Fairfax Municipal Code Ch. 1.10 Administrative Citation and Hearing Process Enforcement

The Town Council has determined that the enforcement of this code, any code it adopts by reference, and applicable state codes, is an important public service and is vital to the protection of the public's health, safety, and quality of life. The Town Council has determined that there is a need for alternative methods of code enforcement and that a comprehensive code enforcement system uses a combination of criminal, civil, and administrative remedies to gain compliance with code regulations.

(Ord. 745, passed 9-2-2009)

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

ADMINISTRATIVE CITATION. A notice issued by an enforcement officer pursuant to this chapter that there has been a violation of the code and that an administrative fine is imposed.

CODE VIOLATION. Any violation of this code, any code it adopts by reference, any other ordinance of the town, or applicable law or legally enforceable standard.

ENFORCEMENT OFFICER. An individual designated by the Town Manager to enforce the provisions of the code or other applicable law.

HEARING AUTHORITY. Shall consist of any town staff person or consultant appointed by the Town Manager as a hearing officer.

ISSUANCE DATE. The day an administrative citation is personally served on a responsible person, is mailed to a responsible person, or is posted on real property where a property-related violation occurred.

ISSUE. To give, mail, or post an administrative citation.

NOTICE OF DECISION. A notice that informs a responsible person of a decision made by a hearing authority pursuant to the provisions of this chapter.

NOTICE OF VIOLATION. Any notice that informs a person that a violation of the code, any code it adopts by reference, or other applicable law, occurred.

PRELIMINARY REVIEWING AUTHORITY. The department head of the issuing enforcement officer.

RESPONSIBLE PERSON. Any of the following:

(1) An individual or legal entity that, by action or inaction, causes or maintains a code violation, or permits or allows a code violation.

(2) An individual or legal entity whose agent, employee, or independent contractor, by action or inaction, causes or maintains a code violation, or permits or allows a code violation.

(3) An owner, lessee or sub-lessee with current right of possession of real property on which a code violation occurs.

(4) An individual or legal entity that uses the property where the violation occurs.

(5) An on-site manager of a business normally working at the site when the business is open and responsible for the activities at such business.

(6) The owners, majority stockholders, controlling owners, corporate officers, trustees, and/or general partners of a legal entity that is a responsible person under divisions (1) through (5) above.

(7) If any of the above persons are minors, the parents or guardians of such minors shall be deemed the responsible person.

TOWN MANAGER. The Manager of the Town of Fairfax, or his or her designee.

(Ord. 745, passed 9-2-2009)

For purposes of this chapter, the Town Manager and his or her designated enforcement officers shall have 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 this code or other law. More specific provisions regarding alternative administrative or other enforcement authority and procedures for particular violations may exist in this code; the town reserves the right to use any applicable enforcement mechanism in a particular situation.

(Ord. 745, passed 9-2-2009)

Enforcement officers are authorized to enter upon any property or premises within the town to ascertain whether the provisions of the Municipal Code are being obeyed, and to make any examination and surveys as may be necessary in the performance of their enforcement duties. These inspections may include the taking of photographs, samples, or other physical evidence. All inspection, entries, examinations and surveys shall be done in a reasonable manner and in accordance with law. If an owner, occupant, or agent refuses permission to enter or inspect, the enforcement officer may seek an administrative inspection warrant pursuant to law.

(Ord. 745, passed 9-2-2009)

For the purpose of this chapter, the enforcement officer may record with the Registrar-Recorder/County Clerk/County Recorder a notice against a property that is the subject of an administrative enforcement action pending with the town. A notice of pending administrative action shall be on a form approved by the town manager and shall describe the nature of the administrative action and refer to the code provision governing the pending administrative action.

(Ord. 745, passed 9-2-2009)

Whenever an enforcement officer determines that a violation exists, the enforcement officer may issue a notice of violation to any responsible persons. The notice of violation must include the following information:

(A) The code section(s) violated.

(B) A description of the condition creating the violation(s).

(C) The address where the violation(s) occurs.

(D) The name of the responsible person and any other involved persons.

(E) The date and, if relevant, time at which the violation was observed.

(F) If applicable, a list of any corrections to bring the property into compliance.

(G) A deadline or specific date to correct the violations.

(H) The signature of the enforcement officer issuing the notice of violation.

(I) The date of issuance of the notice of violation.

(Ord. 745, passed 9-2-2009)

A notice of violation may be issued as follows:

(A) An enforcement officer may personally serve the notice of violation on the responsible person; or

(B) An enforcement officer may mail the notice of violation to the responsible person by first class mail; or

(C) An enforcement officer may post a copy of the notice of violation on the subject property in a conspicuous place for a property-related code violation and, in which case, the enforcement officer shall also mail a copy of the notice of violation to the responsible person at the address where the violation occurred.

(Ord. 745, passed 9-2-2009)

When correction of a noticed violation is not effected within the time prescribed in the notice, an enforcement officer may issue an administrative citation to each and every responsible party previously notified of such violation(s). The administrative citation shall give notice of the administrative fines or penalties imposed pursuant to this chapter.

(Ord. 745, passed 9-2-2009)

An administrative citation shall include the following:

(A) A description of the condition creating the violations(s).

(B) The address where the violation(s) exists.

(C) The name of the responsible person(s) and any other involved persons.

(D) The date and, if relevant, time at which the violation was observed.

(E) The amount and due date of the fine or penalty.

(F) A description of the procedure to pay the fine.

(G) A description of the procedure for requesting the preliminary review, waiver of fine deposit, and hearing to contest the administrative citation.

(H) If applicable, a list of any corrections to bring the property into compliance.

(I) A statement that any unpaid fines or penalties may be placed as a special assessment or lien against the property where a violation occurs.

(J) Signature of the enforcement officer issuing the administrative citation.

(K) The date of issuance.

(L) Any other information deemed necessary for enforcement or collection of the administrative fines.

(Ord. 745, passed 9-2-2009)

(A) Any violation of a provision of this code, any code it adopts by reference, or other applicable law, may be subject to an administrative fine or penalty pursuant to this chapter. (This also includes any violation of any condition imposed upon the issuance of any permit, license, conditional use permit, or other approval (e.g., subdivision map, special use permit, variance, zoning clearance) pursuant to this code.

(B) Each and every responsible person noticed regarding a code violation(s) is joint and severally liable, in accordance with notice and procedures of this chapter, for all fines or penalties imposed for the violation(s).

(C) A violation that exists for more than one day shall be considered a separate and distinct violation for each day that it exists. Each daily violation may be subject to the maximum fine or penalty permitted under this chapter.

(D) An administrative citation may charge a code violation for one or more days on which a violation exists and for violation of one or more code sections.

(E) The administrative fines and penalties delineated in this chapter are in addition to, and do not preclude imposition of, any other remedies, criminal, civil, or administrative, available to the town. Imposition of administrative fines or penalties shall be at the sole discretion of the town.

(Ord. 745, passed 9-2-2009)

An administrative citation may be issued in one or more of the following ways:

(A) An enforcement officer may personally serve the citation on the responsible person. The responsible person is required to sign a copy of the administrative citation showing his or her receipt, but his or her failure to do so shall have no effect on the enforcement of the citation; or

(B) An enforcement officer may mail the administrative citation to the responsible person by first class mail; or

(C) An enforcement officer may post a copy of the administrative citation on the subject property in a conspicuous place for a property-related code violation and, in which case, the enforcement officer shall also mail a copy of the administrative violation to the responsible person at the address where the violation occurred.

(Ord. 745, passed 9-2-2009)

(A) The administrative fines for violations of this code, as specified in this chapter, shall be established by resolution of the Town Council; provided, however, that the amount of the fines shall not exceed the limits of Government Code Section 36901. The schedule of fines may include escalating fine amounts for repeated code violations within specific periods of time.

(B) Administrative fines not paid prior to their due date shall result in the imposition of a penalty and interest for every day of delinquency, as set forth by resolution.

(Ord. 745, passed 9-2-2009)

(A) All fines are due on the day specified in the administrative citation.

(B) Fines shall be paid to the town. Payments shall be made in accordance with procedures established by the Town Manager or his or her designee.

(C) Payment of a fine or penalty pursuant to this chapter shall not excuse or discharge any continued or repeated violation of this code.

(D) Pending a hearing by the hearing authority, payment of a fine may be stayed if the preliminary reviewing authority determines, pursuant to § 1.10.150(H), that a responsible person is unable to pay the fine.

(Ord. 745, passed 9-2-2009)

(A) Failure to pay a fine or penalty before the time set forth in the administrative citation shall result in the imposition of interest and penalties, as established by resolution.

(B) The town may pursue any and all legal and equitable remedies for the collection of fines, including interest and penalties.

(C) Delinquent fines, interest, and penalties may be recorded as a lien or special assessment against the property on which the code violation occurred. Prior to recording a lien or special assessment, the town shall prepare a cost report itemizing the amount owed by the responsible person. The town shall comply with the State Franchise Tax Board or any other state or county law pertaining to the recording of any delinquent fines, interest, and penalties as a lien on the property, or as a special assessment.

(D) The administrative citation process described in this chapter does not preclude the town from recovering any code violation abatement cost incurred by the town in performing its code enforcement efforts.

(Ord. 745, passed 9-2-2009)

(A) A person that received an administrative citation may request a preliminary review. Such request must be made within seven calendar days of the date that the administrative citation is issued, or prior to the due date specified on the administrative citation, which ever is earlier. Failure to request a preliminary review before the deadline constitutes a waiver of any preliminary review.

(B) A request for a preliminary review shall be made in writing and filed with the Town Clerk and shall include all information that the responsible person desires the preliminary reviewing authority to consider in his or her preliminary review of the citation. A request for preliminary review may include a request for waiver of the fine deposit. A responsible person requesting a waiver of fine deposit bears the burden to establish by substantial evidence, including sworn affidavit, that he or she is unable to deposit the fine imposed by the administrative citation.

(C) The preliminary review shall be conducted by the preliminary reviewing authority.

(D) The preliminary review shall include a review of the notice of violation, the administrative citation, the written request for a preliminary review, and any evidence the responsible person may submit with the written request.

(E) The cited person shall be notified of the results of the preliminary review within seven calendar days of filing a written request for preliminary review. The decision on a preliminary review is not a final disposition and therefore is not subject to judicial review.

(F) A request for preliminary review shall not extend any time period for compliance, the due date of any fine imposed, or the time to request an administrative hearing.

(G) If the preliminary reviewing authority concludes that no code violation occurred or that the responsible person was not responsible for the code violation, then he or she shall dismiss the notice of violation and/or administrative citation, without prejudice to the issuance of a further notice of violation and/or administrative citation should additional evidence be developed.

(H) The preliminary reviewing authority shall also rule whether the responsible person qualifies for waiver of the fine deposit, if such a request has been made.

(Ord. 745, passed 9-2-2009)

(A) A cited person may request an administrative hearing. Such request must be filed within 20 calendar days of the issuance of the first administrative citation. Failure to request a hearing before the deadline, or failure to comply with all the terms for requesting a hearing, constitutes an abandonment of such request and a failure to exhaust administrative remedies.

(B) A request for an administrative hearing shall be made in writing and filed with the Town Clerk, and shall include any grounds which the responsible person wishes the town to consider. Unless waived upon preliminary review, the request shall be accompanied by a deposit of the full amount of the fine, plus any penalties imposed by the administrative citation in the event the fine has not yet been paid.

(C) A cited person may request one continuance of a hearing provided he or she does so in writing before the date of the hearing and states a reasonable basis for the request. Unless the town issues a written notice of continuance, the hearing shall take place on the date, time and location specified in the notice of hearing transmitted to the cited person. A cited person's failure to attend a hearing shall constitute an abandonment of the request for the hearing and a failure to exhaust administrative remedies.

(Ord. 745, passed 9-2-2009)

(A) The hearing shall be conducted by the hearing authority on the date, time, and location specified in the notice of hearing transmitted to the cited person.

(B) The notice of violation, the administrative citation, and other reports prepared by an enforcement officer concerning a code violation shall be accepted by the hearing authority as prima facie evidence of the facts stated in such documents.

(C) The hearing authority shall allow the cited person an opportunity to testify at the hearing and to present evidence about any code violation specified in the notice of violation or administrative citation.

(D) The enforcement officer or other representatives of the town may, but are not required, to attend the hearing.

(E) The hearing authority may continue a hearing from time to time and may allow a responsible person additional time to remedy a violation. In addition, the hearing authority may request additional information or evidence from the cited person.

(F) All hearings shall be recorded on a video or audio device, unless the Town elects to use a court reporter. If a court reporter is not used, the town need not provide transcripts of any hearings, but, within 15 calendar days after payment of reasonable duplication fee, shall make the video and/or audio recordings available to the responsible person. If a court reporter is used, a recipient of the administrative citation may obtain a copy of the transcript upon payment of any applicable fees or costs.

(G) A hearing need not be conducted in accordance with the technical rules of evidence. Any relevant evidence may be admitted if it is evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might consider such admission improper in a civil action. Irrelevant or unduly repetitious evidence shall be excluded.

(H) After considering all testimony and evidence submitted at the hearing, the hearing authority shall issue a written decision to affirm, modify or dismiss the administrative citation. The decision shall include the hearing authority's findings, as well as information regarding the cited person's right to seek judicial review of the decision and the time in which to do so. The town shall issue the cited person a copy of the hearing authority's written decision (the "notice of decision"). The decision of the hearing authority shall be final.

(I) If the hearing authority determines that the administrative citation should be affirmed, the fine and/or penalty amount of deposit with the town shall be retained by the town.

(Ord. 745, passed 9-2-2009)

The Town Council, Planning Commission or other similar body, or town staff may consider the fact that a person has been issued an administrative citation when determining whether to grant, suspend, revoke, or deny to that person any permit, license, or other approval, regarding a matter related to the condition causing the code violation, and may consider such administrative citation to be evidence that the person has committed acts that threaten the health, safety, and welfare of the general public.

(Ord. 745, passed 9-2-2009)

(A) A person whose administrative citation is affirmed by the hearing officer pursuant to § 1.10.180 may appeal the decision of the hearing officer to the Town Council in accordance with Chapter 2.44 of the Town Code.

(B) A person who loses on appeal to the Town Council may file a petition for review with the Superior Court, pursuant to Government Code Section 53069.4 within 20 calendar days after service of a copy of the notice of decision. In any such action, the prevailing party shall have the right to recover reasonable attorney fees and cost.

(Ord. 745, passed 9-2-2009)