Marin County Municipal Code Ch. 7.99 Enforcement of Public Health Orders

(a) This chapter is intended to support and ensure compliance with public health orders issued to control the spread of an infectious or communicable disease by providing an administrative penalty framework as an alternative to the mechanisms otherwise available by law.

(b) Administrative citations and penalties will deter violation of public health orders, thereby promoting public health and reducing the need for broader restrictions of business and social activities.

(c) This alternative enforcement mechanism is designed to enable additional county, city, and town personnel to supplement the enforcement activities of peace officers conducted under Health and Safety Code Section 101029, thereby enhancing the county's ability to achieve the public health objectives within the public health orders.

(d) Pursuant to Section 53069.4 of the California Government Code, the board elects to create an administrative penalty and hearing process for the purpose of enforcing public health orders.

(e) In certain instances, the potential harm or damage caused by the violation of public health orders demands a substantial penalty to provide an effective and significant deterrent to violating such orders.

(Ord. No. 3738, § 3, 2020)

The following definitions shall apply to this chapter:

(a) "Board" means the Marin County Board of Supervisors.

(b) "Citation" or "administrative citation" means a civil citation issued pursuant to this ordinance under the authority of Government Code section 53069.4.

(c) "City" and "town."

(1) "City" means any of the cities of Belvedere, Larkspur, Mill Valley, Novato, and San Rafael.

(2) "Town" means any of the towns of Corte Madera, Fairfax, Ross, San Anselmo, Sausalito, and Tiburon.

(d) "Days" means calendar days, unless otherwise indicated.

(e) "Enforcement officer" means the following officers or employees or their designated assistants or deputies:

(1) Police officers, code enforcement officers, park rangers, and any other employees designated by a city or town manager;

(2) The county public health officer;

(3) The director of the department of health and human services;

(4) The county administrative officer;

(5) City or town manager;

(6) The county code compliance manager, the code compliance supervisor, and any code compliance officer;

(7) The county environmental health manager, supervisor, and any environmental health specialist or environmental management coordinator;

(8) The county sheriff;

(9) The county fire marshal;

(10) County parks personnel;

(11) The county counsel;

(12) Any additional persons designated by resolution of the board.

(f) "County public health officer" means the county health officer designated by the board pursuant to Health and Safety Code section 101000.

(g) "Hearing officer" for purposes of this ordinance, means the department head or his or her designee, or any person appointed by the board of supervisors pursuant to Marin County Code 105.030(D). The hearing officer shall not be the enforcement officer that issued the notice of administrative fine that is the subject of the hearing.

(h) "Public health order(s)" means any order issued by the county public health officer under authority granted by state law, any order issued by the state public health officer, any state guidance and directives issued by the state public health officer containing mandatory, binding, or enforceable obligations applicable to the public, or any site- or industry-specific protocols completed as required by state and local requirements.

(i) "Responsible party" means an individual or legal entity, or the agent or legal guardian of such individual or entity, whose action or failure to act violated a public health order, including, without limitation, any person or entity that causes, maintains, permits, or allows a violation of this chapter, any person or entity that owns, possesses, or controls any parcel of real property upon which a violation of this chapter is maintained, or any person or entity that owns, possesses, operates, manages, or controls any business within the county that is responsible for causing or maintaining a violation of this chapter.

(Ord. No. 3738, § 3, 2020)

All public health orders are hereby deemed orders and regulations of the board of supervisors pursuant to Government Code § 8634, shall constitute the law of the county within both unincorporated and incorporated areas, and are determined to be necessary for the protection of life and property during the local emergency declared in connection with the COVID-19 pandemic. Any violation of a public health order shall constitute an immediate danger to public health and safety pursuant to Government Code § 53069.4 and shall constitute a public nuisance. Nothing in this chapter shall be interpreted to make any conduct that does not violate a public health order a violation of this chapter.

(Ord. No. 3738, § 3, 2020)

(a) Non-exclusivity and election of proceedings. This chapter provides for enforcement proceedings that are supplemental to all other enforcement proceedings provided by local, state or federal law, whether administrative, civil or criminal in nature. As such, the provisions of this ordinance may be utilized alone or in conjunction with other remedy. Election to employ one or more proceedings provided by this ordinance shall be at the sole discretion of the county, city, or town and shall be without prejudice to the county, city, or town choosing to also proceed simultaneously or subsequently by pursuing different enforcement proceedings with respect to the same violation.

(b) Citations. Each day a separate violation. This chapter may be enforced at any location within the county by an enforcement officer through the issuance of an administrative citation with penalties, as described below. Each and every day, or portion thereof, that a violation of this chapter exists constitutes a separate and distinct offense.

(c) Co-occurring violations. Multiple violations of public health order provisions may be cited as separate violations, even if co-occurring on the same premises or by the same individual.

(d) Powers of enforcement officer. The enforcement officer shall have the authority and powers necessary to determine whether a violation exists and take appropriate action to gain compliance with the law and abate any violation. The enforcement officer shall further have authority to issue administrative citations and any other notices and orders necessary to obtain compliance and cost recovery, as well as the power to inspect public and private property as provided by law, impose fines and fees, and use the administrative remedies that are available under state law, this chapter, and other applicable provisions of the Marin County Code.

(e) Obstruction. Every person who willfully resists, delays, or obstructs any enforcement officer or hearing officer in the discharge or attempt to discharge any duty of their office or employment in connection with this chapter shall be guilty of a misdemeanor, punished by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not to exceed six months, or by both that fine and imprisonment.

(f) False statements. Every person who willfully states anything which that person knows to be false in any oral or written statement to an enforcement officer or hearing officer regarding the subject of an investigation, citation, or hearing occurring pursuant to this chapter shall be guilty of a misdemeanor, punished by a fine not exceeding one thousand dollars, or by imprisonment in a county jail not to exceed six months, or by both that fine and imprisonment.

(g) Litigation authority. The office of the county counsel, city attorney, and town counsel are hereby authorized to file a civil action on behalf of the county, city, or town to enjoin any violation(s) of this chapter and to obtain other appropriate relief needed to cease and abate such violations, as well as to recover all associated county, city, or town's costs, attorneys' fees, and any fines or penalties imposed. No further board authority or permission to initiate litigation is required to enforce violations of this chapter.

(Ord. No. 3738, § 3, 2020)

(a) Issuance. An enforcement officer may issue a citation to any responsible party violating any provision of this chapter. The enforcement officer may issue a citation for a violation not committed in their presence if they determine through investigation, including, but not limited to, credible input from county, city, or town personnel, that the responsible party did commit or is otherwise responsible for the violation.

(b) Grace period. Prior to issuance of a citation, an enforcement officer may issue a notice of violation to the responsible party which provides up to seventy-two hours to abate the violation and avoid penalty. If the responsible party receiving the notice of violation does not abate the violation in the time provided by the notice of violation, the enforcement officer may then issue a citation. This section does not prevent the enforcement officer from issuing a citation without previously issuing a notice of violation where, in the enforcement officer's sole discretion, the circumstances of the violation make the notice of violation unnecessary or ineffective.

(c) An administrative penalty for violation of this chapter may be assessed by means of a citation issued by an enforcement officer and shall be payable to the entity named on the citation. Administrative penalties imposed by means of citation shall be collected in accordance with the procedures specified in this chapter.

(d) Penalties (fines) for administrative citations issued pursuant to this chapter shall be as follows:

(1) The civil penalty for each non-commercial violation shall be a fine not to exceed five hundred dollars. The minimum amount of any such fine shall be twenty-five dollars.

(2) The civil penalty for each violation involving a commercial activity shall be a fine not to exceed ten thousand dollars. The minimum amount of any such fine shall be two hundred fifty dollars.

(3) Nothing in this chapter shall prevent the development of a fine schedule by the county, city, and town entities enforcing this chapter, subject to the limitations of this chapter and taking into account the factors set forth below.

(e) Factors in setting amount. In determining the amount of a fine pursuant to subsection D, above, the enforcement officer shall consider:

(1) The gravity of the public health risk posed by the violation;

(2) Whether the responsible party has been previously warned, noticed, or cited regarding the violation;

(3) For a violation arising from commercial activities, whether the violation is likely to result in increased revenue or avoided costs;

(4) Whether the responsible party is making good faith efforts to achieve and maintain compliance with public health orders; and

(5) Any other matters relating to the nature, circumstances, extent, and gravity of the violation.

(f) For a citation that includes one or more violations arising from commercial activity, fines imposed for each day of violation shall automatically double, up to the maximum amounts set forth above.

(g) The administrative penalty becomes effective and due immediately upon issuance of the citation. The responsible party has thirty days from the date of service of the citation to pay the penalty in the absence of a timely submitted request for hearing to appeal the citation, pursuant to section 7.99.070, below.

(h) The county, city, or town may pursue any remedy authorized by law to collect administrative penalties that are not timely paid, including, but not limited to, a civil action for collection of civil penalties.

(Ord. No. 3738, § 3, 2020)

(a) A citation, or a notice of violation issued pursuant to section 7.99.050, above, shall contain the following information:

(1) The name and address of the responsible party;

(2) The date and address or description of the location where the violation occurred;

(3) The name, address, and telephone number of the county, city, or town agency issuing the citation, to which protests, objections, and communications can be directed;

(4) Reference to the public health order that was violated, including reference to the paragraph number containing the provision(s) violated;

(5) The amount of the penalty due (or for notices of violation, to become due if the responsible party fails to abate the violation);

(6) A notice that the fine amount will automatically reaccrue (and for violations arising from commercial activity, shall double) each day beyond the grace period (if any) that the cited violation persists, up to the maximum amount set forth herein;

(7) A brief description of the fine payment process, including the thirty-day timeframe to pay the fine and other fees and charges, the late fee for failure to pay on time, and that unpaid amounts may become a lien and special assessment against the real property where the violation occurred;

(8) Identification of appeal rights and a description of how to appeal;

(9) The signature of the enforcement officer issuing the citation; and

(10) The date of the issuance of the citation.

(b) A citation shall be served on the responsible party in one or more of the following ways:

(1) By personal service, provided the personal service can be accomplished without violating public health orders. Such service is effective if the citation documents are set down near the responsible party and orally identified in a manner that can be heard by the responsible party.

(2) By posting and mailing a copy of the citation, if the violation occurred on real property known to the enforcement officer to be owned, possessed, or controlled by the responsible party. The citation shall be physically posted on the real property in a position that is likely to catch the attention of a person entering the property, including, without limitation, a front door, a gate, or a mailbox. The citation shall also be mailed by overnight mail, postage prepaid, to the address at which the citation was posted, or to any other mailing address of the responsible party that is known to the enforcement officer.

(3) By mailing a copy of the citation to a mailing address of the responsible party that is known to the enforcement officer, if personal service or posting is impracticable.

(4) By emailing a copy of the citation to an email address reasonably likely to be accessible to the responsible party, if personal service or posting is impracticable.

(c) Service shall be complete at the time of personal service or emailing, one day after posting and mailing the citation, or five days after service by mail alone. The failure of any person to receive the citation shall not affect the validity of the citation or of any other code enforcement steps or proceedings taken pursuant to this chapter or other provision of the code.

(Ord. No. 3738, § 3, 2020)

(a) Any recipient of a citation who is identified as a responsible party may contest that he or she was responsible for violating public health order as cited by appealing the citation to the county.

(b) To appeal the citation, the recipient must give notice to the county within ten days from the date of service of the citation that they are appealing the citation. The notice to the county may be made by either completing and returning a form created by the county for appealing citations, or by providing a document, in writing, bearing the title, "appeal of administrative citation," containing the following:

(1) The name, address and phone number of the appellant; and

(2) Sufficient information to identify the citation; and

(3) The grounds on which the citation is being contested; and

(4) All information, including copies of any exhibits, that supports the grounds for appealing the citation.

(c) Upon receipt of the written appeal, the matter shall be promptly set for a hearing before the hearing officer. The hearing will be conducted remotely using video technology, such as WebEx or ZOOM, unless the parties otherwise mutually agree to an in-person hearing with the concurrence of the hearing officer.

(d) Unless a hearing is waived by the county, town, or city entity issuing the citation and the responsible party (appellant) in favor of a determination based upon written filings, including arguments and supporting evidence in the form of declaration testimony and other competent evidence, the hearing officer shall hold a de novo administrative hearing to determine whether the conditions described in the citation constitute a violation under this chapter and to review and decide any other matters properly appealed by the appellant. The hearing may be continued from time to time for good cause.

(e) The standard of proof shall be a preponderance of the evidence and the county, city, or town issuing the violation bears the burden of proof to establish the existence of the violation, if placed in dispute by the notice of appeal. The burden of proof on all other matters shall be borne by the appellant.

(f) After the hearing, the hearing officer shall render his or her written decision affirming, reversing or modifying the determination that one or more violations occurred. If the violation is affirmed, the decision shall include a statement that the county is entitled to recover administrative penalties and any other fees, charges, or costs authorized by this chapter and included in the citation. The hearing officer may also reduce the amount of the administrative penalty if warranted, taking into consideration all evidence provided by the appellant (and any responsive evidence adduced by the county) in connection with the factors set forth in Section 7.99.050(E), above.

(g) The hearing officer's decision shall be final and conclusive when signed by the hearing officer and served upon the appellant and county counsel, in addition to the city attorney, or town attorney as applicable. For service upon the appellant, the hearing officer shall effect service in the manner requested by the appellant or, if no manner of service is provided, pursuant to the service methods in Section 7.99.060, above, with the assistance of the county if desired.

(h) Payment of all fines, fees, charges, and costs specified in the hearing officer's decision shall be made to the county within thirty calendar days of service of the decision, unless timely appealed to the superior court. Any responsible party aggrieved by the decision of a hearing officer may obtain further review by filing appropriate materials with the Marin County Superior Court in accordance with the timelines and provisions as set forth in California Government Code § 53069.4. The hearing officer's decision shall constitute the final administrative order or decision of the county pursuant to Section 53069.4.

(i) Hearing officer fees and costs shall be advanced by the county. If the violation is affirmed, the hearing officer shall award the county reimbursement of all hearing expenses borne by the county, including the hearing officer's compensation. Each party or entity shall be responsible for its own attorney fees for the administrative hearing described in this section, regardless of outcome. If the citation is only partially upheld and/or if the fine amount is reduced, the hearing officer may proportionately reduce the county's reimbursement of hearing expenses in his or her sole discretion. If the citation is dismissed entirely, then the county shall bear the hearing costs.

(Ord. No. 3738, § 3, 2020)