Imperial County Municipal Code Ch. 1.40 Administrative Enforcement Procedure and Process

"Authorized person" means hearing officer, board, commission, agency or department head or their respective designee or any other person authorized by the board of supervisors to preside over the administrative process and procedure.

"Code enforcement officer" means any person authorized by a department head or director to enforce county ordinances and applicable state codes, rules and regulations,

This definition includes, but is not limited to illegal dumping officer, vector control officer, etc.

"Responsible party" means any person or legal entity that has a possessory, equitable or beneficial interest in the subject property.

"Tenant" or "occupant" means any person holding a written or an oral lease of, or who occupies the whole or any part of a building or land, either alone or with others.

"Written notice" means a written document which informs a person of the time, date and place for a hearing, the nature of a penalty or corrective action required of that person, and the code section(s) applicable to the proceeding.

"Hearing" may be used for both hearing and appeal.

(Ord. No. 1454, § 5, 10-27-09)

It is the purpose and intent of the board of supervisors to establish rules and procedures for the conduct of administrative hearings required by statute, code or regulations in order to insure due process is accorded to affected parties. This chapter sets forth the administrative enforcement process which includes service of notice and holding of administrative hearings and appeals.

(Ord. No. 1454, § 5, 10-27-09)

This chapter shall be applicable to administrative procedures regarding the denial, suspension or revocation of a permit, license or entitlement. This chapter may also be applicable where the code authorizes a hearing unless an alternative procedure is designated by this code.

(Ord. No. 1454, § 5, 10-27-09)

A notice shall contain the following information:

1. Name of responsible party;

2. Date of notice;

3. Date, location, time of hearing;

4. Purpose of hearing;

5. Date for response;

6. Applicable statutes and/or code sections; and

7. Name of authorized person holding the hearing.

(Ord. No. 1454, § 5, 10-27-09)

A. Whenever a notice is required to be given under the code for a hearing, appeal or enforcement of a proposed order, the notice shall be served by any of the following methods:

1. Personal service upon the responsible party whenever possible;

2. Certified mail with return receipt requested. Simultaneously, a duplicate notice shall be sent by regular mail; or

3. Posting the notice conspicuously on or in front of the property. Simultaneously, a duplicate notice shall be sent by regular mail.

B. Notice shall be mailed to the last address shown on the county tax assessor's records if the notice concerns real property. Notice shall also be mailed to the last known address of any other party to the proceeding.

C. Posting a notice or duplicate service by regular mail in the manner described above shall be deemed effective on the third day after mailing or posting; service by certified mail shall be effective as of the date of signed receipt.

D. Service of notice through which a lien will be placed upon real property will be in accordance with Code of Civil Procedure Sections 415.10, 415.20,415.30, or 415.40, if the responsible party resides out of state.

E. The failure of any party with an interest in the property or the proceeding to receive any notice that has been duly sent or posted in accordance with this section shall not affect the validity of any proceedings taken under this code.

(Ord. No. 1454, § 5, 10-27-09)

Proof of service of any notice required by this code may be made by certificate or affidavit of an officer or employee of this county or by affidavit of any person over the age of eighteen (18) years. The proof of service shall show that service was done in conformity with this code and any other provisions of law applicable to the subject matter concerned.

(Ord. No. 1454, § 5, 10-27-09)

The fee for an administrative hearing shall be equal to the amount of the applicable fine, not to exceed one thousand dollars ($1,000.00). If the decision determines that the original fine was not appropriate, the hearing fee shall be refunded. If the citation/decision/order is affirmed, the fee shall be applied as payment of, or toward, the administrative citation or civil penalty.

The fee to request a hearing or an appeal of all other types of administrative orders, unless specified otherwise in the code, shall be in the form of a deposit. The fee amount shall be determined by the specific department head based on the anticipated staff cost to conduct the hearing or appeal. If the cost of the hearing or appeal exceeds the deposited amount, the requesting party shall be responsible for payment of the additional costs incurred. If it is determined that the administrative order is not supported by the evidence, the entire deposited amount will be returned to the party that requested the appeal and no other costs shall be imposed.

(Ord. No. 1454, § 5, 10-27-09)

Upon the filing of a request for a hearing or an appeal and payment of the required fee, if an authorized person does not then currently exist, the department head shall appoint a hearing officer or other authorized person who shall be neutral and unbiased as to the specific factual matter in contention. The authorized person may be appointed either from within the county staff or outside sources. Compensation may be provided to outside sourced hearing examiners.

(Ord. No. 1454, § 5, 10-27-09)

The department head or designee shall serve notice pursuant to CVMC upon a party whose permit, license or entitlement has been denied, or is to be suspended or revoked, or against whom administrative enforcement action is proposed, that they shall be allowed ten (10) calendar days (thirty (30) days for out-of-state residents per Code of Civil Procedures Section 415.40) to request an administrative hearing to appeal or contest that proposed action before it will become final. The request for hearing must be made no later than ten (10) calendar days from the date of notification of the proposed action. The proposed action shall become final and conclusive if not appealed or contested. Except as provided in CVMC 1.40.060, the proposed action shall be stayed if properly appealed, and be made final following the issuance of a decision by a hearing officer or other authorized person. Upon receipt of a request for hearing, all parties shall be notified of the time and place of the hearing, allowing a minimum of ten (10) calendar days from the date the notice is mailed before the hearing is to be held.

(Ord. No. 1454, § 5, 10-27-09)

The hearing shall be conducted in accordance with the following procedures:

A. The authorized person may issue subpoenas, administer oaths or affirmations and conduct the hearing.

B. Oral evidence shall be taken only on oath or affirmation.

C. Each party shall have the following rights:

1. To be represented by legal counsel;

2. To call and examine witnesses;

3. To introduce evidence;

4. To cross-examine opposing witnesses on any matter relevant to the issues, even though the matter was not covered in the direct examination;

5. To impeach any witness regardless of which party first called the witness;

6. To testify in his or her own behalf; and

7. To call the other party as a witness and examine that party as if under cross-examination.

D. The hearing shall not be conducted according to the technical rules of procedure and evidence. Any relevant evidence shall be admitted if it is the sort of evidence upon which responsible persons are accustomed to rely on in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient by itself to support a finding unless it would also be admissible over objection in civil actions. Irrelevant and unduly repetitious evidence may be excluded.

E. The proponent of any testimony to be offered by a witness who does not proficiently speak the English language shall provide an interpreter. The cost of the interpreter is to be paid by the proponent.

F. The county will use its best effort to record the hearing, but is not legally obligated to do so. Any recording will be retained for a period not to exceed two years. A party may obtain a transcript or recording of the proceedings upon payment of the costs of preparation or duplication.

G. The hearing may not be used as a substitute for discovery pursuant to the Code of Civil Procedure and any inquiry or discovery in violation of this subsection is not competent or admissible against the party against whom it is to be used upon appropriate motion or objection of that party.

H. The hearing may, at the discretion of the authorized person, be continued from time to time upon request of a party to the hearing and upon a showing of good cause.

I. An administrative record certified by the authorized person that meets the following criteria shall constitute prima facie evidence in support of the proposed action:

1. The condition(s), act(s) or omission(s) upon which the proposed action is based;

2. The regulatory authority for the proposed action; and

3. Technical or factual data supporting the proposed action.

J. Once a prima facie showing has been made, the burden of going forward shall shift to the opposing party, who may then cross-examine on the basis of the administrative record and call witnesses appropriate to aid in examination of the administrative record. The opposing party may call additional witnesses and introduce additional evidence appropriate for opposition, defense or mitigation of the proposed action.

K. The standard of proof required to render the decision is a preponderance of the evidence. A preponderance of the evidence is established when the weight of the evidence supporting the existence of a fact in contention has the more convincing force, when balanced against that evidence refuting the existence or applicability of the same fact in contention.

L. The decision shall be based upon findings supported by evidence.

M. The authorized person may impose conditions and deadlines for corrective action and reduce, waive or conditionally suspend any fines or penalties proposed when the authorized person concludes that such action is equitable and more likely to bring about compliance with the proposed order.

N. A final decision shall be issued by the hearing officer or other authorized person. The date of mailing of the final decision to the party by first class mail, with certificate of service attached, shall constitute the date of the exhaustion of administrative remedies. A party shall be advised that it has ninety (90) days, pursuant to the California Code of Civil Procedure Section 1094.6, from that date in which to file for a writ of mandamus or other applicable judicial review, except that if the determination is made as to a decision imposing an administrative penalty, fine or charge under Chapter 1.41 of this code, the time to appeal to the municipal court is limited to twenty (20) days pursuant to California Government Code Section 53069.4. Failure to file for judicial review within the applicable time limit makes the final decision nonappealable and confirmed. Until a timely request for judicial review is filed, enforcement of the final decision may proceed in due course.

O. Failure to appear at a hearing or an appeal constitutes a failure to exhaust administrative remedies.

(Ord. No. 1454, § 5, 10-27-09)

When a department head makes the determination that immediate action is necessary to summarily abate a dangerous conditions or an imminent threat to life or safety on public or private property, the provisions for prior notice and hearing may be dispensed with. Only such action as is reasonably necessary to summarily abate the dangerous condition or imminent threat shall be taken. Written notice of the abatement activity and the opportunity for a post-action hearing shall be given as soon as possible following the completion of the action.

(Ord. No. 1454, § 5, 10-27-09)

The authorized person may consolidate one or more administrative processes and order if consolidation would be more efficient and cost effective.

(Ord. No. 1454, § 5, 10-27-09)