Fresno County Municipal Code Ch. 10.64 Administrative Penalties for Public Nuisances Created by Cultivation Of…

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Editor's note— Ord. No. 15-003, § 4, adopted Feb. 24, 2015, amended Ch. 10.4 in its entirety, §§ 10.64.010—10.60.080, in effect repealing and reenacting said chapter as set out herein. Former Ch. 10.64 pertained to similar subject matter and derived from Ord. No. 14-001, § 5, adopted Jan. 7, 2014.

This chapter does not in any way supersede Fresno County Ordinance Code Chapter 1.13 Administrative Fines; however, the provisions of chapter 10.60, 10.62, and 10.64 take precedence over chapter 1.13 with respect to any violation of chapter 10.60 and nothing shall prevent the immediate issuance of a citation pursuant to this chapter 10.64 with or without a notice of order of abatement upon confirmation of a violation of chapter 10.60.

(Ord. No. 15-003, § 4, 2-24-2015)

A. This chapter is adopted to achieve the following goals:

1. To protect the public health, safety and welfare of the communities and citizens in the County of Fresno; and

2. To provide a method to penalize responsible parties who fail or refuse to comply with medical marijuana cultivation provisions of the Ordinance Code of Fresno County; and

3. To minimize the expense and delay where otherwise the county must pursue responsible parties in the civil or criminal justice system.

B. The procedures established in this chapter shall be in addition to criminal, civil or any other legal remedy established by law and available to address violations of the Ordinance Code of Fresno County (hereinafter, code).

C. Notwithstanding any other provision of this code, whenever an act, event or condition results in violation of chapter 10.60 of this code, the procedures set out in this chapter may be used to impose a penalty on violators.

(Ord. No. 15-003, § 4, 2-24-2015)

As used in this chapter:

A. "Citation" or "administrative citation" means a civil citation issued pursuant to this chapter stating that there has been a violation of one or more provisions of chapter 10.60 of this code and setting the amount of the administrative penalty to be paid by the responsible party.

B. "Days" means calendar days.

C. "Public official" means the building official, code enforcement officer, sheriff or designees, or any other individual or body appointed by the board of supervisors to enforce codes and which is authorized to administer this chapter.

D. "Responsible party" means an individual, association, copartnership, political subdivision, government agency, municipality, industry, public or private corporation, firm, organization, partnership, joint venture or any other entity whatsoever whose action or actions caused or contributed to violations of codes specified in this chapter.

E. "Year" means three-hundred and sixty-five days.

(Ord. No. 15-003, § 4, 2-24-2015)

A. Any responsible party violating any provision of chapter 10.60 of this code, which is a misdemeanor, that is determined to be a public nuisance may be issued an administrative citation by a public official or the board of supervisors in accordance with this chapter. The administrative citation penalty for each and every medical marijuana plant cultivated in violation of chapter 10.60 shall be: (1) One thousand dollars per plant; plus (2) one hundred dollars per plant per day the plant remains unabated past the abatement deadline set forth in the notice of abatement order.

B. Each and every day a violation of the provisions of the code exists constitutes a separate and distinct offense and shall be subject to citation.

C. The public official may issue a citation for a violation not committed in the official's presence, if the official has determined through investigation that the responsible party did commit or is otherwise responsible for the violation.

(Ord. No. 15-003, § 4, 2-24-2015)

A. The administrative citation shall be issued on a form containing:

1. The name and address of the property owner(s), as such persons' names appear on the last equalized assessment roll, any lessees and responsible parties and the physical address of the property or location where the violation exists or occurred;

2. A statement of the acts, events or conditions which resulted in a violation of the code, including a reference to the appropriate title and chapter and the date of occurrence of the violation(s) included within the citation;

3. The amount of the administrative penalty imposed by the citation;

4. A statement explaining how, where, to whom, and within what number of days the penalty shall be paid;

5. Identification of appeal rights, including the time within which the administrative citation may be contested and how to contest the citation; and

6. The signature of the public official issuing the citation along with the date of issuance of the citation.

B. The administrative citation shall be served upon the owner of the real property, the lessee and any other responsible party. Failure of the public official to serve any party as required in this section shall not invalidate any provisions of this chapter.

C. Service of an administrative citation may be made upon the parties either by personal delivery or by first class mail postage prepaid, return receipt requested, and shall be deemed completed when it is served to the address of record of the responsible party.

D. In lieu of personally serving the parties by personal delivery or first class mail postage prepaid, service of the administrative citation and any amended or supplemental citation may be made.

1. Service may be made by substituted service, and may be accomplished as follows:

a. By leaving a copy during usual business hours with the person who is apparently in charge at the recipient's place of business, and by thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left, or

b. By leaving a copy at the recipient's dwelling or usual place of abode, in the presence of a competent member of the household, and thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left; or

2. In the event the party cannot be served by first class mail postage prepaid, or cannot be personally served and has a property manager or rental agency overseeing the premises, substituted service may be made as set forth above in subsection (D)(1) of this section upon the property manager or rental agency; or

3. Substitute service may be effected by posting the property with the administrative citation and mailing a copy of the citation by first class mail postage prepaid to the party in violation at the address of the property where the violation exists; or

4. If the party cannot be located or service cannot be effected as set forth in this section, service may be made by publication one in a newspaper of general circulation.

E. Failure of any party to receive such administrative citation shall not affect the validity of any proceedings taken under this section against any other party. Service by first class mail postage prepaid in the manner provide in this section shall be effective eon the date of mailing.

(Ord. No. 15-003, § 4, 2-24-2015)

Any person disputing the issuance of an administrative citation may contest the citation by completing a request for hearing form and returning it to the address stated on the form within fifteen days from the date of issuance of the administrative citation. The time requirement for filing a request for hearing form shall be deemed jurisdictional and may not be waived. If no timely appeal is filed, the administrative citation and fee set forth therein is final.

(Ord. No. 15-003, § 4, 2-24-2015)

A. The board of supervisors shall preside at the hearing and hear all facts and testimony presented and deemed appropriate. The hearing shall be set for a date that is not less than ten days from the date of mailing and posting of the notice of hearing. The notice of hearing shall state the date, time and place of the hearing and direct the owners(s), lessees and other responsible parties to appear and show cause why the administrative fine should not be imposed. The notice of the hearing shall be sent by first class mail postage prepaid.

B. The board of supervisors shall only consider evidence that is relevant to whether the violation(s) occurred and whether the recipient of the administrative citation has caused or maintained the violation(s) on the date(s) specified in the administrative citation.

C. Any hearing conducted pursuant to this chapter need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The board of supervisors has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. Personal information about any reporting party related to the violation(s) shall not be disclosed.

D. The board of supervisors may continue the hearing as necessary. The decision of the board of supervisors shall be final upon adoption of an order containing its determination. Notice of the final decision shall be served by certified or registered mail on the affected persons. The administrative penalty is due and payable immediately upon the board of supervisors' decision.

E. Pursuant to Code of Civil Procedure § 1085, any person who has been named in an order issued pursuant to this chapter may, following exhaustion of administrative remedies, seek judicial review of the order by filing a petition for writ of mandate within ninety days after the order becomes final and binding pursuant to this chapter. Notwithstanding the provision of Code of Civil Procedure §§ 1094.5 or 1094.6, any person who contests the final administrative order issued under this chapter regarding the imposition, enforcement or collection of the administrative penalties imposed, may seek judicial review of the order by filing an appeal with the Superior Court within twenty days after service of the order in accordance with Government Code § 53069.4. Any other person who has the right to seek judicial review of the order by filing a petition for writ of mandate pursuant to Code of Civil Procedure § 1085 shall do so within one hundred eighty days after the order has become final and binding pursuant to this chapter. The filing of a petition for writ of mandate to review the order shall stay the collection process of any administrative penalties until final resolution of the court proceedings.

F. The failure of a responsible party to appear at the administrative citation hearing shall be deemed a failure to exhaust administrative remedies.

G. Neither imposition nor payment of an administrative penalty shall relieve the responsible party from his/her obligation to correct the violation, nor shall it bar further enforcement action by the public official.

(Ord. No. 15-003, § 4, 2-24-2015)

A. In the event the responsible party fails to pay the administrative penalty when due, the county may take any actions permitted by law or ordinance to collect the unpaid penalty, which shall accrue interest at the legal rate of judgment interest in the State of California, commencing thirty days after the administrative penalty becomes due and continuing until paid.

B. In the event a civil action is commenced to collect the administrative penalty, the county shall be entitled to recover all costs associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the enforcement, investigation, establishment and the collection or processing of the penalty and those costs set forth in Code of Civil Procedures §§ 685.010 et seq. and 1033.5.

C. The amount of any unpaid administrative penalty, plus any other costs as provided in this chapter, may be declared a lien on real property owned by the responsible party within the county as follows:

1. Notice shall be given to the responsible party prior to the recordation of the lien, and shall be mailed first class mail postage prepaid to the last known address; and

2. When the public official records a lien listing delinquent unpaid administrative penalties with the county recorder's office, the lien shall specify the amount of the lien, the date of the code violations, the date of the final administrative decision, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name of the owner of the parcel according to the last equalized assessment roll; and

3. In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge and release of the lien shall be prepared by the public official.

D. The amount of the unpaid administrative penalty, plus any other costs as provided by this chapter, may be declared a special assessment against any real property owned by the responsible party and located within the county. The board of supervisors may impose the special assessment on one or more parcels. The amount of the assessment shall not exceed the amount of administrative penalty imposed for the violation, plus any cost authorized by other chapters of this code. The public official may present a resolution to the board of supervisors to declare a special assessment, and, upon passage and adoption thereof, shall cause a certified copy to be recorded with the Fresno County recorder's office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary property taxes.

E. The county may withhold issuance of licenses, permits and other entitlement for any property whenever an administrative penalty resulting from a code violation on that property remains unpaid or the owner of the property has outstanding, unpaid administrative penalties for violations of the code.

F. The county may take any action permitted for enforcement of a civil money judgment pursuant to the Enforcement of Law, California Code of Civil Procedure Section 680.010 et seq.

(Ord. No. 15-003, § 4, 2-24-2015)