Kern County Municipal Code Ch. 8.54 Administrative Penalty

This chapter shall hereinafter be referred to as the Kern County administrative penalty ordinance and is enacted pursuant to Government Code Section 53069.4.

(Ord. G-7388 § 2 (part), 2006: Ord. G-6530 § 7 (part), 1998)

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 Kern; and

2. To provide a method to penalize responsible parties who fail or refuse to comply with certain provisions of the Ordinance Code of Kern 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 Kern County (hereinafter, code).

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

(Ord. G-7388 § 2 (part), 2006: Ord. G-6530 § 7 (part), 1998)

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 the 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, fire chief, health officer 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 (365) days.

(Ord. G-7388 § 2 (part), 2006: Ord. G-6530 § 7 (part), 1998)

A. Any responsible party violating any provision of this code may be issued an administrative citation by a public official or the board of supervisors in accordance with the provisions of this chapter.

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 also petition the board of supervisors to impose an administrative penalty under this chapter when, in the judgment of the public official, the amount of the administrative penalties prescribed in Section 8.54.120 are not adequate in light of the circumstances, pursuant to Section 8.54.110.

D. 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. G-7388 § 2 (part), 2006: Ord. 6553 § 8, 1998: Ord. G-6530 § 7 (part), 1998)

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

1. The name and address of the responsible party and, if applicable, 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. In the case of a continuing violation issued under subsection (D) of Section 8.54.120, the number of days provided to correct the violation prior to the administrative penalty becoming effective;

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

7. 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 responsible party. Failure of the public official to serve any responsible party as required in this section shall not invalidate any provisions of this chapter, nor shall it relieve any responsible party from any duty or obligation required by the code.

C. Service of an administrative citation may be made upon the responsible party 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 responsible party 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 responsible 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 responsible party in violation at the address of the property where the violation exists; or

4. If the responsible party in violation or other person entitled to service cannot be located or service cannot be effected as set forth in this section, service may be made by publication once in a newspaper of general circulation.

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

(Ord. G-7388 § 2 (part), 2006: Ord. G-6530 § 7 (part), 1998)

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 (15) days from the date of issuance of the administrative citation, together with an advance deposit of the full amount of the penalty. Any administrative citation penalty that has been deposited shall be refunded if it is determined, after a hearing, that the person or entity charged with the violation was not responsible for the violation or that there was no violation as charged in the administrative citation. The time requirement for filing a request for hearing form shall be deemed jurisdictional and may not be waived.

(Ord. G-7388 § 2 (part), 2006)

A. Any person who intends to request a hearing under Section 8.54.060 and is financially unable to make the advance deposit as required in that section may file a request for an advance deposit hardship waiver.

B. The request shall be filed with the director of the department issuing the administrative citation within ten (10) days of the date of the issuance of the citation.

C. The requirement of depositing the full amount of the administrative penalty as described in Section 8.54.060 shall be stayed unless and until the director makes a determination not to issue the advance deposit hardship waiver.

D. The director may waive the requirement of an advance deposit and issue the waiver only if the person receiving the administrative citation submits to the director a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the director the person's actual financial inability to deposit with the county the full amount of the penalty in advance of the hearing.

E. If the director determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the county within ten (10) days of the date of the decision or thirty (30) days from the date of issuance of the administrative citation, whichever is later.

F. The director shall issue a written decision explaining the reasons for his or her determination to issue or not issue the advance deposit hardship waiver. The written decision of the director shall be final.

G. The written decision of the director shall be mailed to the person who applied for the advance deposit hardship waiver at the address provided in the application.

(Ord. G-7388 § 2 (part), 2006)

A. The director of the department issuing the administrative citation shall appoint a person or contract an agency to provide a person who shall preside at the hearing and hear all facts and testimony presented and deemed appropriate (hereinafter "hearing officer").

B. The employment, performance, evaluation, compensation and benefits of the hearing officer, if any, shall not be directly or indirectly conditioned on or in any way related to the results or prior decisions issued by said hearing officer.

C. Any person designated to serve as a hearing officer is subject to disqualification for bias, prejudice, interest or for any other reason for which a judge may be disqualified pursuant to Code of Civil Procedure Section 170.1. The responsible party may challenge the hearing officer's impartiality by filing a statement with the director of the department issuing the administrative citation objecting to the hearing officer and setting forth grounds for disqualification. The question of disqualification shall be heard and determined in writing by the department director or his or her designee within ten (10) days following the date which the disqualification statement is filed.

(Ord. G-7388 § 2 (part), 2006)

A. No hearing to contest an administrative citation before a hearing officer shall be held unless both a request for hearing form has been completed and timely submitted and the amount of the penalty for the citation has been deposited in advance, unless a waiver has been granted under Section 8.54.065 of this chapter.

B. A hearing before the hearing officer shall be set for a date that is not less than twenty (20) days but no more than ninety (90) days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The responsible party requesting the hearing shall be notified of the time and place set for hearing at least ten (10) days prior to the date of the hearing.

C. The hearing officer 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.

D. Any administrative 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 hearing officer 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.

E. The hearing officer may continue the hearing as necessary.

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

(Ord. G-7388 § 2 (part), 2006)

A. Within ten (10) days of the conclusion of the hearing, the hearing officer shall provide the responsible party with a written decision ("administrative order"). The hearing officer shall serve the administrative order on the responsible party by personal service or registered or certified mail at the responsible party's last known address.

B. The administrative order shall contain the hearing officer's findings of fact and conclusions and a statement regarding the procedure described in Section 8.54.100 for seeking review by the board of supervisors or chief general services officer. The decision of the hearing officer shall be final except as provided in Section 8.54.100.

C. A decision in favor of the responsible party shall constitute a dismissal of the administrative penalty and the county shall return any monies paid by the responsible party.

D. If the hearing officer renders a decision in favor of the county, the responsible party must comply with the administrative order, including payment of any administrative penalty, or seek review under Section 8.54.100.

(Ord. G-7388 § 2 (part), 2006)

(Ord. No. G-8815, § 2, 3-19-19)

A. Appeal to Board of Supervisors.

1. A responsible party who is subject to an administrative order issued by a hearing officer pursuant to Section 8.54.090, may contest the administrative order by filing an appeal with the clerk of the board of supervisors within fifteen (15) days from service of the administrative order.

2. The decision of the hearing officer may be considered de novo by the board of supervisors. The board of supervisors may reverse, affirm wholly or partly, or modify the administrative order. The decision of the board of supervisors on any such appeal shall be final on adoption of an order containing its determination. Notice of the final decision shall be served by certified or registered mail on the affected persons.

B. Appeal to the Chief General Services Officer.

1. Notwithstanding paragraph A of this section, to contest an administrative order issued pursuant to Section 8.54.090 for a violation of section 8.28.070, 8.28.080, 10.04.030, 10.44.030, 13.040.060, 13.04.061, 13.04.063, 13.04.065, 13.04.070, 13.04.090, 13.04.091, 13.04.100, 13.04.140, 13.04.210, 13.08.140, 13.08.190, 13.20.020, 13.20.050, 13.20.070, 13.20.140, 13.40.060, 13.48.090, 13.48.220, 13.48.250, 13.48.290, 13.48.310, 13.48.320, or 13.48.720 of this code, the responsible party shall file an appeal with the chief general services officer within fifteen (15) days of service of the administrative order.

2. The decision of the hearing officer shall be considered de novo by the chief general services officer or a designee who is not involved in the citation, enforcement, or collection process for such violations. The chief general services officer or designee may reverse, affirm wholly or partly, or modify the administrative order. The decision of the chief general services officer or designee on any such appeal shall be final on the issuance of an order containing their determination. Notice of the final decision shall be served by certified or registered mail on the affected persons.

C. Pursuant to Section 1085 of the Code of Civil Procedure, 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 (90) days after the order becomes final and binding pursuant to this chapter. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, any person who contests the final administrative order issued under this chapter regarding the imposition, enforcement of collection of the administrative penalties imposed, may seek judicial review of the order by filing an appeal with the superior court within twenty (20) days after service of the order in accordance with Section 53069.4 of the Government Code. Any other person who has the right to seek judicial review of the order by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure shall do so within one hundred eighty (180) 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 not stay any action specified in the order.

(Ord. G-7388 § 2 (part), 2006)

(Ord. No. G-8815, § 2, 3-19-19; Ord. No. G-8985, § 4, 1-5-21)

A. The public official may request a hearing before the board of supervisors to consider imposing a civil penalty in an amount or at a time different than provided for in Section 8.54.120. Notice of the hearing shall be sent by first class mail postage prepaid to the persons to whom the penalty is to be imposed against.

B. The notice shall state the date, time and place of the hearing, which in no event shall be sooner than ten (10) days from the date of mailing and posting such notice unless mutually agreed to by the property owner or responsible party and the public official, the specific violations, conditions, or uses which constitute the code violation on which the penalty is based.

C. The failure of any property owner, responsible party, mortgagee, trust deed beneficiary or other person to receive any notice required to be given or posted pursuant to the provisions of this chapter shall not affect in any manner the validity of any proceedings taken hereunder.

D. At the time fixed in the notice, the board of super-visors shall proceed to hear testimony from any interested person regarding the specified violation, condition or use deemed by the public official to be the basis for the proposed administrative penalty, and any other matter which the board of supervisors may deem pertinent thereto.

E. Upon the conclusion of the hearing the board of supervisors will make a determination based on the evidence presented at the hearing, and may impose a civil penalty without regard to the limits in Section 8.54.120, which shall thereafter be collected pursuant to this chapter.

F. The decision of the board of supervisors shall be final and the administrative penalty payable immediately.

(Ord. G-7388 § 2 (part), 2006)

A. Unless provided otherwise in this code, administrative penalties for the violation of any ordinance which is an infraction shall be assessed as follows:

1. Except as provided in subdivision (2) of this section a fine not exceeding one hundred dollars ($100.00) for a first violation; a fine not exceeding two hundred dollars ($200.00) for a second violation of the same ordinance within one year from the date of the first violation; and a fine not exceeding five hundred dollars ($500.00) for each additional violation of the same ordinance within one year from the date of the first violation.

2. A violation of any local building and safety code shall be punishable by a fine not exceeding one hundred dollars ($100.00) for a first violation; a fine not exceeding five hundred dollars ($500.00) for a second violation of the same ordinance within one year from the date of the first violation; and a fine not exceeding one thousand dollars ($1,000.00) for each additional violation of the same ordinance within one year from the date of the first violation.

B. Unless provided otherwise in this code, administrative penalties for the violation of any ordinance designated as a misdemeanor shall be assessed as follows: a fine not exceeding two hundred fifty dollars ($250.00) for the first violation; a fine not exceeding five hundred dollars ($500.00) for the second violation of the same ordinance within one year from the date of the first violation; and a fine not exceeding one thousand dollars ($1,000.00) for each additional violation of the same ordinance within one year from the date of the first violation.

C. Except as specified in subsection D of this section, upon issuance of the administrative citation, the administrative penalty shall be due immediately.

D. Where the administrative citation is issued for a continuing violation, unless the violation creates an immediate danger to health or safety, the responsible party shall be provided with an opportunity to correct the violation prior to the imposition of the administrative penalty in accordance with the following:

1. If a responsible party fails to correct any violation within thirty (30) days after the administrative citation is served under Section 8.54.050, the administrative penalty established by the administrative citation shall become effective and due immediately.

2. The administrative penalty, or any portion thereof, for a first-time violation which has become effective following the thirty (30) day corrective period may be waived by the public official in his sole discretion only if the responsible party corrects the violation in accordance with all conditions established by the public official.

E. 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. G-7388 § 2 (part), 2006)

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 a rate of ten percent (10%) per month, commencing thirty (30) 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 Sections 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 (1) 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 Kern 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. G-7388 § 2 (part), 2006)