La Mesa Municipal Code Ch. 1.09 Administrative Citation Appeal Hearing Process

The procedures adopted in this chapter for the selection of administrative hearing officers shall not replace, substitute for, or in any way affect the administrative hearing board processes created by the California codes, uniform codes and national codes adopted by the city and the administrative hearings provided by such codes shall be treated separate and apart from the administrative appeal hearing procedures adopted herein.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The administrative hearing officer ("hearing officer") shall conduct all administrative appeal hearings of any timely and properly filed appeal from an administrative citation pursuant to the procedures set forth in this chapter. The hearing officer shall review all evidence, documents, and written testimony and hear all oral testimony submitted by the parties and render all decisions and findings in writing to the appellant with a duplicate copy to the citing officer. The hearing officer may decide to uphold the administrative citation, rescind the citation in part or in its entirety, and/or reduce the amount or waive payment of the administrative fine.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The hearing officer's authority to hear and consider appeals shall be limited to passing on only those appeals pertaining to matters within his or her subject matter jurisdiction. The hearing officer shall consider at the hearing on the appeal only those matters or issues which are specifically raised by the appellant in his or her appeal and which are relevant to the issues of the hearing. The hearing officer shall not have the authority to waive any requirements of the municipal code and/or any applicable statutes, rules, codes or regulations, except as otherwise provided in this chapter.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

(a) Within five business days after the city has determined that a timely and complete appeal of an administrative citation has been filed, the citing officer or his or her designee shall provide written notice by first class mail or facsimile to the appropriate association (e.g., San Diego County Bar Association) requesting a hearing officer.

(b) As soon as practicable, said association will provide to the citing officer and the person or entity who filed the appeal, a notice listing three randomly selected names of hearing officers who are practicing and retired attorneys and judges who have agreed to join a panel from which hearing officers are selected by the said association.

(c) Each party shall have the opportunity to reject one of the three proposed hearing officers provided by the association. In the event that two out of the three listed hearing officers are rejected by the parties to the hearing by the deadline stated in the notice, the remaining hearing officer shall become the selected hearing officer for purposes of presiding over that particular hearing. In the event that only one or none of the three listed hearing officers are rejected by the parties to the hearing by the deadline stated in the notice, the first hearing officer on the top of the list who has not been rejected shall become the selected hearing officer for purposes of presiding over that particular hearing.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

Once the hearing officer is selected, the citing officer or his or her designee shall contact the hearing officer to schedule a date, time, and location for the administrative appeal hearing. The administrative appeal hearing shall be scheduled as soon as practicable but allowing sufficient time for providing notice of the hearing.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

Once the date, time and place for the administrative appeal hearing is determined, the citing officer or his or her designee shall prepare a notice of administrative appeal hearing ("hearing notice"), which shall be in substantially the same form as follows:

'You are hereby notified that a hearing will be held before the Administrative Hearing Officer at on the day of at the hour of to hear your appeal of the Administrative Citation served upon you. You may be present at the hearing. You may be, but need not be, represented by an attorney. You may present any relevant evidence at the hearing and you will be given a full opportunity to cross-examine all witnesses testifying against you.'

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The citing officer or his or her designee shall cause a copy of hearing notice to be provided to each appellant either by causing a copy of said notice to be delivered to each appellant personally or by causing a copy of said notice to be delivered by certified mail, postage prepaid, return receipt requested, and addressed to each appellant at the address shown on the appeal.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

Proof of service of the hearing notice shall be certified at the time of service by a written declaration under penalty of perjury executed by the persons effecting service, declaring the date and manner in which service was made. The declaration shall be affixed to a copy of the hearing notice and retained by the citing officer or his or her designee.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The citing officer shall prepare an administrative hearing packet for the hearing officer to review prior to the hearing. The packet shall include a copy of the administrative citation, a staff report, and any evidence of the violation(s).

(Ord. 2008-2790 § 2 (part); May 13, 2008)

At the administrative appeal hearing, the hearing officer shall review all evidence, documents, and written testimony and hear all oral testimony offered either in support of appellant's claim or in support of the administrative citation, provided such evidence and testimony is relevant to the issues of the hearing. The hearing officer has the authority to determine the relevance of any evidence to the issues of the hearing. The hearing officer also has the authority to exclude unduly repetitious and cumulative evidence, regardless of its relevancy.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

Each party appearing at the hearing shall have the following rights:

(a) To call and examine witnesses;

(b) To introduce documentary and physical evidence;

(c) To cross-examine opposing witnesses;

(d) To impeach any witness regardless of which party first called the witness to testify;

(e) To rebut evidence;

(f) To be represented by anyone who is lawfully permitted to do so.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

If the appellant fails to attend the scheduled administrative appeal hearing, the hearing will proceed without appellant and he or she will be deemed to have waived his or her rights to be orally heard at the appeal hearing.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

Following the appeal of an administrative citation, the hearing officer may decide to uphold the administrative citation, establish a modified schedule for compliance, overturn some or all of the findings of the citing officer and/or rescind the citation in part or in its entirety, and/or reduce the amount or waive payment of the administrative fine. In the event the hearing officer determines to rescind the administrative citation in its entirety, the recipient of the administrative citation shall not be required to pay the administrative fine imposed by said citation.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The hearing officer shall prepare and serve a written notice of decision and compliance order ("decision and compliance order") upon each appellant and the citing officer following the administrative appeal hearing. The decision of the hearing officer shall be final, except as otherwise provided by this chapter.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The hearing officer shall serve the written notice of decision and compliance order to each appellant within twenty calendar days from the date the hearing is deemed closed. The hearing officer shall also provide or cause to be provided a copy of the decision and compliance order to the citing officer.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The decision and compliance order for an administrative citation shall state whether the administrative citation has been either upheld, in full or in part, be rescinded, in full or in part. In addition, the decision and compliance order shall contain a brief summary of the evidence considered, findings of fact, a determination of the issues presented, the effective date of the decision, and a compliance order, if applicable, which shall specifically describe the actions which shall be required to be taken to remedy the code violations indicated in the decision and compliance order and shall require the actions to be completed within a specified time period and by a specified deadline. In addition, the decision and compliance order shall contain a compliance order, if applicable, which shall require the administrative citation recipient to pay all applicable administrative fines no later than ten calendar days from the date of issuance of the notice of decision and compliance order. The amount of the fine for which the recipient shall be responsible shall be as set forth in the administrative citation. Payment of the administrative fine shall be ordered to be made to the issuing department or division unless otherwise directed by the city.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The hearing officer shall cause a copy of the notice of decision and compliance order to be provided to each appellant either by causing a copy of the decision and compliance order to be delivered to each appellant personally or by causing a copy of said decision and compliance order to be delivered to each appellant by certified mail, postage prepaid, return receipt requested, and addressed to appellant at the address shown on the appeal. A copy of the decision and compliance order shall also be provided to the citing officer.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The effective date of the hearing officer's notice of decision and compliance order shall be as stated therein or, if none provided, the date of the decision and compliance order.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

(a) Failure to obey a notice of decision and compliance order shall be deemed, an infraction violation for purposes of this section. A fourth violation and subsequent violations of this section within a twelve-month period shall be deemed a misdemeanor.

(b) If, after the notice of decision and compliance order becomes final, the person(s) to whom the decision and compliance order is directed shall fail, neglect or refuse to obey such order, the code compliance officer or other authorized agent may:

(1) Cause such person to be prosecuted for an infraction violation for the offense of contempt of the hearing officer's decision and compliance order; and/or

(2) Institute any appropriate administrative or legal action or proceeding necessary to gain compliance;

(3) For each day that the person(s) to whom the decision and compliance order is directed fails, neglects or refuses to obey such order, a new offense is committed.

(Ord. 2008-2790 § 2 (part); May 13, 2008)

The prevailing party in any proceeding conducted pursuant to this chapter and associated with the abatement of a public nuisance shall be entitled to recovery of attorneys' fees incurred in any such proceeding.

(Ord. 2008-2790 § 2 (part); May 13, 2008)