Fontana Municipal Code Art. XI Administrative Citations

(a) This chapter authorizes the imposition of administrative fines on any person who violates any provision of this Code in order to encourage and obtain compliance with the provisions of this code for the benefit and protection of the entire city. This chapter governs the imposition, enforcement, collection and administrative review of all administrative fines imposed under authority of Government Code Section 53069.4 and the police power of the city.

(b) The issuance of citations imposing administrative fines may be performed at the discretion of the officials of the city authorized hereunder; and the issuance of a citation to any person constitutes but one remedy of the city to redress violations of the Code by any person. By adopting this chapter, the city does not intend to limit its authority to employ any other remedy, civil or criminal, to redress any violation of this Code by any person, which the city may otherwise pursue.

(c) Every person who applies for and receives a permit, license, land use approval (e.g., subdivision map, conditional use permit, variance) or any other approval required by the city shall comply with all conditions imposed upon the issuance of such permit, license or approval. A violation of any condition of such permit, license or approval shall be subject to an administrative fine under the provisions of this chapter. Likewise, any person who fails to obtain any permit, license, land use approval or any other approval from the city when such a person is so required by the Code shall be subject to an administrative fine under this chapter.

(d) Because of the serious blighting conditions that result from persistent or prolonged failure to comply with the provisions of this code and the effect of such conditions on the desirability and marketability of surrounding properties and on the public health, safety and welfare, this chapter imposes strict civil liability upon the owners of real property for all violations of this Code existing on their real property.

(Ord. No. 1476, § 2, 5-17-05)

The following definitions apply to the use of these terms for the purposes of this section:

Citation means an administrative citation issued pursuant to this section to remedy a violation.

Cite means any person served with an administrative citation charging him or her as a responsible person for a violation.

City manager means the city manager or his or her designee.

Code means the Fontana Municipal Code and any code adopted by reference.

Code enforcement officer means any employee or agent of the city designated by the city manager to enforce any provision of this Code.

Costs shall have the meaning set forth in California Code of Civil Procedure Section 1033.5, including, without limitation, attorney's fees. In addition to such items, all of the following shall be included within the definition of "costs":

(1) Personnel costs of the city, as actually incurred by the city (for contractors and consultants) or based on established rates of employee costs as adopted by resolution of the city council from time to time. Such personnel costs shall include, but not be limited to, the costs incurred by the city to pay any contractor to abate a public nuisance.

(2) Costs of administrative hearings, including, hearing officer costs and reporter costs.

(3) Accrued interest at the maximum rate established by law.

Day means a calendar day.

Department means any department of the city that shall have issued an administrative citation.

Hearing officer means the person, whether a city employee or third party, selected by the city manager to serve as the hearing officer for administrative hearings hereunder.

Issuance, issued or served means either of the following:

(1) The preparation and service in the same manner as a summons in a civil action in accordance with article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil Procedure; or

(2) Mailing by certified mail, return receipt requested, to the address of the owner of the subject property, as shown on the last equalized assessment roll or the supplemental roll, whichever is more current.

Non-transient violation means any violation of this code that pertains to building, plumbing, electrical, or other similar structural or zoning issues, that do not create an immediate danger to health or safety.

Person means a natural person or a legal entity that is also an owner, tenant, lessee or other person with any right to possession or control of the property where a violation of this Code exists.

Responsible person means a person who causes a code violation to occur, or allows a violation to exist or continue, by his or her action or failure to act, or whose agent, employee, or independent contractor causes a violation to occur, or allows a violation to exist or continue. There is a rebut table presumption that the record owner of a parcel, as shown on the county's latest equalized property tax assessment rolls, and a lessee of a parcel has notice of any violation existing on said property. For the purposes of this chapter, there may be more than one responsible person for a violation.

Transient violation means any violation of this Code other than a non-transient violation.

Violation or violates refers to any violation of any provision of this Code and also means the failure to comply with any condition or requirement imposed on any permit, license, land use approval, or any other approval issued to a person under or pursuant to this Code.

(Ord. No. 1476, § 2, 5-17-05)

(a) An administrative fine or fines may be issued to any responsible person for a violation of any provision of this Code or for a failure to comply with any condition or requirement imposed on any permit, license, land use approval or other approval issued under or pursuant to this Code by the issuance of a citation hereunder as a remedy to enforce compliance with the provisions of this Code.

(b) Any peace officer, animal control officer, code enforcement officer or any other person designated by the city manager may issue an administrative citation to a responsible person pursuant to this section.

(c) A cite shall be liable for and shall pay to the city the fine or fines described in the citation unless:

(1) Such person corrects the violation or violations described in the citation within the period specified in the citation; or

(2) Such person appeals the imposition of such fine or fines as provided herein and is relieved of the obligation to pay such fine or fines.

However, the payment of such a fine or fines shall not relieve any person from any violation of the provisions of the Code for which such fine or fines have been imposed and paid. Any such person shall continue to be responsible for complying with the provisions of the Code and correcting any and all violations of the Code.

(d) Each administrative citation shall contain the following information:

(1) The name of the person charged with any violation of the Code.

(2) The date or dates on which the person violated the Code.

(3) The section or sections of the Code so violated.

(4) The location where the violation occurred.

(5) The amount of the daily fine to be imposed for each violation of the Code.

(6) The date or dates when the fine or fines will be imposed unless the violation or violations of the Code are corrected prior to the date or dates specified in the citation.

(7) A notice that each violation of the Code also constitutes a nuisance and that collection of any unpaid fines or nuisance abatement costs may be enforced as an assessment or lien against the real property where the Code violation occurred and that unpaid assessments can result in the property being sold after three years by the county assessor.

(8) A notice of the procedure to request an administrative hearing to contest the citation.

(9) The amount of the proposed fine for each violation listed in the citation.

(10) The signature of the person who issued the citation.

(11) The date the citation is issued.

(12) Any other information deemed necessary by the city manager for enforcement or collection purposes.

(e) In the event the city intends to collect the fine as a lien or assessment, the owner of the property, as shown on the latest equalized assessment roll or the supplemental roll, whichever is more current, shall be issued the citation. Nothing contained in this paragraph shall be construed as limiting the authority of the city to issue citations to, or collect, by other means, amounts due from, any other responsible person.

(Ord. No. 1476, § 2, 5-17-05)

(a) Each person who violates any provision of this Code or who fails to comply with any condition imposed on any permit, license, land use approval or other approval issued under or pursuant to this Code shall be subject to the imposition and payment of an administrative fine or fines as provided herein. Likewise, any person who fails to obtain any permit, license, land use approval or any other approval from the city when such a person is so required by the Code shall be subject to an administrative fine under this chapter.

(b) The amount of the applicable administrative fines for various violations shall be established by resolution of the city council.

(c) In the case of a violation of any transient violation, a fine shall be imposed without an opportunity to cure or correct such violation, and the cite shall be required to abate the violation, if necessary, immediately. On the second and each subsequent time that a person is issued a citation for the same violation in any 12-month period, the fine shall be doubled, and the cite shall be liable for the amount of the fine until it is paid, in addition to being responsible for abating the violation. However, the code enforcement officer shall have discretion to issue a citation for any violation referred to in this subsection under the procedures set forth in subsection (d).

(d) In the case of a violation of any non-transient violation, the fine or fines imposed by the citation shall not become effective for 15 days following the date on which the citation is issued for the purpose of allowing the cite to correct the violation or violations without incurring any liability to the city for the payment of such fine or fines. However, the director of the department that issued the citation may, in his or her sole discretion, extend said period for up to 30 additional days; provided that the cite demonstrates that he or she has made substantial progress to correct the violation or violations, that he or she has been diligent in correcting said violation or violations and that he or she was unable to correct said violation or violations within the initial 15-day period from the issuance of the citation. The cite must submit a written request, within five business days of the issuance of this citation, to such director seeking such an extension. The request shall contain a description of the corrections made, the corrections remaining to be made, the date when the violation or all of them shall be corrected, and the facts showing that correcting the violation or violations is not possible or practicable within said initial 15-day period. The director of the department that issued the citation shall respond in writing within five business days of receipt of the request; and the decision of the director shall be final. Unless the cite causes the correction of all of the violations described in the citation within the 15-day period from the issuance of the citation or such other extended period as may have been granted, the fine or fines imposed by the citation shall become effective on the 16th day following the issuance of the citation and said fine or fines shall continue to accrue on a daily basis until said violation or violations have been corrected to the satisfaction of the person issuing the citation. On the second and each subsequent time that a person is issued a citation for the same violation in any 12-month period, the fine shall be effective immediately, without any waiting period, and the cite shall be liable for the amount of the fine until it is paid, in addition to being responsible for abating the violation.

(e) All administrative fines imposed hereunder shall be made payable to the city and shall be paid to the city's director of management services or his or her designee. Payment of any fine or fines shall not excuse the cite from complying with the provision of the Code so violated. The issuance of a citation or payment of any fine, or both, shall not bar the city from instituting any other enforcement action or remedy to obtain compliance with the provisions of the Code so violated including the issuance of additional citations. In the event such other enforcement action includes a court action, and the citation has not been both appealed and resolved in the cite's favor, said court may include in any order issued by that court, an order or judgment requiring payment of any fines theretofore issued and unpaid.

(Ord. No. 1476, § 2, 5-17-05)

(a) Any cite may contest the citation and the proposed fine by filing a written request for an administrative hearing. To request a hearing, the cite shall sign and file the request form provided by the city clerk. The request form shall state the grounds for contesting the citation and/or the proposed fine. A cite may contest the citation and the proposed fine by denying that the cite owns, possesses, or controls the property where the violation exists, denying that the cite is responsible for the violation described in the citation, denying that a violation exists or existed, or proving that the violation was corrected within the period described in the citation or such further period granted by the applicable director. A cite may not raise any issue or defense at the hearing, or in any subsequent court action, that was not included on the request form.

(b) To be effective, the request for an administrative hearing must be filed with the city clerk within ten business days of the date the citation was issued. If the cite mails the request form, the request form shall be deemed filed with the city clerk on the date on which it is received in the office of the city clerk. Any reference in this chapter to "city clerk" shall mean the city clerk or his or her designee.

(c) A cite who has requested an administrative hearing must deposit with the director of management services or designee the amount of the proposed fine to ensure his or her appearance at the hearing. A request for a hearing shall not be complete and shall not be accepted unless it is accompanied by the deposit required by this section.

(d) Notwithstanding subsection (c), any cite who intends to request an administrative hearing and is financially unable to make the advance deposit of the fine or penalty as required herein, may file a request for an advance deposit hardship waiver. The cite shall complete an advance deposit hardship waiver form and return it to the director of management services or designee along with the written request for hearing. The cite may request an advance deposit hardship waiver form by telephone, mail or in person, but shall be solely responsible for assuring its receipt, completing and returning it within the required time. The director of management services or designee may waive the requirement of an advance deposit and issue the advance deposit hardship waiver only if the cite submits the required advance deposit hardship waiver form and includes a sworn affidavit and any supporting documents or materials demonstrating to the satisfaction of the director of management services or designee that it would be a significant financial detriment on the cite to deposit the full amount of the fine or penalty in advance of the hearing. The requirement for depositing the full amount of the fine or penalty shall be sustained unless or until the director of management services or her designee makes this determination. The management services department shall serve written notice of the director of management services' or designee's determination on the cite by certified mail, return receipt requested. Service shall be deemed complete at the time the notice is deposited into the mail and addressed to the cite at the address indicated on the administrative hearing request form. The notice shall include a brief description of the reasons for the director of management services' or designee's determination to issue or not issue the advance deposit hardship waiver. The written determination of the director of management services or designee shall be final. If the director of management services or her designee determines not to issue an advance deposit hardship waiver, the cite shall remit the deposit amount to the director of management services or designee within ten days of service of that decision, or 30 calendar days from the date of the administrative decision.

(e) In the event that the cite files a timely request for a hearing, the city manager shall advise the cite by letter, no later than ten days after receiving the cites' request for a hearing, of the date, time, and place set for the hearing. The hearing shall be set on a date that is no less than ten days and no more than 45 days after the date of the notice. The city manager shall also advise the cite that the cite may review those writings in the city's files concerning the violation or violations for which the citation was issued and that the city manager intends to introduce such writing at the administrative hearing. Upon payment of the city's actual reproduction costs, the cite may have copies thereof. The failure of the cite to appear at the administrative hearing shall constitute a waiver of the cite's right to a hearing on the citation and any defenses to the citation that the cite may have had, and the cite's deposit shall be forfeited without further action.

(Ord. No. 1476, § 2, 5-17-05)

(a) The hearing shall be conducted by a hearing officer on the date, time and place specified in the citation. The hearing shall proceed solely on the issues or defenses raised in the request for a hearing filed by the cite; and all matters not contested in said request shall be deemed admitted.

(b) The city shall have the burden to establish the truth of any matter in the citation that has been contested by the cite by a preponderance of the evidence. The citation shall be admitted into evidence and shall constitute prima facie evidence of all matters contained therein. In addition, the city may present such other evidence and reports as may be necessary or helpful to the hearing officer to resolve the issues raised by the cite.

(c) Reserved.

(d) The cite shall be given the opportunity to testify and to present evidence relevant to the matters raised in the request regarding the violation or violations described in the citation.

(e) The citation, and other reports prepared by the officer issuing the citation, or at his or her request, concerning the violation or violations or their attempted correction shall be accepted by the hearing officer as prima facie evidence of the violation or violations.

(f) The hearing shall be conducted informally and the rules of evidence need not be followed provided that the decision of the hearing officer on any material issue may not be based upon hearsay evidence alone.

(g) The unexcused failure of the cite to appear at the hearing shall constitute a waiver of his or her contest to the citation and the proposed fine or fines and a failure to exhaust administrative remedies concerning the violation or violations described in the citation, and the cite's deposit shall be forfeited without further action. Such failure to appear shall constitute an admission of the truth of all matters contained in the citation and a validation of the fine or fines imposed in the citation, which shall be ordered in the decision of the hearing officer.

(Ord. No. 1476, § 2, 5-17-05)

(a) The hearing officer shall be selected by the city manager and compensated for the time expended in providing such service based upon a written agreement for that purpose. The hearing officer's employment or compensation shall not be based on the number of citations affirmed or denied by the hearing officer. If the cite so elects in writing prior to the hearing, the cite shall be entitled to pay for one-half of the costs of the services of the hearing officer.

(b) The hearing officer may continue the hearing on a citation upon the request of the cite, or the cite's representative, or the representative of the city, upon a showing of good cause. All continuance requests shall be made in person at or before the hearing. If the continuance is granted, a new hearing date shall be within fifteen days. The cite shall deposit the amount of the estimated costs of the continued hearing as a condition of granting a continuance if the hearing is continued beyond the period in which the cite is required to comply with the citation. The hearing officer shall have the authority to issue a subpoena.

(c) After considering all the evidence and testimony submitted at the hearing, the hearing officer shall issue his or her written decision on the contested citation within five business days. The decision of the hearing officer shall, either uphold or deny the citation or any portion thereof and state the facts and reasons supporting the decision. If the citation is upheld, the hearing officer also shall order the imposition of a fine in the amount stated in the citation, as well as any costs, and compliance with the Code within five days. If the citation is denied, the hearing officer shall order the return of the deposited fine, which return shall occur within 60 days following the written order of the hearing officer. The written decision shall be filed with the city clerk and a copy thereof shall be mailed to the cite.

(d) All decisions and orders of a hearing officer shall become final unless appealed by the cite as provided herein.

(Ord. No. 1476, § 2, 5-17-05)

(a) The cite or the city may seek judicial review of the decision of the hearing officer by filing an appeal with the superior court within 20 calendar days after the cite or the city receives a copy of the decision in accordance with the provisions of California Government Code Section 53069.4. No appeal shall be permitted from a decision based upon the failure of the cite or the city to appear at the administrative hearing or upon any other waiver of the administrative hearing by the cite or the city.

(b) If an appeal of any decision or order of a hearing officer that ordered the cite to pay any fine or fines, or costs, to the city is affirmed, in whole or part, the judicial officer hearing the appeal shall enter an order requiring the cite to pay such fine or fines, and any costs, to the city and said order on appeal shall constitute a money judgment in favor of the city against the cite.

(Ord. No. 1476, § 2, 5-17-05)

(a) Each final order of a hearing officer that establishes the amount of a fine or fines, or costs, payable by a cite to the city shall constitute a money judgment. Each such money judgment shall be enforceable pursuant to the general laws.

(b) Each final order of a hearing officer that establishes the amount of a fine or fines, and any costs, payable by a cite to the city also shall constitute a sister state judgment. To enforce any such sister state judgment, the city may apply for the entry of a judgment pursuant to Chapter 1 (commencing with Section 1710.10) of Title 11 of Part 3 of the Code of Civil Procedure.

(c) In addition to any other remedy available to the city, the director may request that the fine or fines, and any costs, imposed by an order of a hearing officer be collected as a lien or assessment against the property on which the violation or violations occurred by requesting the city council to adopt an appropriate resolution to record such lien or place the amount of said fines or fines, and any costs, on the San Bernardino County tax rolls for collection. For assessments, the resolution of the city council shall conform with the County of San Bernardino auditor/controller-recorder's policies and procedures for applying special assessments to the tax rolls. The following procedures shall apply to such liens or assessments:

(1) A notice of proposed lien or assessment shall be served on the owner of the property in the same manner as the administrative citation was served on the owner. The notice shall state the amount of the fine or fines, and any costs, sought to be imposed as a lien or assessment, the legal description of the property on which the lien or assessment is sought to be imposed and the owner's right to appeal said proposed action by filing a written appeal within ten days from the date of service or mailing of said notice. The notice shall warn the owner that a failure to file a written appeal with the city clerk within said ten-day period shall constitute a waiver of the owner's right to appeal the imposition of the proposed lien or assessment on the owner's property. If the city council, by resolution, adopts a fee to defray the expenses to process and conduct a hearing on said appeal, the notice also shall state the amount of the fee and that payment of the fee is a condition precedent to the effectiveness of the owner's right to appeal.

(2) Within ten days from the date of service or mailing of said notice, the property owner may file a written appeal to the proposed lien or assessment and any shall deposit required fee with the director of management services or designee or waive the right to such an appeal. The city council shall hear the appeal at its first regular meeting that is at least 14 calendar days after the date on which the appeal was filed. Written notice of the hearing date shall be served on the owner, at least, ten days prior to the hearing on the appeal. At the hearing on the appeal, the city council shall consider the order of the hearing officer imposing the fine or fines on the cite, the computation of the amount of the proposed lien or assessment, the evidence that the owner owns the property on which the lien or assessment is sought to be imposed, evidence that the record owner of the property on which the lien or assessment is sought has been served with the citation in accordance with this article, and evidence that the violation or violations supporting the order of the hearing officer occurred at or was related to the property on which the assessment lien is sought to be imposed. At the conclusion of the hearing, the city council may adopt, or decline to adopt, a resolution to place a lien or assessment on the property of the owner. The city council also may modify the amount of the proposed lien or assessment. The decision of the city council shall be final.

(3) If no appeal is filed pursuant hereto, the director of management services or designee shall prepare and submit a resolution to the city council that imposes a lien or assessment on the property of the owner. The city council shall adopt the proposed resolution unless it determines that such a lien or assessment would not be appropriate.

(4) The city council may from time to time, by resolution, establish specific code violations or categories of code violations that shall be collected as an assessment or lien and those that shall be collected as personal obligations of a cite.

(5) The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the citation relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the amount shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

(Ord. No. 1476, § 2, 5-17-05)