El Centro Municipal Code Art. XI Administrative Remedies

(a) This article shall be cited as the "administrative remedies ordinance."

(b) The council finds there is a need for an alternative method of enforcing violations of this Code. The ordinance codified in this article is intended to increase compliance and to establish a more efficient cost-recovery program for code enforcement for the city. The council finds an appropriate method of enforcement is an administrative citation.

(c) This article provides for administrative citations which are in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this Code.

(Ord. No. 10-09, § 1, 9-7-10)

For purposes of this article, the following terms, whenever used, shall be construed as defined in this section:

Administrative processing agency shall mean the public agency or entity responsible for administering the administrative remedies ordinance, administrative citation, and appeals thereto.

Declaration of service shall mean a declaration under penalty of perjury made by a person mailing an administrative citation, or other document as prescribed by the administrative processing agency, showing the date and manner of service by mail and reciting the name and address of the citation addressee.

Enforcement officer shall mean any person identified in section 18-206 of this Code.

Hearing officer shall mean an attorney, including but not limited to attorneys from the city attorney's office, or other designee appointed by the city manager to conduct hearings for administrative citation appeals.

Responsible party shall mean any of the following:

(1) The person whose conduct caused the violation;

(2) The person who is in immediate control of the premises or activity which constitutes a violation of this Code;

(3) The business owner; or

(4) The property owner.

(Ord. No. 10-09, § 1, 9-7-10)

Any person violating any provision of this Code may be issued an administrative citation by an enforcement officer as provided in section 18-206 and 18-207 of this Code. The city manager shall establish all appropriate administrative regulations for implementing this article, conducting hearings and rendering decisions pursuant to this article.

(Ord. No. 10-09, § 1, 9-7-10)

The administrative citation process set forth in this article shall apply to all provisions of this Code, including, but not limited to, provisions for which the council has prescribed a civil penalty.

(Ord. No. 10-09, § 1, 9-7-10)

(a) Each section of this Code violated is a separate violation for any day at issue. If a violation poses an immediate danger to health or safety, an administrative citation may be issued for each day the violation exists. If a warning notice is provided pursuant to section 18-305 hereinafter, an administrative citation given subsequent to the warning notice shall not be given prior to the date allowed for the responsible party to correct or otherwise remedy the violation.

(b) A civil penalty for violations of this Code shall be payable directly to the city.

(c) Civil penalties assessed by means of an administrative citation shall be collected in accordance with the procedures specified in this article.

(Ord. No. 10-09, § 1, 9-7-10)

(a) A warning notice shall be provided to a person responsible for a violation of the building, plumbing, electrical or other similar structural or zoning Code pursuant to subsection (a)(2) of section 53069.4 of the California Government Code, that does not create an immediate danger to health or safety. If any violation poses an immediate danger to health or safety, an administrative citation may be issued, without a warning notice, pursuant to this article. A warning notice may be provided to any person violating any other provision of this Code.

(b) A warning notice shall contain the following information:

(1) Substantially similar information to that specified in section 18-307 of this article;

(2) Description of corrective action where appropriate; and

(3) A statement requiring immediate correction of the violation(s) (where appropriate) and an explanation of the consequences for failure to correct the violation(s).

(c) An enforcement officer shall assign a specific reasonable period of time to correct or otherwise remedy each violation prior to the imposition of an administrative citation. Not less than five (5) calendar days and no more than thirty (30) calendar days notice, except as otherwise recommended by the enforcement officer, shall be allowed from the date of the warning notice for the party to correct or otherwise remedy the violation before an administrative citation may be issued. An enforcement officer may consider the cost of abatement or correction, the time required to obtain permits for correction, the time needed to obtain estimates, drawings and contracts for correction, the time necessary for construction, the time required for physical relocation of personal property, the time needed to relocate tenants, and the time required to review submittals in determining the reasonable warning period to be assigned for each violation.

(d) An enforcement officer shall determine whether there has been compliance by inspecting the premises where the violation allegedly occurred immediately after the compliance deadline on the warning notice.

(e) Where compliance has not occurred before the compliance deadline set forth in the warning notice, an enforcement officer may issue an administrative citation pursuant to section 18-306 of this article. If an enforcement officer determines that the responsible party has made a reasonable good-faith attempt to correct the violation, the enforcement officer may extend the date for compliance.

(Ord. No. 10-09, § 1, 9-7-10)

Upon a proper showing of any violation of this Code, an enforcement officer may serve an administrative citation on the responsible party as herein provided.

(1) An enforcement officer shall identify the responsible party. Once a responsible party for the violation is identified, an enforcement officer may obtain the signature of that person on the administrative citation to establish personal service of the citation.

(2) If a responsible party is not located, refuses or otherwise fails to sign the administrative citation, the lack of signature shall in no way affect the validity of the citation and proceedings and the enforcement officer shall serve the citation as otherwise provided herein.

(3) An enforcement officer may post the citation by affixing a copy of the administrative citation in a conspicuous place on the surface of the property whenever the violation is connected to a condition of real property and/or poses a risk to the public health or safety. Conspicuous posting of a copy of the administrative citation is not required when personal service is accomplished or when conspicuous posting poses a hardship. Failure of a posted copy of the administrative citation to remain in place after posting shall in no way affect the validity of the administrative citation or the proceeding.

(4) If an enforcement officer is unable to locate a responsible party, or such responsible party refuses or otherwise fails to sign for the violation, the administrative citation shall be served on a responsible party as follows:

a. The administrative citation shall be mailed to a responsible party by U.S. First Class mail, postage prepaid, with a declaration of service.

b. The failure of any responsible party to receive a properly addressed citation shall not affect the validity of any proceeding under this article.

c. Service of an administrative citation in the manner described in this subsection (4) shall be effective on the date of mailing.

(Ord. No. 10-09, § 1, 9-7-10)

Each administrative citation shall contain the following information:

(1) Date and location of the violation(s) and the approximate time the violation(s) was(were) observed, identifying markings if any (i.e. name brand, serial number, color or other description);

(2) Section(s) of this Code violated and a brief description of how the section(s) was (were) violated;

(3) Amount of civil penalty imposed for violation(s) and the additional penalties for late payment;

(4) Explanation of the applicable time limits, the penalty payment procedure and the consequences for failure to pay the fine;

(5) A description of the administrative citation review process, including the time within which the administrative citation may be appealed pursuant to section 18-310 of this article and the place from which a notice of appeal form to contest the administrative citation may be obtained;

(6) The time within which another administrative citation for the same violation may be issued; and

(7) The name and signature of the citing enforcement officer.

(Ord. No. 10-09, § 1, 9-7-10)

(a) The amount of the fines for criminal or administrative Code violations imposed pursuant to this article, except as otherwise provided in this Code, shall be those set forth and referenced in the Imperial County Judicial District Bail Schedule, by resolution of the council, or by designation through city ordinance. Any and all changes, modifications, or alterations regarding the amount of fines set forth in the Imperial County Judicial District Bail Schedule shall be adopted and incorporated by the city as though fully set forth herein. The total amount of the fine, as set forth in the Imperial County Judicial District Bail Schedule, shall be paid entirely to the city and deposited entirely in the city's general fund.

(b) If the responsible party fails to correct the violation(s) pursuant to subsection (6) of section 18-307 hereinabove, a subsequent administrative citation may be issued for the same violation(s). The amount of subsequent penalties shall increase at a rate specified in this section.

(c) Where the violation would otherwise be an infraction under this Code, the administrative fine or penalty shall not exceed the maximum fine or penalty for infractions set forth in subsection (b) of section 36900 of the California Government Code. Every violation determined to be an infraction pursuant to this Code may be punishable by a fine in the following amounts:

(1) First administrative citation: The amount imposed by subsection (a) hereinabove, but not more than one hundred dollars ($100.00).

(2) Second administrative citation within one year for violation of the same Code section: Two (2) times the amount imposed by subsection (a) hereinabove, but not more than two hundred dollars ($200.00).

(3) Third or subsequent administrative citation within one (1) year for violation of the same Code section: Five (5) times the amount imposed by subsection (a) hereinabove, but not more than five hundred dollars ($500.00).

(d) Where a violation under this Code is determined to be a misdemeanor, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts set forth in section 36901 of the California Government Code and section 18-209 of this Code, except that the total administrative fine shall not exceed one thousand dollars ($1,000.00) exclusive of administrative costs, interest and reimbursement for compliance inspections.

(Ord. No. 10-09, § 1, 9-7-10)

(a) The fine shall be paid to the city within thirty (30) days from the date of the administrative citation, regardless of whether the citation is being reviewed or appealed.

(b) Payment of the fine shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city.

(c) Any administrative citation fine paid pursuant to this section shall be refunded if it is determined, after an administrative hearing, that the person charged in the administrative citation was not the responsible party for the violation or that there was no violation as charged in the administrative citation.

(d) Payment of an administrative fine under this article shall not excuse or discharge any continuation or repeated occurrence of the Code violation that is the subject of the administrative citation.

(e) The failure of any responsible party to pay a penalty assessed by an administrative citation within the time specified on the citation shall result in the assessment of an additional late fee. The amount of the late fee shall be ten (10) percent of the total amount of the administrative penalty owed, or as otherwise prescribed by resolution of the council or designated by city ordinance. The late fee shall not exceed one hundred (100) percent of the total amount of the administrative penalty.

(f) The failure of any person to pay a penalty assessed by an administrative citation within the time specified on the citation constitutes a debt to the city and may be collected as provided in section 18-205 of this Code.

(Ord. No. 10-09, § 1, 9-7-10)

(a) Responsible parties receiving an administrative citation may appeal to a hearing officer within twenty-one (21) calendar days from the date of the administrative citation, together with an advance deposit of the fine. A notice of appeal form may be obtained from the administrative processing agency specified on the administrative citation. The notice of appeal must be in writing and must specify the factual and/or legal basis for the appeal in detail, and must be filed with the administrative processing agency as indicated in the administrative citation. If the deadline falls on a weekend or city holiday, then the deadline shall be extended until the next regular business day.

(b) As soon as practicable after receiving the notice of appeal, the administrative processing agency shall review the administrative citation and if found to be complete and in conformance with section 18-306, fix a reasonable date, time and place for hearing before a hearing officer appointed by the city manager pursuant to section 18-301. Written notice of the time and place for the hearing may be served by U.S. First Class mail, personal service, or posting a copy of the notice at least ten (10) calendar days prior to the date of the hearing to the responsible party protesting the citation.

(c) The failure of any person with an interest in the property affected to receive such properly addressed notice of the hearing shall not affect the validity of the proceeding under this article. Service by U.S. First Class mail, postage prepaid shall be effective on the date of mailing.

(d) Failure of a responsible party to file a notice of appeal in accordance with the provisions of this section shall constitute a waiver of the responsible party's rights to administrative determination of the merits of the administrative citation and the amount of the penalty. Failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies thus barring review by the court pursuant to subsection (b)(1) of section 53069.4 of the California Government Code.

(e) If an enforcement officer submits an additional written report concerning the administrative citation to a hearing officer for consideration at the hearing, then a copy of this report also shall be served on the responsible party requesting the hearing at least five (5) calendar days before the date of the hearing.

(Ord. No. 10-09, § 1, 9-7-10)

(a) The city manager shall designate a hearing officer pursuant to section 18-301 for any administrative citation hearing. The contestant may request the city manager to remove a hearing officer for reasons of actual prejudice against the party's cause. The hearing officer shall conduct an orderly and fair hearing and receive evidence on which persons commonly would rely in the conduct of their business affairs as follows:

(1) A valid administrative citation shall be prima facie evidence of the violation;

(2) The hearing officer shall administer oaths and affirmations, pursuant to section 11528 of the California Government Code, and receive testimony by oath of affirmation, pursuant to section 2094 of the California Code of Civil Procedure, relating to the violation and the appropriate means of correcting the violation;

(3) The responsible party, or any other interested person may present testimony or evidence concerning the violation and the means and time frame for correction.

(b) A hearing officer may reduce the penalties stated in administrative citations or any late fees assessed pursuant to subsection 18-309(e) by no more than one-half (½) of the total penalty or late fee. In no event may the hearing officer waive such penalties or late fees. A hearing officer may impose conditions and deadlines for correction of violations or payment of outstanding penalties.

(c) A hearing officer shall make findings based on the record of the hearing and make a written decision based on the findings. If a hearing officer finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the warning notice, the hearing officer shall sustain the administrative citation.

(d) The administrative processing agency shall preserve all exhibits submitted by the parties for a period of ninety (90) days and shall serve the decision by U.S. First Class mail on the contestant within ten (10) working days after the hearing. The decision of a hearing officer sustaining or dismissing the administrative citation is final and conclusive. There are no appeals to the council.

(Ord. No. 10-09, § 1, 9-7-10)

(a) After receipt of a hearing officer's decision, the contestant may file an appeal with the appropriate Imperial County superior court for de novo review pursuant to section 53069.4 of the California Government Code.

(b) The court shall conduct a de novo hearing, except that the contents of the administrative processing agency's file in the case shall be received into evidence. A copy of the contestant's request for appeal to the appropriate court shall be served in person or by U.S. First Class mail upon the city or the administrative processing agency by the contestant as required by subsection (b)(1) of Section 53069.4 of the California Government Code.

(c) A copy of the administrative citation and imposition of the administrative fine or penalty shall be admitted into evidence as prima facie evidence of the facts stated therein.

(d) If the contestant does not appeal the hearing officer's final administrative order or decision or the appeal is not filed within the period set forth in section 53069.4 of the California Government Code, the order or decision shall be deemed confirmed.

(e) If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the city. Any deposit of penalties shall be refunded by the city in accordance with the judgment of the court.

(f) If an advance deposit of the penalty was not provided and the decision of the court is against the contestant, the city may proceed to collect the civil penalty in manner provided in this article or pursuant to section 18-205 of this Code.

(Ord. No. 10-09, § 1, 9-7-10)

(a) The city may collect the assessed administrative penalties and administrative costs by use of all available legal means, including recordation of a lien as set forth below.

(b) The director of finance may impose a special assessment against the property that is the subject of an administrative citation, if the citation has been issued to the property owner. The director of finance shall record a notice of lien in the office of the county recorder when the special assessment procedure is used. When so made and confirmed, the assessment shall constitute a lien on that property for the amount of the assessment and shall have the force and effect and priority of a judgment lien governed by section 697.340 of the California Code of Civil Procedure and may be extended as provided in sections 683.110 et seq., of the California Code of Civil Procedure.

(c) After confirmation and recordation, a copy may be turned over to the county tax collector. At that point, the tax collector may add the amounts of the respective assessments to the next regular property tax bills levied against the lots and parcels of land for municipal purposes. Those amounts may be collected at the same time and in the same manner as ordinary property taxes are collected, and may be subject to the same penalties and procedures under foreclosure and sale as provided for with ordinary municipal taxes. Alternatively, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law.

(d) Once payment in full is received by the city for outstanding penalties and costs, the director of finance shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the office of the county recorder. Such notice of satisfaction shall satisfy the city's lien.

(e) If the failure by any responsible party to pay a penalty assessed by an administrative citation results in the filing of an action with the small claims court or any other court to collect the fine, the responsible party shall be liable for all costs and attorneys' fees, as allowed by law, associated with the filing of such action if the city prevails.

(f) Penalties collected in the manner described in this article shall be deposited in the general fund.

(Ord. No. 10-09, § 1, 9-7-10)

Nothing contained herein shall in any way be construed to inhibit or alter any obligations any responsible party may have to report the sale, dismantlement, or destruction of a vehicle or vehicle parts to the state department of motor vehicles in accordance with the California Vehicle Code and all applicable laws.

(Ord. No. 10-09, § 1, 9-7-10)

Any administrative citation given pursuant to this article shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate the public nuisance or violation or to seek compensation for damages suffered. A civil or criminal action may be brought concurrently with any other process regarding the same public nuisance or violation.

(Ord. No. 10-09, § 1, 9-7-10)

This article and each section and provision of said article hereunder, are hereby declared to be independent divisions and subdivisions and, not withstanding any other evidence of legislative intent, it is hereby declared to be the controlling legislative intent that if any provisions of said article, or the application thereof to any person or circumstance is held to be invalid, the remaining sections or provisions and the application of such sections and provisions to any person or circumstances other than those to which it is held invalid, shall not be affected thereby, and it is hereby declared that such sections and provisions would have been passed independently of such section or provision so known to be invalid. Should any procedural aspect of this article be invalidated, such invalidation shall not affect the enforceability of the substantive aspects of this article.

(Ord. No. 10-09, § 1, 9-7-10)

Any provision(s) in the El Centro City Code specifically in conflict with any provision in this article is hereby superseded.

(Ord. No. 10-09, § 1, 9-7-10)