Mission Viejo Municipal Code Div. 4 Administrative Citations—title 10 Violations

Notwithstanding chapter 1.03, this division provides for administrative remedies for any violation of this title, which remedies may be pursued in lieu of any other legal remedy, criminal or civil, which may be pursued by the city to address any violation of this title. The city attorney, city prosecutor, or their assistants, have sole discretion to determine whether a violation will be prosecuted criminally. If a violation is not criminally prosecuted, the city may proceed with administrative proceedings pursuant to this division.

(Ord. No. 17-324, § 30, 9-12-17)

The following words and phrases, when used in the context of this chapter, shall have the following meanings:

Enforcement official means any person authorized to enforce the provisions of the Mission Viejo Municipal Code.

Legal interest means any interest that is represented by a deed of trust, quitclaim deed, mortgage, judgment lien, tax or assessment lien, mechanic's lien or other similar instrument, which is recorded with the county recorder.

Responsible person means any person whom an enforcement official determines is responsible for causing or maintaining a violation of this title. The term "responsible person" includes but is not limited to an animal owner, property owner, tenant, person with a legal interest in real property, or person in possession of real property.

(Ord. No. 17-324, § 30, 9-12-17)

Any person violating any section of this title may be issued an administrative citation by an enforcement official as provided in this division.

(Ord. No. 17-324, § 30, 9-12-17)

An administrative citation shall contain all of the following information:

(1) The date of the violation and the approximate time the violation occurred.

(2) The Code section violated and a description of how the section was violated.

(3) The amount of the fine imposed for the violation, and the time within which and the place at which the fine shall be paid.

(4) An order prohibiting another occurrence of the Code violation.

(5) The right to appeal the administrative citation and contact information to receive clarification regarding the administrative citation appeal process.

(6) The name and signature of the citing enforcement official.

(Ord. No. 17-324, § 30, 9-12-17)

An enforcement official may issue an administrative citation, on a form approved by the city manager, to a responsible person, as follows:

(1) If the responsible person is a corporation, the enforcement official shall attempt to locate any one of the following individuals and issue to that individual an administrative citation: the president or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process in a civil action. If the office address of any of the above-listed individuals is known to the city, a copy of the administrative citation also shall be mailed to one of those individuals by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(2) If the responsible person is a business other than a corporation, the enforcement official shall attempt to locate the business owner and issue the business owner an administrative citation. If the enforcement official can locate only the manager of the business, the administrative citation may be given to the manager of the business. If the address of the business is known, a copy of the administrative citation also shall be mailed to that address to the attention of the business owner or a responsible person. The mailing shall be sent by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(3) The enforcement official shall attempt to obtain on the administrative citation the signature of the responsible person, or in cases in which the responsible person is a corporation or business, the signature of the person served with the administrative citation. If a responsible person or person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation or of subsequent proceedings.

(4) If the enforcement official is unable to locate a responsible person for the violation, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned.

(5) If the enforcement official does not succeed in serving the responsible party personally, or by certified mail or regular mail, the enforcement official shall post the administrative citation on any real property within the city in which the city has knowledge that the responsible party has a legal interest, and such posting shall be deemed effective service.

(6) If the enforcement official does not succeed in serving the responsible party personally, by certified mail or regular mail, and the city is not aware that the responsible party has a legal interest in any real property within the city, the enforcement official shall cause the administrative citation to be published once a week for four successive weeks in a local newspaper published at least once a week.

(Ord. No. 17-324, § 30, 9-12-17)

The fine imposed pursuant to this division for any violation of this title shall be in the amount set forth in the administrative citation schedule established by resolution of the city council. The schedule shall specify the amount of any late payment charges imposed for failure to timely pay the fine. This section does not apply to animal nuisance violations pursuant to section 10.01.210.

(Ord. No. 17-324, § 30, 9-12-17)

The administrative fine shall be paid to the city within 15 days from the issuance date of the administrative citation. If, after a hearing requested pursuant to section 10.01.607, the hearing officer determines that the administrative citation should be canceled, the administrative fine shall be refunded in accordance with section 10.01.613.

(Ord. No. 17-324, § 30, 9-12-17)

Any responsible person to whom an administrative citation is issued may contest the citation no later than 15 days from the issuance date of the administrative citation by (1) providing a written appeal request to the city; and (2) depositing the administrative fine with the city. The person requesting the hearing shall be notified by certified mail, return receipt, of the time and place of the hearing at least ten days before the date of the hearing. Any documentation, other than the administrative citation, which the enforcement official has submitted or will submit to the hearing officer shall be served on the person requesting the hearing by certified mail, return receipt, at least five days before the date of the hearing.

(Ord. No. 17-324, § 30, 9-12-17)

Only after a request for hearing form is filed, and the responsible person requesting the hearing has deposited the administrative fine in full, shall the city set the date and time for the administrative hearing. The hearing shall be set for a date not less than 15 days nor more than 60 days after the request for hearing form is filed, and the administrative fine is deposited with the city. The city shall send notice of the date, time, and place of the hearing to the person requesting the hearing by certified mail return receipt at least ten days before the date of the hearing.

(Ord. No. 17-324, § 30, 9-12-17)

The responsible person requesting a hearing may request one continuance, but in no event may the hearing begin later than 90 days after the request for hearing form is filed, and the administrative fine is deposited with the city.

(Ord. No. 17-324, § 30, 9-12-17)

The director of the department through which the administrative citation was issued, or his or her designee, shall select an administrative hearing officer. The administrative hearing officer may be, without limitation, a member of the staff of the department through which the administrative citation was issued. In no event, however, shall the enforcement official who issued the administrative citation be the administrative hearing officer.

(Ord. No. 17-324, § 30, 9-12-17)

Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case and to cross-examine witnesses. The city bears the burden of proof at an administrative hearing to establish a violation of this title. The administrative citation and any additional reports submitted by the enforcement official shall constitute prima facie evidence of the facts contained in those documents. The administrative hearing officer must use preponderance of evidence as the standard of evidence in deciding the issues.

(Ord. No. 17-324, § 30, 9-12-17)

If the responsible person fails to attend the scheduled hearing, the hearing will proceed without the responsible person, and he or she will be deemed to have waived his or her right to an administrative hearing. Notwithstanding this waiver and the time limits set forth in section 10.01.608, if service of the administrative citation is made by posting the citation on real property within the city in which the responsible person has a legal interest, and the responsible person provides verifiable and substantial evidence that removal of the administrative citation from the property by a third party caused the responsible person's failure to attend the scheduled hearing, the responsible person shall be entitled to an administrative hearing.

(Ord. No. 17-324, § 30, 9-12-17)

No later than 30 days after the date on which the administrative hearing concludes, the administrative hearing officer shall issue a written decision to uphold or cancel the administrative citation. The administrative hearing officer shall set forth the reasons for the decision. The decision shall be served upon the responsible person by the applicable method set forth in section 10.01.604. If the administrative hearing officer upholds the administrative citation, the city shall retain the fine deposited by the responsible person. If the administrative hearing officer cancels the administrative citation, any fine deposited with the city shall be promptly refunded, together with interest at the average rate earned on the city's portfolio for the period of time that the city held the fine. The administrative hearing officer's written decision is final, and shall notify the responsible person of his right to appeal as provided in section 10.01.615.

(Ord. No. 17-324, § 30, 9-12-17)

The city may collect any past-due administrative fine or late payment charges by use of any available legal means.

(Ord. No. 17-324, § 30, 9-12-17)

Within 20 days after service of the decision of the administrative hearing officer upon the responsible person, he or she may seek review of the decision by filing a notice of appeal with the municipal court. The responsible person shall serve upon the city clerk either in person or by first class mail a copy of the notice of appeal. If the responsible person fails to timely file a notice of appeal, the administrative hearing officer's decision shall be deemed confirmed.

(Ord. No. 17-324, § 30, 9-12-17)

Failure to pay an administrative fine is a misdemeanor. Filing a criminal misdemeanor action does not preclude the city from using any other legal remedy available to gain compliance with the administrative order.

(Ord. No. 17-324, § 30, 9-12-17)