Lake County Municipal Code Art. VII Administrative Penalties

Footnotes:

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Editor's note— Ord. No. 3112, § 1, adopted Sept. 21, 2021, amended Art. VII in its entirety to read as herein set out. Former Art. VII, §§ 13-45-13-56, pertained to similar subject matter, and derived from Ord. No. 2927, § 1, adopted July 13, 2010; Ord. No. 2982, § 15, adopted Dec. 4, 2012; Ord. No. 3075, §§ 2, 3, adopted Aug. 21, 2018.

45.1

This article is adopted pursuant to Government Code § 53069.4 and may be cited as the Lake County Administrative Fines and Penalties Ordinance.

(Ord. No. 3112, § 1, 9-21-2021)

46.1

The purpose of this article, relating to administrative fines and penalties is to provide alternative remedies to address acts or omissions as set forth in Section 13-48 herein. Violations may be corrected, abated, or addressed in a number of ways. It is the intent of this article to provide the County with an additional remedy to correct violations and, where necessary, to penalize violators for failure to comply with County codes and ordinances.

46.2

This article is adopted in order to achieve the following goals:

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

b. To provide for an administrative process for the imposition of penalties and for a process to appeal the imposition of administrative penalties;

c. To provide for a method to penalize responsible parties who fail or refuse to comply with provisions of the County Code, ordinances, or conditions of entitlement in the County of Lake; and

d. To minimize the expense and delay where the alternative remedy is to pursue responsible parties in the civil or criminal justice system.

46.3

All final administrative orders made pursuant to the procedures set forth in this article shall be subject to review only as provided for in Government Code § 53069.4.

(Ord. No. 3112, § 1, 9-21-2021)

47.1

For purposes of this article, the following words and phrases shall have the following meanings:

a. Administrative Citation means a citation issued pursuant to this section imposing an Administrative Fine pursuant to Sections 13-48, 13-49, and/or 13-50.

b. Administrative Costs means all direct and indirect costs incurred as a result of an Administrative Citation hearing, including, but not limited to, reasonable attorney fees, and costs relating to the initial review, scheduling, and processing of the administrative hearing.

c. Administrative Fine or Administrative Penalty means the fine or penalty imposed on the Responsible Person for an Administrative Violation.

d. Administrative Processing Agency means the entity contracted by the County to process Administrative Citations, or, in the absence of such a contract, means the County.

e. Administrative Violation means any violation of this Code, applicable statutory provisions, ordinances, uniform codes adopted by the County, orders issued by a commission, board, hearing officer, or other body authorized to issue orders, or any conditions or requirements imposed on or by any entitlement, permit, or environmental document issued or approved by the County.

f. Cannabis Operations means any activity involving cannabis, including but not limited to cultivating, transporting, distributing, manufacturing, compounding, converting, processing, preparing, storing, packaging, delivering, testing, dispensing, retailing and wholesaling of cannabis, of cannabis products or of ancillary products and accessories, whether or not carried on for gain or profit.

g. Continuing Violation means a violation of Lake County Code that persists from day to day. A Continuing Violation does not include an Administrative Violation that is corrected by the Responsible Party through the immediate cessation or discontinuation of any prohibited activity or by the immediate implementation of a required activity as determined by the Issuing Department.

h. Days shall mean calendar days.

i. Enforcement Costs means all direct and indirect costs incurred by the Issuing Department in investigating, inspecting, or abating any Administrative Violation, including, but not limited to, noncompliance fees and costs incurred in preparing for and attending an Administrative Citation hearing.

j. Enforcement Officer/Official means any police officer, inspector, or other employee or agent of the County having the power to enforce any Administrative Violation, including Enforcement Officers of non-County entities that have the authority to perform such enforcement through agreements with any County Departments.

k. High Severity Violation means violation of considerable environmental impact at the time it first occurs and which impact will be greatly acerbated by its continuing to occur.

l. Initial Review of Citation means the imposition of an Administrative Citation is appealed, an Initial Review will be completed by the head official of the Issuing Department or their designee and a determination made if the citation should be upheld.

m. Issuing Department means the County department or office that has authority and responsibility for enforcing Administrative Violations subject to an Administrative Citation, including non-County entities that have the authority to perform such enforcement through agreements with any County Departments.

n. Minor means any person under the age of eighteen (18) years.

o. Person means an individual, firm, partnership, joint venture, association, corporation, limited liability company, estate, trust, business trust, receiver, syndicate, or any other group or combination acting as a unit, whether organized as a nonprofit or for-profit entity, and includes the plural as well as the singular number.

p. Population Center means a geographic area where persons have congregated to reside such as an urbanized area or urban cluster.

q. Responsible Person(s) means any person, as defined in this section, who is any of the following:

i

A person who causes or materially contributes to the causation of an Administrative Violation;

ii. A person who maintains or allows an Administrative Violation to continue by his or her action or inaction;

iii. A person whose agent, employee, consultant, or independent contractor causes or materially contributes to the causation of an Administrative Violation;

iv. An on-site manager of a business who is responsible for the activities occurring at the premises where an Administrative Violation occurs;

v. A trustee or other person who is given the legal authority to manage property on behalf of someone else where an Administrative Violation occurs;

vi. A person who is a parent or guardian having custody and control of a Minor who contributes to the causation of an Administrative Violation;

vii. A person who is the owner of, or who exercises control over, or any lessee or sub lessee with the current right of possession and control of, real property where a property related Administrative Violation occurs.

r. Violation shall mean any act or omission for which Administrative Penalties may be imposed pursuant to this article.

48.1

Administrative Penalties shall be imposed, enforced, collected and reviewed in compliance with the provisions of this article. Administrative penalties may be imposed by the Enforcement Official for any of the following acts or omissions:

a. All violations of the Lake County Code;

b. Failing to comply with any condition imposed by any entitlement, permit, contract, or environmental document issued or approved by the County of Lake; and

c. Failing to obtain and/or maintain any permit related to cannabis operations which is required, issued, and/or approved by the County of Lake.

48.2

Amount of Penalty: Infraction. If the Lake County Code designates the violation as an infraction, an administrative fund up to the maximum fine or penalty amounts for infractions set forth in subdivision (b) of Government Code § 25132 may be imposed if the violation is not addressed and/or abated in compliance with subsection 48.7 herein. Each day the illegal condition exists is deemed a separate violation, the amount of which penalty to be imposed shall be calculated based upon the number of calendar days from the date of transmittal of the Notice of Violation through the date for abatement specified in the Notice of Violation.

48.3

Amount of Penalty: Other. Except as otherwise specified herein, if this Code does not designate the violation as an infraction, an administrative penalty may be imposed within the amounts set forth below if the violation is not addressed and/or abated or successfully appealed by the date specified in the Notice of Violation:

a. Up to one thousand dollars ($1000.00) for each calendar day from the date of the transmittal of the Notice of Violation through the date of actual abatement of the violations specified in said Notice.

b. Determination of Administrative Penalty Imposed. In determining the amount of any administrative penalty under this section, the enforcement official shall take into consideration the circumstances of the violation, the degree of harm caused by the violation, any prior history of violations, the Responsible Person(s)' ability to pay the fine, the market value of the cannabis cultivation which is in violation of this section, and other factors in the furtherance of justice.

c. Resolution. The Board of Supervisors may adopt a resolution at an open and public meeting which further clarifies and describes the manner in which the particular circumstances of a violation of this article may impact the determination of the degree of severity of that violation and the corresponding penalty imposed.

d. In the event the violations include is the illegal use of a structure and the that violation may be corrected by obtaining the appropriate permit, up to a maximum of five (5) times the amount of the standard fee for the permit may be charged as to that violation alone.

e. Payment of the administrative penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action.

f. The administrative penalty imposed shall be made payable to the County of Lake.

(Ord. No. 3112, § 1, 9-21-2021)

49.1

Purpose. It is imperative that cannabis operations occur in Lake County pursuant to existing and appropriate County permits. Certain misconduct poses such critical risk to the health and safety of the County's residents. Failure to maintain such permits, to engage in cannabis operations beyond the scope of an existing County permit, and/or to engage in cannabis operations after a permit has been applied for but before it has been approved, significantly deprives the County of adequate land use planning, ignores the requirements of the California Environmental Quality Act (CEQA), thereby creating the possibility of substantial jeopardy to the environment, and impacts the safety of all County residents. The jeopardy to the environment is significant fine and prolonged when cannabis cultivation operations occur without proper licensure and permitting, creating devastating water pollution, dangerous erosion, and leaching of chemicals and toxins into the County's water supply. A civil penalty in the form of a fine must be imposed. Further, the failure to obtain the necessary permits to engage in cannabis cultivation legally in Lake County is a fraud against the County, depriving the County of the tax to which it is lawfully due, and constitutes an unlawful business practice which puts those engaged in permitted cannabis cultivation operations at a distinct and significant disadvantage. Said violations are not designated as infractions and any fine imposed as a consequence of such violation is not a tax or fee under Article XIII C, Section One, subdivision (e)(5) of the California Constitution and is subject only to the Excessive Penalties Clause of Article 1, Section 17 of the California Constitution and the Eighth Amendment of the United States Constitution. While said violations shall constitute a public nuisance, the procedures established in this section are in addition to any other procedures or legal remedies used to address violations of County ordinances, including but not limited to nuisance abatement procedures. The administrative penalty imposed pursuant to this section may be charged consequent to a nuisance abatement process or may occur as a separate billing apart from the nuisance abatement process.

49.2

Amount of Administrative Penalty Imposed. The Administrative Penalty imposed by this section is so imposed as a separate violation for each day the violation continues to persist beginning at the time a notice of violation is served upon the responsible party or parties. The Administrative Fine shall continue to accrue until the violation is remedied. For purposes of this section, conducting cannabis cultivation operations in the unincorporated areas of the County in violation of Section 13-49 herein may only be remedied by the Responsible Person(s) by both self-abatement of all such unpermitted operations or and by the application by the responsible party or parties for the required County permit(s) within the thirty (30) day-period described herein below. Those fines described in Section 49.2 (a) through (c) herein below will not become a debt owed to the County if the violations giving rise to said fines are corrected within thirty (30) days.

a. A First Violation of this section. If the violation is not corrected within thirty (30) days, an administrative fine of one thousand dollars ($1,000.00) per day per violation will be assessed until such time as the Responsible Person(s) self-abates or abatement action is completed by the County.

b. A Second Violation of this section. If a second violation occurs within a 24-month period, commencing from date of issuance of the prior administrative citation to the same Responsible Person(s) or on the same premises if the property owner remains the same, the administrative fine shall be three thousand dollars ($3,000.00) per day per violation until such time as the Responsible Person(s) self-abates or abatement action is completed by the County.

c. A Third Violation of this section. For a third such violation within a 24-month period commencing from date of issuance of the prior administrative citation to the same Responsible Person(s), or on the same premises if the property owner remains the same, the administrative fine shall be five thousand dollars ($5,000.00) per day per violation. until such time as the Responsible Person(s) self-abates or abatement action is completed by the County.

Permit Ineligibility. Additionally, no Responsible Person(s) associated with the premises subject to said violation(s) shall be eligible for a County permit for Cannabis Operations of any kind for a period of no less than ten (10) years.

(Ord. No. 3112, § 1, 9-21-2021)

50.1

Purpose. Certain misconduct poses such critical risk to the health and safety of the County's residents. The jeopardy to the environment is significant and prolonged when cannabis cultivation operations occur without proper licensure and permitting, creating devastating and enduring water pollution, dangerous erosion, and leaching of chemicals and toxins into the County's water supply. The jeopardy to the health and safety of County residents can be extreme when such unpermitted operations occur within exclusionary zones, community growth boundaries and other population centers. Such misconduct shall be deemed to constitute violations of "High Severity" which, for purposes of this article means a violation occurring within community growth boundaries or other population centers, a violation of considerable environmental impact at the time it first occurs and which impact will be greatly acerbated by its continuing to occur.

Civil penalties must be imposed. Further, the failure to obtain the necessary permits to engage in cannabis cultivation legally in Lake County is a fraud against the County, depriving the County of the tax to which it is lawfully due, and constitutes an unlawful business practice which puts those engaged in permitted cannabis cultivation operations at a distinct and significant disadvantage. Said violations are not designated as infractions and any fine imposed as a consequence of such violation is not a tax or fee under Article XIII C, Section One, subdivision (e)(5) of the California Constitution and is subject only to the Excessive Penalties Clause of Article 1, section 17 of the California Constitution and the Eighth Amendment of the United States Constitution. While such high severity violations shall constitute a public nuisance, the procedures established in this section are in addition to any other procedures or legal remedies used to address violations of County ordinances, including but not limited to nuisance abatement procedures. The administrative penalty imposed pursuant to this section may be charged consequent to a nuisance abatement process or may occur as a separate billing apart from the nuisance abatement process.

50.2

Notice of Violation. The corrective period and appeal period specified in the Notice of Violation described in Section 13-54 herein shall be abbreviated for High Severity Violations due to the considerable impact of said violations. Said Notice of Violation for violations deemed high severity shall allow for no more than fifteen (15) days and no less than ten (10) days to correct the violation(s).

50.3

Penalties for High Severity Violations.

a. The Failure to Obtain Required County Permits for Cannabis Cultivation Operations—Per Plant Penalty. For any cannabis cultivation operations for which a County permit is required but not obtained, there shall be a per-cannabis-plant penalty imposed. until such time as the Responsible Person(s) self-abates or abatement action is completed by the County. Said penalty constitutes a debt against the County from the date of the notice of violation and is due and payable immediately upon the date of the notice of violation and continues until the violation is corrected. The following per-plant penalties shall apply:

i. One to ten (1-10) plants - a per plant per day penalty of up to one hundred dollars ($100.00) per plant.

ii. Eleven to twenty-five (11-25) plants - a per plant per day penalty of up to two hundred dollars ($200.00) per plant.

iii. Twenty-five to fifty (25-50) plants - a per plant per day penalty of up to three hundred dollars ($300.00) per plant.

iv. Fifty-one (51) or more plants - a per plant per day penalty of up to five hundred dollars ($500.00) per plant.

b. Permit Ineligibility. Any Responsible Person(s) determined to have violated this section shall be deemed permanently ineligible to obtain any County permit(s) for cannabis operations in the unincorporated area of the County of Lake.

c. Additionally, in situations where no County permit has been obtained to cultivate cannabis as required by law, if it is determined that said cultivation presents an imminent danger to public health, safety, and welfare, summary abatement procedures may be immediately employed.

50.4

Other High Severity Violations. Other violations deemed by Lake County Code to be High Severity Violations for purposes of the imposition of Administrative Fines. Certain other violations may be deemed as High Severity if the conditions rise to the level of impact described in Section 50-1 herein. Such violations may include action deemed to be High Severity Violations elsewhere in the Lake County Code, actions which facilitate unpermitted cannabis cultivation and/or which result in significant environmental impacts to neighboring property owners, and/or which contravene the orders of this Board during a locally-declared emergency. Said violations shall be subject to the maximum penalty/fine authorized by this article.

(Ord. No. 3112, § 1, 9-21-2021)

Any person owing fines and/or penalties pursuant to this section shall be liable in an action brought in the name of the county for recovery of such fines and/or penalties. These recovery costs may include reasonable attorney fees incurred in the action if the county prevails, as the county reserves the right to seek to recover reasonable attorney fees, on a case by case basis, pursuant to California Government Code § 25845, subdivision c. In those cases in which the County seeks to recover reasonable attorney fees, the other party may likewise do so. All such costs recovered by the County pursuant to this chapter shall be placed in the Code Enforcement Fund described in subsection 13-48.2 of the Lake County Code.

Additionally, the District Attorney, or the County Counsel with agreement of the District Attorney, may bring a civil action pursuant to California Business and Professions Code § 17206 to enforce this section.

(Ord. No. 3112, § 1, 9-21-2021)

Any administrative fine and/or penalty shall accrue interest at the same annual rate as any civil judgment. Interest shall accrue on the following day after the penalty becomes a final decision or order.

(Ord. No. 3112, § 1, 9-21-2021)

The Board of Supervisors may adjust the penalties for specific Administrative Violations through the adoption of a Resolution for that purpose.

(Ord. No. 3112, § 1, 9-21-2021)

a. If the Enforcement Official determines that public or private property, or portions thereof, is being maintained or permitted to exist in a manner for which administrative penalties may be imposed pursuant to this article which pertains to building, plumbing, electrical, structural or zoning issues, the responsible party(ies) shall be provided with a reasonable period of time to correct the violation prior to imposition of the administrative penalties, except in those cases in which there is an immediate danger to health and safety. Except as herein otherwise provided in regard to High Severity Violations as described in Section 50-2 herein which may abbreviate the time for correction, the reasonable period of time for purposes of this section shall not exceed thirty (30) days from service of the written Notice of Violation.

b. Manner of Giving Notice. The Enforcement Official shall post a copy of the Notice of Violation in a plainly visible place on the property and shall serve a copy of the Notice of Violation upon those persons and in the same manner as described in subsection 13-6.2.

c. Use of Monies Collected. All monies collected as a result of the imposition of said administrative Penalties shall be remitted to the County Treasurer-Tax Collector who shall place said monies in a Code Enforcement Fund. The purpose of this fund shall be to pay the costs associated with the code enforcement program in the County. This program may include participation by multiple County departments, which departments shall be compensated through the Code Enforcement Fund in a manner to be agreed upon by the program participants.

(Ord. No. 3112, § 1, 9-21-2021)

55.1

Notice of Violation. If the violation is not corrected within the period stated in the Notice of Violation, if the violation is deemed one of High Severity, or if the violation creates an immediate danger to health or safety, a Notice of Imposition of Administrative Penalties may be issued by the enforcement official.

55.2

Contents of Notice. The Notice of Imposition of Administrative Penalties shall be issued on a form approved by the County Counsel and shall contain the following information:

a. The date, location and approximate time the violation was observed;

b. The ordinance, statute, or condition imposed by any entitlement, permit, contract or environmental document violated and a brief description the violation;

c. The amount of the administrative penalty imposed for the violation;

d. A statement that the responsible party may appeal the imposition of the administrative penalty within fifteen (15) days of the date the Notice of Imposition is served unless the violation is deemed to be a High Severity Violation, in which case the time to appeal shall be the time within which said Notice allows for the violation to be abated by a Responsible Person(s);

e. Instructions on how to appeal the Notice of Imposition of Administrative Penalties;

f. A statement that if the responsible party fails to request an appeal of the Notice of Imposition of the Administrative Penalties, the imposition of the penalty shall be final;

g. A statement that any responsible party upon whom an administrative penalty has been imposed may seek judicial review of the order imposing the penalty pursuant to Government Code § 53069.4; and

h. The signature of the Enforcement Officer.

i. The failure of the Notice of Imposition of Administrative Penalties to set forth all required contents shall not affect the validity of the proceedings.