Hesperia Municipal Code Art. III Special Enforcement Provisions

A. The city council has provided that certain code violations or public nuisances shall be enforced, corrected or abated in accordance with special provisions stated in the code. Where applicable, the enforcement officer shall first determine whether an alleged code violation or public nuisance is governed by such special provisions. In the event such special provisions apply, the enforcement officer shall proceed in accordance with any alternative procedures or penalties prescribed therein. To the extent such special provisions conflict or augment the enforcement procedures provided for in this chapter the special provisions shall govern.

B. Special provisions have been enacted relating to the following circumstances:

1. Abatement concerning massage parlors pursuant to Section 5.20.080 et seq. of Title 5 of the code;

2. License suspension and revocation concerning sexually oriented business pursuant to Section 5.48.090 et seq. of Title 5 of the code;

3. Penalties concerning blinder racks pursuant to Section 5.52.030 of Title 5 of the code;

4. Penalties concerning telecommunication services and system pursuant to Section 5.64.600 of Title 5 of the code;

5. Penalties concerning smoking pursuant to Section 8.12.110 of Title 8 of the code;

6. Abatement and removal of vehicles pursuant to Section 8.16.010 et seq. of Title 8 of the code; and

7. Weed and rubbish abatement.

a. Removal of Combustible Vegetation, Weeds and Refuse Required—Notice Provisions.

Whenever combustible vegetation, weeds or refuse as defined in Section 1.04.050 of this code exist upon any private lot, the enforcement officer shall inspect the property and cause notice to be mailed to the property owner of record requiring that any such combustible vegetation and weeds be destroyed or removed and refuse be removed by the owner or occupant within thirty (30) days from and after the date of such notice. In the event such weed or refuse are not so destroyed or removed within such time, or if a hearing is not timely requested as provided for in Section 1.12.130(B)(7)(c), the enforcement officer shall forthwith cause the same to be destroyed or removed and he and other employees of the city and any contractors for the city may enter upon the property for such purpose. Such notice shall be in the following form:

Pursuant to Hesperia Municipal Code Chapter l.12.130(B)(7) notice is hereby given that combustible vegetation, weeds and/or refuse are situated upon this lot, and are a public nuisance. Said combustible vegetation and weeds are required to be destroyed or removed, and any such refuse is required to be removed from this lot, and the public nuisance thus abated, within thirty (30) days after the date of this notice, unless within fourteen (14) days after said notice date a person interested in this lot files in writing with the City Clerk of the City of Hesperia, a request for hearing before the City Council to consider objections to this abatement order. Said hearing shall be at the next regularly scheduled City Council meeting, or any adjournment thereof, after filing of said request. The date, time and place may be obtained from the City Clerk. If a hearing is so requested, said public nuisance is required to be abated within fourteen days after the date of said notice, or within five days after the decision of the Council, whichever is later, unless a longer period is directed by said Council. If said public nuisance is not abated as required, the Hesperia Fire District will abate or cause it to be abated, and the costs thereof shall be immediately due and payable and shall be assessed against this lot and become a lien thereon. A hearing before the Council to consider objections to said costs will be held on ________, 20___. Said cost can be obtained from the City Clerk ten days before said hearing date. Said city of Hesperia Ordinance is available in the office of the City Clerk.

Dated and Posted

CITY OF HESPERIA

By ___________ Public Official

b. Written Notification.

Within three business days after inspecting the property, the enforcement officer shall send a written notification to the property owner, along with a response action card, through the United States mail, first class, postage prepaid, to the owner of the subject property as shown upon the last equalized assessment roll then available to the city, which shall describe the property on which the inspection had been conducted by street address, property or by any other description sufficient to identify the property. Such notice shall thereupon repeat the wording as outlined in Section 1.12.130(B)(7)(a), including the date thereof and the name of the public official so giving notice. The property owner will have fourteen (14) days to return a response action card to the fire district. If a response card is not returned by a property owner the enforcement officer will verify the property owner information and send a second notice requesting compliance when the enforcement officer determines that an immediate hazard exists. Said items creating the hazard shall be removed within seventy-two (72) hours. A non-compliance notice shall be sent via first class mail by the enforcement officer within ten days after the abatement due date. A non-compliance notice is sent when the property owner has partially removed the fire hazard or notified the fire district that the hazard has been abated and the fire district determines that the fire hazard still exists.

c. Hearing.

Any person with an interest in any property who receives a "Notice to Destroy Weeds and to Remove Refuse" may, within fourteen (14) days of such notice, request a hearing before the city council with respect to the abatement order. Such request shall be in writing and shall identify the property and the interest of the person making such request for a hearing. It shall be automatically scheduled for the next regular city council meeting at which the council shall hear and consider all objections to the abatement order.

It shall be the responsibility of the party requesting the hearing to ascertain from the city clerk the date, time and place of the hearing. The hearing may be continued from time to time. By motion or resolution at the conclusion of the hearing, the council shall allow or overrule any objections. The decision of the council shall be final and conclusive and the burden shall be upon the objecting party to show that the abatement order is improper.

In holding such hearing, the council need not adhere to formal rules of evidence. In the event the objections are overruled, the owner and/or occupant will cause such abatement within five days after the date of such hearing or within fourteen (14) days from and after the date such notice was mailed, whichever is later, unless a longer period is permitted by the city council in its motion or resolution overruling such objections.

d. Abatement Procedures.

i. The enforcement officer shall review parcel maps in the field to identify parcels owned, leased, controlled, operated or maintaining building or structures in or upon adjoining hazardous fire areas, or parcels owned, leased or controlled lands adjacent to such buildings or structures, or in areas of close proximity to buildings or structures that may constitute a fire hazard as defined in Section 1.04.050.

ii. The enforcement officer shall assure that an effective firebreak is developed by the removal and clearing away of all combustible vegetation from areas within thirty (30) feet of the property line containing such building or structures.

(A) Combustible vegetation and weeds within the firebreak area shall be treated (mowed, mulched, converted to compose, etc.) or removed frequently. The tractor operator should not discard or scrap the soil. Combustible vegetation on a fifteen (15) percent slope or greater shall be removed using hand tools. Motorized tractors will not be permitted on slopes greater than fifteen (15) percent.

(B) Combustible ground vegetation should be maintained at a height that will preclude it from functioning as a ladder for fire to travel into larger vegetation and trees.

(C) Live vegetation within the firebreak area should have dead material removed and shall be thinned and pruned to reduce fire intensity and rate of spread.

(D) Dead trees within the firebreak area shall be removed.

(E) Dead tree limbs within six feet of the ground shall be removed.

(F) Dry grass should be reduced to less than four inches in height.

iii. Maintain additional fire protection or firebreak by removing and clearing away combustible vegetation from within thirty (30) to one hundred (100) feet of buildings or structures in areas of substantial or very high hazard severity zones.

iv. Additional firebreaks, a minimum of thirty (30) feet, should be created along both thereby reducing the spread of fire during windy conditions.

v. Remove or clear combustible vegetation located upon property that may be considered a fire hazard and is in proximity of buildings or structures.

(A) Portions of trees which extend within ten feet of a chimney outlet.

(B) Trees adjacent to or overhanging a building shall be free of dead wood, with roofs free of leaves, needles or other dead vegetative growth.

(C) Combustible vegetation found along easements and within ten feet of a roadway.

vi. Remove all tumbleweeds (Russian Thistle) from parcels that would constitute a fire hazard.

vii. Remove all refuse from the property;

8. Abatement and removal of graffiti pursuant to Section 9.08.010 et seq. of Title 8 of the code;

9. Penalties for skateboards and similar devises pursuant to Section 9.14.020 of Title 9 of the code;

10. Penalties relating to pedestrians pursuant to Section 10.16.040 of Title 10 of the code;

11. Penalties relating to speed limits pursuant to Section 10.20.090 of Title 10 of the code;

12. Suspension and revocation of film permits and violations thereof pursuant to Section 12.28.150 et seq. of Title 12 of the code;

13. Penalties relating to operation of mobile home parks pursuant to Section 15.20.100 of Title 15 of the code;

14. Potentially dangerous or vicious animals.

a. Public Nuisance.

Potentially dangerous animals and vicious animals are hereby declared a public nuisance.

b. Declaration of Potentially Dangerous Or Vicious.

When an enforcement officer has probable cause, or if there are two sworn statements from witnesses, that an animal is potentially dangerous or vicious, they may set a hearing to determine if the animal should be declared a public nuisance.

The enforcement officer shall notify the owner or keeper of the animal that an administrative hearing will be conducted, at which time the owner may present evidence as to why the animal in question should not be declared potentially dangerous or vicious.

Notice of the hearing shall be served on the owner, either in person, or by first class mail, certified return receipt, at the owners last known address at least five days but not more than ten days prior to the hearing. Service shall be deemed complete when the notice is personally served or deposited in the mail. Failure to receive notice shall not affect the validity of the hearing.

Notice shall include the date, time, and location of the administrative hearing, a statement that the purpose is to determine whether their animal (named and described) is a potentially dangerous or vicious animal, that if found to be potentially dangerous or vicious certain remedies, up to and including destruction, may be demanded, and that you will have five days from the receipt of the notice of the findings to make the corrections or the animal will be destroyed.

The hearing shall be conducted at the time and location specified. The hearing officer may admit into evidence all relevant evidence, including incident reports and affidavits of witnesses.

c. The hearing officer may find, upon a preponderance of evidence, that the animal is potentially dangerous or vicious and may order any of the following:

i. The dog or animal shall be properly licensed and vaccinated. The city shall include the potentially dangerous or vicious designation in the registration records. The city may charge an additional fee to maintain the records of the animal.

ii. Dog or animal shall be maintained on owner's property and be kept indoors or in a securely fenced yard from which the dog or animal cannot escape.

iii. Dog or animal shall be maintained in a covered chain-link run with cement flooring and locked gate from which the dog or animal cannot escape and into which children cannot trespass. Said run shall provide shelter from the elements.

iv. The dog or animal cannot be off the owner's premises unless it is restrained by a substantial leash and muzzled (if appropriate) under the control of a responsible adult.

v. If the dog or animal dies or is sold, transferred or permanently removed from the city where the owner resides, the owner shall notify the city of the changed condition and new location of the dog or animal within two days in writing.

vi. The dog or animal owner shall pay all costs incurred by the city for housing, maintenance, feeding, and vet care during such time the dog or animal is in the custody of the city.

vii. Dog or animal shall be required to be sterilized.

viii. Any person keeping or harboring any dog or animal deemed vicious within the city must provide proof of ability to respond in damages up to one hundred thousand dollars ($100,000.00) by obtaining a policy of insurance coverage in said amount for bodily injury to, or death of, any person or persons or for damage to property owned by any other person or persons or damage to property owned by any other person which may result from the ownership, keeping or maintenance of such dog or animal.

ix. You have five days from the date you receive the written notice of the findings and orders in the hearing to comply with required corrections and pay all fees and/or fines associated with this hearing. On day six the dog or animal will become property of the animal control and be disposed of.

x. Animal control has the right to inspect the property at any reasonable time after giving twenty-four (24) hours written notice for violations of the findings and orders in the hearing. In the event the owner fails to meet the required conditions from the findings and orders in the hearing, animal control may impound the dog or animal and take it to the shelter or otherwise dispose of such dog or animal, so that it may not become a menace to the public.

xi. The dog or animal shall be destroyed.

d. Determination and Orders—Notice—Compliance—Decision Final.

After an administrative hearing is conducted pursuant to this section, the owner or keeper of the animal shall be notified in writing of the determination and orders issued, either personally or by first class mail, postage prepaid. If a determination is made that the animal is potentially dangerous or vicious, the owner or keeper shall comply with those orders made by the hearing officer in accordance with any time schedule established, but in no case more than thirty (30) days after the date of the determination or thirty-five (35) days if the notice of determination is mailed to the owner or keeper of the dog or animal. The findings and orders by the hearing officer may be appealed to the superior court.

e. Seizure and Impoundment of Animal.

If upon investigation it is determined by the enforcement officer that probable cause exists to believe that the animal in question poses an immediate threat to the public safety, the enforcement officer may seize and impound the animal pending the administrative hearing to be held pursuant to this section. The owner or keeper of the animal shall be liable to the city for all costs and expenses of keeping the animal if the animal is found to be potentially dangerous or vicious. When an animal has been impounded, and it is not contrary to public safety, the enforcement officer may permit the animal to be confined at the owner's expense in a city approved kennel or veterinary facility.

f. Cost Assessment When Animal is Seized.

If it is determined at the administrative hearing as provided in this section that the animal in question is potentially dangerous or vicious, the hearing officer may assess the owner or keeper of the animal for any costs of administration incurred by the city, including but not limited to costs incurred in housing the animal, maintaining and feeding the animal, or for any medical attention required for the animal. Costs assessed shall be charged to the owner or keeper and if unpaid a lien shall be placed upon the owner's real property where the animal was maintained.

g. Restraint or Enclosure of Potentially Dangerous or Vicious Animal.

An animal determined to be potentially dangerous or vicious pursuant to this section shall at all times while not securely confined indoors:

i. Be humanely confined in an area, which is securely fenced and locked so as to prevent trespass by children and from which the animal cannot escape.

ii. When off the property of its owner or keeper, humanely muzzled (if appropriate) and leashed with a substantial leash not to exceed six feet in length and under the control of a responsible adult.

iii. Humanely confined in a vehicle so that it can neither escape nor inflict injury on passers-by.

iv. Be humanely confined in an outdoor fenced enclosure on the property where the animal is kept or maintained so it cannot bite, attack, or cause injury to any person or domestic animal. The enclosure must be anchored solidly to the ground and must be of sufficient structural strength and height to ensure the strict confinement of the animal and to prevent unauthorized access. If necessary to accomplish the intent of containment, a cover over the enclosure and a cement or solid bottom shall be installed. In addition, any and all gates must be kept locked by a substantial lock.

v. A vicious animal may be off the property of the owner or keeper for the purpose of obtaining veterinary care, sale, or given away, complying with the provisions of this section.

vi. When off the property of its owner or keeper or in the care of a veterinarian, the animal shall be securely and humanely muzzled (if appropriate) and restrained with a harness, collar, or choke chain and nylon or leather leash sufficient to restrain the animal not exceeding six feet in length and shall be under the direct charge and control of its owner or adult keeper.

When circumstances warrant, the officer in charge of the animal control division may modify conditions of restraint to accommodate the special needs of dogs or animals.

h. Notice of Disposal or Escape of Potentially Dangerous or Vicious Animal.

The owner or keeper of any animal found to be potentially dangerous or vicious, pursuant to this section, shall notify the animal control division immediately if the animal has escaped, is unconfined, has attacked or bitten an animal or human being, or has died. The owner or keeper shall notify the animal control division within forty-eight (48) hours if the animal is sold, transferred, or permanently removed from the place where the owner or keeper resides or kept the animal at the time the animal was determined to be potentially dangerous or vicious. The owner or keeper shall also inform the animal control division of any new name, address, and phone number of any new owner or keeper of said animal.

i. Owners of Potentially Dangerous or Vicious Animal to Permit Compliance Inspection. The owner or keeper of the potentially dangerous or vicious animal, determined to be potentially dangerous or vicious pursuant to this section shall consent to inspection of the property where the animal is kept upon twenty-four (24) hour written notice by the animal control division. Said inspection shall be set at a reasonable time and manner to verify full compliance with the requirements of this section and/or the requirements of the orders issued by the hearing officer.

j. Keeping of Potentially Dangerous or Vicious Animal. It is unlawful to own, harbor, or keep any animal found by another jurisdiction to be potentially dangerous or vicious. Any animal that has previously been determined to be potentially dangerous or vicious after an administrative hearing or court order by another jurisdiction will not be allowed to be kept, owned or harbored within the city.

15. Nuisance Vehicles.

a. All rights, title and interest to the vehicle shall vest in the city upon commission of the act giving rise to the nuisance described in Section 8.32.022.

b. Vehicles determined to be nuisance vehicles under Section 8.32.022 are subject to forfeiture and may be seized by any peace officer under the following conditions:

i. Process is served by any court having jurisdiction over the vehicle.

ii. The seizure in incident to an arrest or search pursuant to a search warrant.

iii. There is probable cause to believe that the vehicle was used in violation of Chapter 8.32.022 of this code.

c. If the city determines that the factual circumstances warrant the vehicle was used to commit the act or acts described in Section 8.32.022, the city shall petition the court for forfeiture.

i. The petition shall be filed as soon as practicable, but in any case within one year of the seizure of the vehicle.

ii. The city shall cause notice of the seizure and of the intended forfeiture proceedings, as well as notice that any interested party may file a claim with the Superior Court to any person who has an interest in the vehicle. Notice shall also be posted in a newspaper of general circulation in San Bernardino County. Notice shall include a description of the vehicle, the date and place of the seizure, the violation of the law leading to the forfeiture, and instructions and time limits for filing a claim.

iii. The city shall investigate any claim as the claimant's rights, title, or interest. If the city finds that any person, other than the registered owner, is the legal owner of the vehicle, and that such ownership did not arise subsequent to the date and time of arrest or notification of the forfeiture proceedings or seizure of the vehicle, it shall send a notice to the legal owner at his or her address appearing on the records of the department of motor vehicles or other appropriate agency.

iv. Upon proof by a preponderance of the evidence that the vehicle was used to commit an act or acts described in Section 8.32.022, the court shall declare the vehicle a nuisance and order the vehicle seized, if not previously seized, forfeited and sold with the proceeds distributed pursuant to this section.

v. If no claims are filed, the city shall prepare a written declaration of forfeiture of the vehicle to the court and dispose of the vehicle. Copies of the declaration of forfeiture shall be provided to any person who received notice of the forfeiture proceedings.

d. Upon proof that the vehicle was used for any purpose set forth in Section 8.32.022 the court shall declare the vehicle a nuisance and order the vehicle to be forfeited, sold, and the proceeds distributed as follows:

i. To the mortgage or lien holder of the vehicle, up to the amount of his or her interest in the vehicle, when the court declares a distribution to that person;

ii. To the city for all expenditures made or incurred by it in connection with the seizure, storage, and sale of the vehicle;

iii. Remaining funds, if any, shall be placed in the city's general fund.

e. The city shall return a seized vehicle upon the filing of a timely claim and providing evidence that one of the following exist.

i. The vehicle is owned by two or more persons and there is a community property interest in the vehicle by a person other than the person who used or maintained the vehicle in violation of Section 8.32.022, and that the vehicle is the sole vehicle available to the persons immediate family.

ii. The vehicle is owned by a rental car agency with a duly executed contract with the person who used or maintained the vehicle in violation of Section 8.32.022.

iii. For purposes of this section, a claim shall be filed within ten days of the date of the seizure notice, shall be filed with the Superior Court of San Bernardino County, and shall state the persons interest in the vehicle. The claimant shall serve an endorsed copy of the claim on the city within ten days of filing the claim.

f. Any person who owns, leases, uses or maintains a vehicle in violation of Section 8.32.022, and whose vehicle has been seized, may request to execute a voluntary settlement agreement with the city for return of the vehicle. At the minimum, the agreement shall include the city's reasonable administrative costs including attorney's fees.

g. This section is not the exclusive regulation or penalty for the acts described in Section 8.32.022. It is the intention of the Hesperia City Council to use any and all remedies allowed by this Code and State Law to enforce the provisions of this code.

16. Multiple Police Responses.

a. Purpose and Intent. Large or tumultuous parties, domestic disturbances, gatherings, boisterous activities, or music, or any combination thereof, which interfere with the neighbors' reasonable enjoyment of their property, constitute a threat to public peace, morals, and safety, and elicit numerous calls to the police department. Manpower and resources generally allocated to regular duties or activities and normal services are necessarily shifted when the police have to respond multiple times to the same event. With the rapid growth of the city's population, the problems associated with scarce manpower and resources are exacerbated by this persistent and unbudgeted reallocation of resources. The city has developed a cost recovery mechanism for multiple responses by the police department to unreasonably boisterous events in an effort to deter such disturbances to public peace, morals and safety.

In addition to disturbances and boisterous activities, the occurrence of multiple false alarms requiring police department response and multiple 911 calls where reasonable circumstances are not established have the effect of reducing manpower availability and therefore, threatening public safety. For the purposes of this section, multiple false alarms and/or multiple unreasonable 911 calls shall be considered a disturbance and subject to police multiple response fees.

b. First Warning. Whenever an officer is called to a scene where a disturbance described in subsection (B)(16)(a) of this section is reported, the officer shall leave a written warning with the responsible person as defined in Section 1.04.050 of this code. The written warning shall identify the date, time, and location; include an explanation of the violation, and consequences of subsequent police responses. In addition to the persons described in Section 1.04.050, the responsible person(s) may include the event planner or organizer.

i. In the event there is no responsible person who is an adult at the scene, the parents or legal guardians of the organizer shall be considered the responsible person(s).

ii. In the event that the responsible person cannot be located, the officer shall post the written warning on the front door or primary entrance. If neither is present, the written warning shall be posted where it is visible from the street.

iii. The written warning posted under this section shall establish that there is probable cause of a violation of Penal Code Sections 407, 415 or 416 and/or this section for subsequent calls to the police department.

iv. When written warning is given and the property owner does not reside on the same parcel, a copy of the warning will be mailed to the property owner's mailing address as determined by the San Bernardino County tax rolls.

c. Police Multiple Response Fee. Police multiple response fees shall be as established by resolution of the Hesperia City Council. A police multiple response fee shall be imposed when any member of the City's police department receives a subsequent service request to the same address or parcel. When there is a multiple disturbance at an apartment complex or multi-family dwelling, each unit shall be considered separate dwelling. This fee is in addition to the authority to regulate events and shall supplement, and in no manner supplant, the exercise of any other available law, including, but not limited to, arrest or citation pursuant to the California Penal Code, or local law. The actual cost of the officer(s) time at the scene and any equipment and other expenses may be charged in addition to the police multiple response fee.

The fines for multiple police responses are cumulative for each parcel and shall not sunset. However the following exceptions allow for the disturbance to be dismissed, as long as there are not outstanding fees or fines, and allows the property to return to the First Warning violation stage:

1. The property changes owners and/or tenants. The city may request proof of such change in the tenancy or ownership before releasing the disturbance reports.

2. The property has not had any responses in the past three years beginning on the date of their last response, and all outstanding fees are paid in full.

Should a disturbance be recorded at any time during the three-year period, the property shall return to the response that was last recorded, and be subject to the fees established by resolution and the procedures set forth in this chapter, and the three-year period shall start over.

When a police multiple response fee is imposed and the property owner does not reside on the same parcel, a copy of the invoice and response notice will be mailed to the property owner's mailing address as determined by the San Bernardino County tax rolls.

d. Fireworks. The possession and usage of fireworks requires police and city department response and reduces manpower availability, in addition to creating an unsafe situation and threatening public safety and so shall be considered a disturbance and subject to police multiple response fees.

Responses related to fireworks shall be subject to fees established by resolution of the Hesperia City Council. Additionally, at the discretion of the Police Captain or their designee, any response shall also incur actual costs.

Response for fireworks shall be subject to the probation requirements as required by this chapter for multiple responses.

e. Appeals.

i. Any responsible person receiving a notice by the police for the police multiple response fee, including those for a First Warning, may request a hearing with the police department to appeal the fees and/or notice.

ii. The responsible person must submit a written appeal request to the Hesperia police department. The appeal must include the responsible person's name, the address, date, time, and circumstances of the incident; and an explanation of why the fee is being appealed. A non-refundable appeal fee must accompany the written appeal request.

iii. The written appeal request must be filed within ten days of the date of the response.

iv. Collection of fees on the invoice shall be suspended until the conclusion of the appeal. Should the appeal be denied, any amount due to the city shall be paid within thirty (30) days of the hearing.

v. The Police Chief or his/her designee shall serve as the hearing officer for appeals under this section.

17. Non-Stormwater Discharges.

a. Abatement concerning non-stormwater discharges to the land surface, receiving waters, groundwater, or into the city's MS4 shall be pursuant to Chapter 8.30 of this code.

b. Enforcement concerning non-stormwater discharges to land surface, receiving waters, groundwater, or into the city's MS4 pursuant to Chapter 8.30 of this code.

C. Failure to apply any procedure or penalty made applicable to a code violation or public nuisance by any special provisions set forth in this code shall not invalidate an enforcement procedure commenced by the city for such code violation or public nuisance.

(Ord. 2007-12 § 2 (Exh. A), 2007; Ord. 2004-21 § 3 (Exh. A), 2004; Ord. 2002-08 Exh. B, 2002; Ord. 2001-6 Exh. A (part), 2001)

(Ord. No. 2012-03, § 2, 2-21-12; Ord. No. 2020-03, 2(Exh. B), 4-7-20; Ord. No. 2020-07, § 2, 6-2-20; Ord. No. 2020-08, § 2, 6-2-20; Ord. No. 2022-12, § 2(Exh. A), 9-6-2022)