Chapter 1.14 — ADMINISTRATIVE PENALTIES

This chapter establishes an enforcement mechanism for all violations of the El Cerrito Municipal Code. The procedures established in this chapter are in addition to any other procedures or legal remedies available to address violations of the El Cerrito Municipal Code.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

Administrative Citation. An administrative citation is an official notification, on a form meeting the criteria of this chapter, of violation of any provision of the El Cerrito Municipal Code. Administrative citations require correction of the identified violation(s) and impose penalties on the responsible person(s).

B.

Compliance Order. A compliance order is an official notification, on a form meeting the criteria of this chapter, of violation of any provision of the El Cerrito Municipal Code. Compliance orders require correction of the identified violation(s).

C.

Enforcement Officer. An enforcement officer is any person appointed by the city manager, or by the city manager's designee, to implement the provisions of this chapter.

D.

Responsible Person. A responsible person is any person an enforcement officer determines is responsible for causing, maintaining, committing or allowing a violation of the El Cerrito Municipal Code. A responsible person includes without limitation any person who exercises legal or physical control over a property or business premises in the city, such that the responsible person is capable of preventing or correcting violations of the El Cerrito Municipal Code.

(Ord. 2003-5 Div. 1 (part), 2003.)

The city manager shall administer this chapter, and may establish appropriate rules, forms, and procedures for administration, consistent with the requirements of this chapter. The city manager may appoint, or may designate another city official to appoint, one or more enforcement officers to issue compliance orders and administrative citations.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

When an enforcement officer observes a correctable, continuing violation of the El Cerrito Municipal Code pertaining to building, plumbing, electrical, or other similar structural or zoning issue, creating no immediate danger to health or safety, the enforcement officer shall issue a compliance order to any responsible person prior to issuance of an administrative citation. When an enforcement officer observes a correctable continuing violation of the El Cerrito Municipal Code pertaining to other than a building, plumbing, electrical, or other similar structural or zoning issue, creating no immediate danger to health or safety, the enforcement officer may issue a compliance order to any responsible person prior to issuance of an administrative citation.

B.

Each compliance order shall be in writing and shall include, without limitation, the following information:

The date of the violation(s) and, if different, the date of service of the compliance order.

The address or a definite description of the location where the violation(s) occurred or existed, and the approximate time the violation(s) occurred or was observed.

The name, address, and other identifying information of the responsible person(s).

A description of the violation(s), including citation to the section(s) of the El Cerrito Municipal Code violated.

An order requiring correction of the violation(s) within ten days of the date of the compliance order, or within such other reasonable time as the enforcement officer may determine, and notifying the responsible person that a fine will be due if correction is not made before the expiration of the correction period.

An order prohibiting the continuation or repeated occurrence of the violation(s).

The fine schedule for the violation(s).

The name and signature of the enforcement officer.

C.

If the enforcement officer determines that all violation(s) specified in the compliance order have been corrected within the time set forth in the compliance order, no further action shall be taken against the responsible person(s) regarding the violations. If all violation(s) specified in the compliance order are not corrected within the time set forth in the compliance order, the enforcement officer may issue an administrative citation to the responsible person(s). Issuance of an administrative citation does not alter any obligation to comply fully with the compliance order.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

When an enforcement officer observes a violation of the El Cerrito Municipal Code other than a continuing violation of the El Cerrito Municipal Code pertaining to building, plumbing, electrical, or other similar structural or zoning issues, creating no immediate danger to health or safety, or when all violation(s) in a compliance order have not been corrected within the time set forth in that compliance order, the enforcement officer may issue an administrative citation to any responsible person.

B.

Each administrative citation shall be in writing and shall include, without limitation, the following information:

The date of the violation(s) and, if different, the date of service of the administrative citation.

The address or a definite description of the location where the violation(s) occurred or existed, and the approximate time the violation(s) occurred or was observed.

The name, address, and other identifying information of the responsible person(s).

A description of the violation(s), including citation to the section(s) of the El Cerrito Municipal Code violated.

An order prohibiting the continuation or repeated occurrence of the violation.

The fine schedule for the violation.

A description of how, when, and where the fine must be paid.

A brief description of the administrative citation hearing process.

The name and signature of the enforcement officer.

C.

After the expiration of any correction period set forth in a compliance order, each violation of the El Cerrito Municipal Code constitutes a separate violation for every day such violation continues, and an administrative citation may be issued for each and every separate violation.

(Ord. 2003-5 Div. 1 (part), 2003.)

For any violation of the El Cerrito Municipal Code not pertaining to local building or safety codes for which no other specific penalty is established, the fine imposed by an administrative citation for that violation shall be one hundred dollars for a first violation; two hundred dollars for a second violation of the same provision of the El Cerrito Municipal Code within a twelve-month period; and five hundred dollars for each additional violation of the same provision within a twelve-month period.

For any violation of the El Cerrito Municipal Code pertaining to local building or safety codes for which no other specific penalty is established, the fine imposed by an administrative citation for that violation shall he one hundred dollars for a first violation; five hundred dollars for a second violation of the same provision of the El Cerrito Municipal Code within a twelve-month period; and one thousand dollars for each additional violation of the same provision within a twelve-month period.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

All notices, including compliance orders and administrative citations, required under this chapter shall be served on the responsible person(s) in accordance with the following provisions:

B.

Notices may be personally served on a responsible person. When an enforcement officer issues a compliance order or an administrative citation in the presence of a responsible person, that responsible person shall be asked to sign the compliance order or administrative citation to acknowledge receipt. A responsible person's failure or refusal to sign a compliance order or an administrative citation, however, shall not affect the validity of that compliance order or administrative citation.

C.

Notices may be mailed to the responsible person by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by first-class mail, postage prepaid. If a notice sent by certified mail is returned unclaimed, service by first-class mail shall nevertheless be effective if that mail is not returned. If the violation consists of a condition of real property, such notice shall be addressed to the responsible person at that property's address, unless the enforcement officer knows or has reason to know that the United States Postal Service does not deliver mail to that property. In addition, if the enforcement officer's reasonable investigation reveals a different home or business address for the responsible person, a copy of the notice shall also be sent to this alternate address by first-class mail, postage prepaid.

D.

If any notice is not personally served on a responsible person, a copy of that notice shall be posted in a conspicuous place on the property where the alleged violation occurred or existed.

E.

If a compliance order or administrative citation is issued for violation of the El Cerrito Municipal Code by a business or other organization, and if the responsible person cited is not the sole owner of that business or other organization, a copy of the compliance order or administrative citation and of any other notices required in connection with that administrative citation also shall be personally delivered or shall be sent by first-class mail, postage prepaid, to the owner or director of that business or other organization, as may be revealed by the enforcement officer's reasonable investigation.

F.

If a compliance order or administrative citation is issued for a violation of the El Cerrito Municipal Code existing on real property, and if the responsible person cited is not shown in the official records of the county of Contra Costa as the sole owner in fee simple of the real property, a copy of the compliance order or administrative citation and of any other notices required in connection with that administrative citation shall also be personally delivered or shall be sent by first-class mail, postage prepaid, to any owners of interests in that property that

may be affected by the violation, at the address shown on the last equalized county assessment roll, and at such other address as may be revealed by the enforcement officer's reasonable investigation.

G.

If the enforcement officer does not succeed in personal service on the responsible person and if the enforcement officer's reasonable investigation reveals no home or business address for the responsible person, and if the violation does not consist of any condition of real property, the enforcement officer shall cause the notice to be published once a week for four successive weeks in a local newspaper published at least once per week.

H.

Service of any notice in accordance with these requirements may be proven by declaration or affidavit. Service is complete upon personal delivery, upon deposit with the United States Postal Service, or upon completion of publication according to subsection F above. Failure of any person with an interest in the compliance order or administrative citation to receive properly served notice shall not affect the validity of any proceedings under this chapter.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

Any responsible person may contest an administrative citation by requesting a hearing within ten calendar days from the date of service of the administrative citation. The hearing request must be in writing on a form furnished by the city, specifying in detail the basis for contesting the administrative citation. The responsible person requesting the hearing shall deposit with the city either the amount of the fine or an application for a hardship waiver as described in Section 1.14.090 below. If the deadline for requesting a hearing falls on a weekend or on another date that city offices are closed for all of the normal business thy, then the deadline shall be extended until close of business on the next regular city business day.

B.

The city shall hold a hearing within thirty days of receiving a hearing request. The responsible person requesting the hearing, as well as any other persons upon whom the administrative citation was served under Section 1.14.070 above, shall be notified of the time and place of the hearing at least ten days before the hearing date. Either the responsible person or the city may request a continuance of the hearing to a mutually agreeable date, but in no event may the hearing begin later than ninety days after the city receives a hearing request, accompanied by either deposit of the fine or a completed hardship waiver application.

C.

The city manager shall designate a hearing officer to hear and decide appeals of administrative citations. The hearing officer may, but need not be, an employee of the city of El Cerrito. The employment, performance evaluation, compensation, and benefits, if any, of this hearing officer shall not be directly or indirectly conditioned upon the number of administrative citations or the amount of administrative fines upheld by the hearing officer.

D.

Failure to file an appeal request in accordance with this section, shall constitute a waiver of the responsible person's right to contest any matters set forth in the administrative citation.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

Any responsible person who requests a hearing to contest an administrative citation and who is financially unable to deposit the administrative fine may request a hardship waiver.

B.

This request shall be filed with the request for a hearing. A sworn affidavit, and any other relevant supporting materials, demonstrating the responsible person's inability to deposit the fine in advance of the hearing, shall accompany the request.

C.

The city manager or his or her designee shall decide within ten days of receipt of the hardship waiver request whether or not to issue a hardship waiver. The decision shall be in writing, and shall be served upon the responsible person requesting the waiver. The decision shall be final.

D.

If the city manager or his or her designee decides that a hardship waiver is unwarranted, the responsible person shall deposit the full amount of the fine within ten days of service of the written decision, or within thirty days from the date of the administrative citation, whichever is later. If the responsible person fails to deposit this fine before this due date, the city may disregard the hearing request, and any scheduled hearing shall be cancelled.

(Ord. 2003-5 Div. 1 (part), 2003.)

A.

On the date and at the time and place set forth in the notice of hearing, the hearing officer shall conduct an orderly hearing and shall accept evidence on which persons commonly would rely in the conduct of their business affairs. Formal rules of evidence shall not apply.

B.

The responsible person contesting the administrative citation shall have the opportunity to testify and to present evidence, including witnesses, concerning the alleged violation. Any other interested party, including without limitation the property or business owner, employees, or neighbors, may also present evidence. The hearing officer shall limit the evidence to that which is relevant to establishing or refuting the violation alleged in the administrative citation.

C.

If the responsible person or any other interested person fails to attend the scheduled hearing, that person shall have waived any right to present evidence on the matter.

D.

The administrative citation and any other reports submitted by the enforcement officer shall constitute prima facie evidence of the facts recited in those documents.

E.

The hearing officer may take the matter under consideration, may continue the hearing, and may request additional information from the enforcement officer or from the responsible person,

F.

On the basis of a preponderance of the evidence the hearing officer shall determine whether to affirm or dismiss the administrative citation. The hearing officer may not reduce, waive, or conditionally reduce the fines established by the city.

G.

The hearing officer shall make findings based on the record of the hearing, and shall issue a final written decision based on those findings. The written decision shall be served upon the responsible person along with notice regarding the right to further appeal.

H.

If the hearing officer affirms the administrative citation, the city shall retain any fine deposited by the responsible person. If the hearing officer affirms the administrative citation and the fine has not yet been deposited because of an approved hardship waiver, the hearing officer shall specify in the written decision a payment schedule for the fine. If the hearing officer dismisses the administrative citation, any fine deposited with the city shall be promptly refunded.

(Ord. 2003-5 Div. 1 (part), 2003.)

Any person aggrieved by an administrative decision of a hearing officer may obtain review of that decision by filing a petition for review in the Contra Costa County Superior Court, according to the requirements of Government Code Section 53069.4.

(Ord. 2003-5 Div. 1 (part), 2003.)