Firebaugh Municipal Code § 1-5 Penalty

Whenever in this code or any other ordinance of the City, or in any rule or regulation promulgated pursuant thereto, an act is prohibited or is made or declared to be unlawful or an offense, or the doing of any act is required or the failure to do an act is declared to be unlawful or a misdemeanor, where no specific penalty is provided therefor, the violation of any such provision of this code or any other ordinance of the City or rule or regulation shall be punished by a fine not exceeding $500 or imprisonment for a term not exceeding six months, or by both such fine and imprisonment.

Whenever in this code or in any other ordinance of the City or in any other rule or regulation promulgated pursuant thereto, any act is made or declared to be an infraction, or the doing of any act is required or the failure to do an act is declared to be an infraction, where no specific penalty is provided therefor, the violation of any such provision of this code or any other ordinance of the City or rule or regulation declared to be an infraction shall be punishable by:

a. A fine not exceeding $50 for a first violation;

b. A fine not exceeding $100 for a second violation of the same ordinance within one year;

c. A fine not exceeding $250 for each additional violation of the same ordinance within one year.

Except as otherwise provided, every day any violation of this code or any other ordinance of the City or any such rule, regulation or order shall continue shall constitute a separate offense.

The maximum penalty stated in this section is not intended to state an appropriate penalty for every violation. Any lesser penalty, including a nominal penalty or no penalty at all, may be appropriate for a particular case or violation.

In addition to the penalties provided in Subsection 1-5.1, any condition caused or permitted to exist in violation of any of the provisions of this code or any other City ordinance shall be deemed a public nuisance and may be, by this City, summarily abated as such. Every day such condition continues shall be regarded as a new and separate offense.

[Ord. # 04-01, S1]

The council finds that there is a need for an alternative method of enforcement of violations of this code. The council further finds and declares that an appropriate method for enforcement of violations of the code is the following administrative citation and civil penalty program.

[Ord. # 04-01, S1]

Any person violating any provision of this code may be issued an administrative citation by a citation officer as provided in this Subsection 1-5.5. A separate civil penalty for each violation of the code may be assessed by means of one administrative citation.

[Ord. #04-01, S1]

Upon discovering or observing any violation of this code, a citation officer may issue an administrative citation, in a form approved by the City Manager and the City Attorney, to a violator or property owner. The administrative citation shall contain the following information:

a. Date and location of the violation(s), including the street address, if any, and the approximate time the violation(s) were observed.

b. Section(s) of the code violated and brief description of how the section(s) are violated, including a description of behaviors constituting a nuisance, if any.

c. Description of the action required to correct the violation(s), if applicable; and, if applicable, the date by which the violation(s) must be corrected.

d. Statement explaining the consequences of failure to correct the violation(s).

e. Amount of penalty imposed for the violation(s).

f. Explanation of how the penalty is to be paid, the time within which the penalty must be paid, and the consequences of failure to pay the penalty.

g. Statement of the right to contest the contents of the administrative citation and right of appeal, including the name and address of the hearing officer for purposes of filing any notice of appeal.

h. Signature of the citation officer and the signature of the violator, if he or she can be located as described in this section.

[Ord. #04-01, S1]

The citation officer shall attempt to locate the party responsible for a violation of the code. For purposes of issuing a citation to a business, the citation may be issued to the person in immediate control of the business on site at the time of the issuance of the administrative citation and penalty. In all cases, the citation officer shall attempt to obtain the signature of the person to whom the citation was issued. However, the lack of a signature shall not affect the validity of the citation or any subsequent proceedings thereon.

[Ord. #04-01, S1]

If the citation officer is unable to locate the violator(s), the administrative citation shall be mailed to the party responsible for the violation and, if different than the responsible party, the property owner. The administrative citation shall be mailed by certified first class U.S. mail. The failure of any person with an interest in the property to receive the administrative citation shall not affect the validity of any proceedings taken under this Subsection 1-5.5. Notice given by mail as described above shall be effective on the date of mailing.

[Ord. #04-01, S1]

When an administrative citation is issued for a continuing violation of building, plumbing, electrical or other similar structural or zoning issues, and if such violation does not create an immediate danger to health or safety, the responsible party shall be given a reasonable period of time to correct the violation prior to the imposition of the civil penalty. If the violation is not corrected within the time prescribed, the penalty will be immediately due and payable. In all other situations, the penalty is imposed at the time the citation is issued and is immediately due and payable.

[Ord. #04-01, S1]

a. Any person issued an administrative citation may contest the citation by filing an appeal with the City Clerk within 15 days after the service of the citation. The hearing officer for all appeals under this section shall be the City Manager or such other person as the City Manager specifically appoints to act in such capacity. The appeal shall be addressed to the City Manager and shall contain the following:

1. A caption reading "Appeal of _____," giving the name and address of the appellant.

2. A brief description of the specific citation being appealed.

3. A statement of the relief sought.

4. The reasons why such relief should be granted.

5. The declaration of the appellant, under penalty of perjury, that the facts stated in the appeal are true as of the appellant's own knowledge, except as to matters which are not within the appellant's knowledge and are not of public record; and, as to those matters, that the appellant believes the facts stated to be true.

If an appeal is filed within the fifteen-day period and if the appeal contains all the information prescribed above, all proceedings in furtherance of the citation shall be stayed until the determination of the appeal as provided in this section. If no such appeal is timely filed, the administrative citation and the penalty shall be final and the penalty shall be immediately due and payable.

b. Upon timely receipt of an appeal meeting the requirements of Paragraph a., the hearing officer shall cause one copy to be stamped indicating the date of receipt and shall immediately forward the other copy to the citation officer whose citation is being appealed. The hearing officer shall set the date of the appeal hearing to commence within 45 days after the date the appeal was filed, and shall give to the appellant and the citation officer whose citation is being appealed at least 15 days' written notice of the date, time and place of the hearing. The appellant, or his or her authorized representative, may waive the fifteen-day notice period, so long as the waiver is in writing and filed with the hearing officer.

c. On the date set therefor, the hearing officer shall hold a hearing on the appeal, except that either orally or at the same time for the hearing or in writing prior to the time for the hearing, the hearing officer may in his or her discretion, continue the matter to another date certain, but not more than 30 days. The citation officer who issued the citation shall present evidence in support of the findings or reasons on which the citation was based. The appellant, or any individual authorized in writing to represent the appellant, may then present evidence in support of the contentions made in the notice of appeal. The hearing shall be conducted informally and the technical rules of evidence shall not apply, except that irrelevant or unduly repetitious evidence shall be excluded. The hearing officer shall give a decision at the conclusion of the hearing, or in writing within 10 working days after the conclusion of the hearing. The hearing officer may affirm, reverse, modify or set aside the citation and penalty, or may delete or impose such conditions as the facts and law warrant. The decision of the hearing officer is final; except that when the decision has upheld a penalty of $2,500 or more, the party charged with the penalty may appeal the decision of the hearing officer to the council by filing a written request with the City Clerk within 15 days after the date of the service of the decision. If the hearing officer's decision is written, service of the decision shall be the date the decision is mailed to the appellant; if the decision is given orally to the appellant at the conclusion of the hearing, service of the decision shall be the date the decision is given orally. In such cases, if the applicant does not appeal the decision within the fifteen-day period, the decision of the hearing officer shall be final. If the applicant timely appeals, the council may confirm, modify up or down or overrule the penalty. The decision of the council shall be final.

d. If the appellant fails to appear for the hearing at the time and place noticed, the hearing officer, in his or her discretion, may conduct the hearing to conclusion or may dismiss the appeal. If the appeal is dismissed, the administrative citation and penalty shall become final as if no appeal had been filed. On a showing of good cause by the appellant, the hearing officer may, in his or her discretion, set aside the appellant's failure to appear and reschedule the appeal for hearing.

[Ord. #04-01, S1]

Except as otherwise set forth in this code or by resolution of the council, the following base schedule is established for determining the amount of civil penalty to be assessed for each code violation specified in an administrative citation:

a. First violation within a rolling twelve-month period, $100.

b. Second occurrence of the same violation with a rolling twelve-month period, $200.

c. Third or subsequent occurrence of the same violation within a rolling twelve-month period, $500.

[Ord. #04-01, S1]

If the violator or property owner fails to correct the violation, subsequent administrative citations and penalties may be issued for the same violations, or the City may institute any other applicable action permissible under this code to gain compliance. The amount of penalty for each subsequent violation of the same code provision shall increase at the rate specified in Subsection 1-5.5.8.

[Ord. #04-01, S1]

Payment of a penalty shall not excuse the failure to correct the violation or bar further enforcement action by the City. The failure of any person to pay any penalty assessed by administrative citation within the time specified in the citation shall result in the assessment of an additional late fee equal to 10% of the total amount of penalty due and owing.

[Ord. #04-01, S1; amended 6-7-2021 by Ord. No. 21-03]

The City may file a legal action, impose a lien as set forth below, or pursue any other legal remedy to collect a penalty that has become final as provided in this section. The City may impose a lien in the amount of the confirmed penalty against the property that is the subject of an administrative citation and penalty, if the citation has been issued to the property owner. The City may record a notice of lien in the office of the county recorder. After the notice of lien is recorded, a copy may be turned over to the county tax collector to add the amount of the unpaid penalty to the next regular tax bill levied against the property for property taxes. Those amounts shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale in case of delinquency as provided for ordinary property taxes. Alternatively, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law. The notice of lien shall be in a form approved by the City Manager and the City Attorney. In any action, administrative proceeding, or special proceeding to abate a nuisance, the prevailing party of said action may recover its reasonable attorneys' fees.

[Ord. #04-01, S1]

The following officers and employees are deemed citation officers and have the authority to issue administrative citations and civil penalties: the police chief, the fire chief and their respective designated deputies, assistants or employees; the Public Works Director; and the Building Inspector.

[Ord. #04-01, S1]

Except as otherwise provided, all civil penalties imposed pursuant to this section shall be payable to the City.