(Ord. No. 13(1999), § 1, 11-2-99)

The city may collect any past-due administrative fine or late payment charges by use of any available legal means.

(Ord. No. 13(1999), § 1, 11-2-99)

In the absence of a timely appeal to the superior court, failure to comply with a final administrative order directing the abatement of a continuing violation by the date specified in the order is a misdemeanor offense for each day thereafter, or any portion thereof, that the violation is maintained or permitted. In the event of a timely appeal to the superior court pursuant to section 1.04.160, and provided the city prevails thereon, the responsible person shall be guilty of a misdemeanor offense for each day, or any portion thereof, that a continuing violation is maintained or permitted after a court ordered abatement date. Filing a misdemeanor action does not preclude the city from pursuing any other remedies to gain compliance provided in this Code or under state law. For purposes of this chapter, a "continuing violation" shall mean a single, ongoing condition or activity in violation of the Municipal Code.

(Ord. No. 13(1999), § 1, 11-2-99; Ord. No. 04(2003), § 10, 11-4-03)