Modesto Municipal Code Ch. 6 Administrative Remedies

It is the intent of the City to promote the health, safety and welfare of the citizens of Modesto, California. The Council finds that enforcement of the municipal code is crucial to the neighborhoods of Modesto. Thus, a uniform, streamlined, convenient and comprehensive code enforcement system provides an important public service. Critical in gaining compliance with this Code and applicable State Codes is the use of a combination of judicial and administrative procedures. The City is a Charter City, and consistent with its powers as a Charter City, it adopts the administrative remedies set forth in this chapter.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

This chapter establishes the administrative enforcement remedies for violations of this Code and applicable State Codes. These remedies include administrative abatement, summary abatement, administrative citations, recordation of notices of violation, administrative notices and orders and mediation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The City Manager, City Directors, the Police Chief, the Fire Chief and/or their designated agents and designated code enforcement officers have the authority and powers necessary to determine whether a violation of the Code exists and the authority to take appropriate action to gain compliance with the provisions of this Code and applicable State Codes. These powers include the power to issue an administrative citation, notice and order and civil penalties or fines. It also includes the power to inspect public and private property and to use all the administrative remedies available under this Code.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

City Directors, the Police Chief, the Fire Chief and/or their designated agents and designated code enforcement officers are authorized to enter upon any property or premises to ascertain whether the provisions of this Code or applicable State Codes are being obeyed, and to make any examinations and surveys as may be necessary in the performance of their enforcement duties. These may include the taking of photographs, samples or other physical evidence. All inspections, entries, examinations and surveys shall be done in a reasonable manner. If an owner, tenant, occupant or agent or other responsible party refuses to grant the City permission to enter or to inspect, the City may seek an administrative inspection warrant pursuant to the procedures provided for in the California Code of Civil Procedure.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Nothing in this chapter shall prevent the City from pursuing criminal, civil or any other legal remedy to address violations of this Code. When the violation upon which an administrative penalty is based pertains to building, plumbing, electrical, structural or zoning provisions, the responsible party shall be provided a reasonable period of time to correct the violation prior to imposition of the administrative penalty, except in those cases in which there is an immediate danger to health or safety.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Whenever in this Code any act or omission is made unlawful, it shall include causing, maintaining, permitting, aiding, abetting, suffering or concealing the fact of such act or omission.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Whenever a power is granted to, or a duty is imposed upon a public officer, or employee, the power may be exercised, or the duty may be performed by a designee of such officer or employee or by a person otherwise duly authorized pursuant to law or ordinance, unless this Code expressly provides otherwise.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Writing includes any form of recorded message capable of comprehension by ordinary visual means. Whenever any notice, report, statement of record is required or authorized by this Code, it shall be made in writing in the English language unless it is expressly provided otherwise.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

A reference made to any portion of this Code or to any ordinances of the City applies to all amendments and additions of this Code or ordinance now or hereafter made.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Whenever any notice is required to be given under this Code, the notice shall be served by one (1) or more of the following methods unless a different procedure is specifically stated to apply:

(a) Personal service or certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice shall be sent by regular mail to the responsible party. If a notice that is sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail; or

(b) Posting the notice conspicuously on or in front of the property.

(c) Mailings to the property owner shall be sent to the address listed in the last equalized assessment roll of the Stanislaus County Assessor.

(d) In the event the responsible party is someone other than the property owner, a copy of the notice shall also be mailed to the property owner.

Service by certified or regular mail in the manner described above shall be effective on the date of mailing.

The failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this Code.

The notice requirements in this section do not apply to initial notices of violation which may be sent by regular mail. Service of a notice of violation by regular mail is effective on the date of mailing.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Proof of getting any notice may be made by the certificate of an officer or employee of the City, or by affidavit of any person over the age of eighteen (18) years, which shows service and conformity with this Code, or other provisions of law applicable to the subject matter concerned.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) "Abatement" means any action the City may take to remove or alleviate a nuisance including, but not limited to, demolition, removal, repair, cleaning, boarding and securing or replacement of property.

(b) "Administrative enforcement order" means an order issued by an administrative hearing officer after a hearing requiring a responsible party to correct violations, abate a public nuisance, pay administrative fines, civil penalties, administrative costs, authorize the City to abate a public nuisance, assess a Code enforcement lien or take any other action as authorized or required by this Code and applicable State Codes.

(c) "Code enforcement lien" means a lien recorded with the Stanislaus County Recorder's Office for the purposes of collecting outstanding administrative citation penalties, civil penalties and administrative costs imposed as part of a cost recovery, administrative or judicial code enforcement action.

(d) "Building/structure" means and includes, but is not limited to, any house, garage, carport, duplex, apartment, condominium, mobile home, storage shed, any commercial establishment, warehouse, fence, wall or other structures affixed to or upon real property, or any assemblage of materials on private property of another for the purpose of human habitation.

(e) "City" means the area within the territorial limits of the City of Modesto and all territory outside of the City over which the City has jurisdiction by virtue of any constitutional or charter provisions, or any ordinance or law.

(f) "City Manager" means the Manager of the City of Modesto, the Deputy City Manager, or any person or persons designated by the City Manager to act in his/her stead in connection with this chapter.

(g) "Code enforcement officer" means a person authorized to enforce violations of this Code, uniform codes and applicable State Codes within their department's jurisdiction.

(h) "Director" means and includes all City directors, the Police Chief, the Fire Chief and/or their designated agents.

(i) "Hearing officer" means any person appointed by the City Manager to preside over administrative hearings.

(j) "Imminent health and safety hazard" means any condition in which creates a present and immediate danger to life, property, health or public safety.

(k) "Notice and order" means a document used in abatement actions and assessment of civil penalties involving serious code violations which provide notice of municipal code, uniform code or applicable State Code violations and orders a responsible party to take certain steps to correct the violations within a definitive period of time. Civil penalties may also be imposed in conjunction with this notice.

(l) "Notice of compliance" means a document issued by a director which represents that a property has been brought into compliance with the criteria set forth under this Code.

(m) "Notice of satisfaction" means a document or form which indicates that all outstanding civil penalties and costs have been paid in full, or that the City has negotiated an agreed amount, or that a subsequent administrative or judicial decision has resolved the outstanding debt.

(n) "Person" means any natural person, firm, association, business, or organization, corporation, partnership, trust, estate, or any other legal entity recognized by law as the subject of legal rights or duties.

(o) "Property" means any parcel of land which is identified in the secured roll of the Stanislaus County Assessor, all residential, commercial and other real property, including but not limited to front yards, side yards, backyards, driveways, walkways, alleys, sidewalks, and shall include any building or structure whether fixed or moveable, located on such property.

(p) "Property owner" means the record owner of real property as listed in the most current equalized assessment role as maintained by the Stanislaus County Assessor.

(q) "Responsible party" means any occupant, lessor, lessee, manager, licensee, or other person having control over a structure or parcel of land. A responsible party may be a property owner.

(r) "Special assessment" means a code enforcement lien against any real property owned by the responsible party within the City which may be collected in the same manner and at the same time as ordinary municipal taxes are collected after City's recordation of a notice of special assessment with the County Recorder's Office.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Administrative civil penalties may be imposed for any of the following acts or omissions:

(a) All violations of this Code;

(b) All violations of uniform codes adopted by the City; and

(c) Failure to comply with any order issued by a board, commission, hearing officer or other body appointed by Council and authorized to issue orders. This includes, but is not limited to, the Planning Commission, the Board of Zoning Adjustments, and the Board of Building Appeals.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Any person violating any provision of this Code or applicable State Codes may be subject to the assessment of civil penalties pursuant to the administrative procedures provided in this article.

(b) Each and every day a violation of any provision of this Code or applicable State Codes exists constitutes a separate and distinct violation.

(c) Civil penalties may be directly assessed by means of a notice and order issued by the Director or affirmed by the City's administrative hearing officer.

(d) Civil penalties shall be assessed at a daily rate determined by the Director or administrative hearing officer pursuant to the criteria set forth in this article. Except as authorized pursuant to State and Federal laws, the maximum civil penalty shall be two thousand five hundred dollars ($2,500.00) per violation per day with the maximum amount of civil penalties not exceeding one hundred thousand dollars ($100,000.00) per parcel or structure for any related series of violations in a year.

(e) Civil penalties and related administrative costs, including attorneys fees, may be recovered by all appropriate legal means, including but not limited to, a code enforcement lien, special assessment of the general tax levy, or by a civil or small claims action brought by the City or both. All civil penalties and administrative costs may be enforced as a personal obligation of the violator.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Whenever the Director determines that a violation of one (1) or more provisions of this Code or applicable State Codes has occurred or continues to exist, a civil penalty may be issued in conjunction with a notice and order to the responsible party.

(b) The notice and order shall refer to all Code sections violated and describe how each section is or has been violated.

(c) The notice and order shall refer to the dates and locations of the violations.

(d) The notice and order shall address the action required to correct the outstanding violations and establish time frames for completion.

(e) The notice and order shall establish a daily amount of civil penalties. The Director shall determine the daily amount of civil penalties pursuant to the criteria set forth in this article.

(f) The notice and order shall identify a date when civil penalties began to accrue and a date when the assessment of civil penalties ended, unless the violation is continuous. In the case of a continuous violation, there shall be an ongoing assessment of penalties at the daily rate established in the notice and order until the violations are corrected.

(g) If a director determines that the violations are continuing, the notice and order shall demand that the responsible party cease and desist from further action causing the violation, or take affirmative action to cease from maintaining or permitting the violation to exist. The notice and order shall demand that the responsible party commence and complete all action to correct the outstanding violations under the guidance of the appropriate City departments.

(h) The notice and order shall enumerate any other consequences should the responsible party fail to comply with the terms and deadlines outlined in the notice and order.

(i) The notice and order shall identify appropriate hearing procedures as required by this chapter.

(j) The notice and order shall be served upon the responsible party by any one of the methods of service listed in Section 1-6.205 of this chapter.

(k) The notice and order shall identify the factors used by the Director in determining the duration and the daily amount of civil penalties.

(l) More than one (1) notice and order may be issued against the same responsible party if it encompasses either different dates or different violations.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) In determining the date when civil penalties start to accrue, a Director may consider the date when the department first discovered the violation.

(b) The assessment of civil penalties shall end when all action required by the notice and order has been completed.

(c) In determining the amount of the civil penalty to be assessed on a daily rate, the Director may consider some or all of the following factors:

(1) The duration of the violation;

(2) The frequency or recurrence of the violation;

(3) The seriousness of the violation;

(4) The history of the violation;

(5) The responsible parties conduct after issuance of the notice and order;

(6) The good faith effort by the reasonable person to comply;

(7) The economic impact of the penalty on the responsible party;

(8) The impact of the violation upon the community;

(9) Any other factors that justice may require.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The amount of the administrative penalty to be imposed shall be set by the Director or his/her designee responsible for issuing the notice and order. In determining the amount of the administrative penalty, the Director or his or her designee shall consider the criteria set forth in Section 1-6.304. The amount of administrative civil penalties assessed per day or per violation shall be set according to the following schedule:

(a) Level one violations shall be subject to an administrative civil penalty of one hundred dollars ($100.00) to five hundred dollars ($500.00);

(b) Level two violations shall be subject to an administrative civil penalty of five hundred dollars ($500.00) to one thousand dollars ($1,000.00);

(c) Level three violations shall be subject to an administrative civil penalty of one thousand dollars ($1,000.00) to five thousand dollars ($5,000.00);

(d) Level four violations shall be subject to an administrative civil penalty of twenty-five hundred dollars ($2,500.00) to ten thousand dollars ($10,000.00);

(e) Level five violations shall be subject to an administrative civil penalty of twenty-five hundred dollars ($2,500.00) to twenty-five thousand dollars ($25,000.00).

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The Director or hearing officer, if the matter goes to hearing, is authorized to assess any reasonable administrative costs. Administrative costs may include scheduling and processing of the hearing and all subsequent actions. This includes, but is not limited to, all staff time incurred with regard to the hearing and subsequent actions, as well as attorney fees.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) A Director shall request the City Manager or his or her designee to appoint a hearing officer and to establish a date, time and place for a civil penalties hearing.

(b) Failure to comply includes failure to pay the assessed civil penalties, failure to commence and complete corrections by the established deadlines or failure to refrain from continuing violations of this Code or applicable State Codes.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The procedures for the civil penalties hearing are the same as the hearing procedures set forth in Article 5 of this chapter.

(b) The Hearing Officer shall only consider evidence relevant to the following issues:

(1) Whether the responsible party caused or maintained a violation of this Code or applicable State Codes existing on the dates specified in the notice and order;

(2) Whether the amount of civil penalties assessed by the Director pursuant to the criteria outlined in this article was reasonable; and

(3) The amount of administrative costs incurred.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Once all evidence and testimony are completed, the administrative hearing officer shall issue an administrative enforcement order which affirms or rejects the notice and order or which modifies the daily rate or duration of civil penalties depending upon the review of the evidence. The administrative hearing officer may increase or decrease the total amount of civil penalties and costs that are assessed by the notice and order.

(b) The administrative hearing officer may issue an administrative enforcement order that requires the responsible party to cease from violating this Code or applicable State Codes and to make necessary corrections.

(c) As part of the administrative enforcement order, the administrative hearing officer may establish specific deadlines for the payment of penalties and costs and condition the total or partial assessment of civil penalties on the responsible party's ability to complete compliance by specified deadlines.

(d) The administrative hearing officer may issue an administrative enforcement order which imposes additional civil penalties that will continue to be assessed until the responsible party complies with the hearing officer's decision and corrects the violation.

(e) The administrative hearing officer may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the administrative enforcement order.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Upon the failure of the responsible party to comply with the terms and deadlines set forth in the administrative enforcement order, the Director may use all appropriate legal means to recover the civil penalties, administrative costs and obtain compliance with the administrative enforcement order.

(b) After the administrative hearing officer issues an administrative enforcement order, the Director shall monitor the violations and determine compliance.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

All final administrative orders made pursuant to the procedures set forth in this article shall be subject to review only as provided in California Code of Civil Procedure Sections 1094.5 and 1094.6. Should any court of competent jurisdiction determine that the City must provide an appeal to any final administrative order in a manner other than set forth in Sections 1094.5 and 1094.6, then it is the intent of the City Council that the administrative penalty process remain as provided herein and to provide that an appeal which is timely requested follow the procedures set forth in Government Code Section 53069.4.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Any person violating any provisions of this Code or applicable State Codes may be issued an administrative citation by a code enforcement officer as provided in this article.

(b) Each and every day a violation of this Code or applicable State Codes exists constitutes a separate and distinct offense.

(c) An administrative penalty shall be assessed by means of administrative citation issued by the code enforcement officer and shall be payable directly to the City unless otherwise noted on the citation.

(d) Penalties assessed by means of an administrative citation shall be collected in accordance with the procedures specified in this chapter.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Upon discovering any violation of this Code or applicable State Codes, a code enforcement officer may issue an administrative citation to a responsible party in the manner prescribed in this chapter.

(b) If the responsible party is a commercial business, the code enforcement officer shall attempt to locate the business owner and issue the business owner an administrative citation. If the code enforcement officer can only locate the manager of the commercial business, the administrative citation may be given to the manager of the business. A copy of the administrative citation shall be mailed to the business owner or responsible party in the manner prescribed by Section 1-6.205 of this chapter.

(c) The administrative citation shall be signed by the issuing code enforcement officer.

(d) Method of Service.

(1) Once the responsible party is located, the code enforcement officer shall attempt to obtain the signature of that person on the administrative citation. If the responsible party refuses or fails to sign the administrative citation, it shall not affect the validity of the citation and subsequent proceedings.

(2) If the code enforcement officer is unable to locate the responsible party, the administrative citation must then be mailed to the responsible party in the manner prescribed in Section 1-6.205 of this chapter.

(3) If no one can be located at the property, the administrative citation shall be posted in a conspicuous place on or near the property and a copy subsequently mailed to the responsible party in the manner prescribed in Section 1-6.205 of this chapter.

(e) A copy of the administrative citation shall thereafter be mailed to the responsible party and to the owner of the property if different from the responsible party in the manner prescribed by Section 1-6.205 of this chapter. The failure of any person with an interest in the property to receive notice shall not affect the validity of any proceedings taken under this article.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Any administrative citation that is issued shall contain all of the following information:

(a) The date and location of the violation(s) and the approximate time the violation(s) were observed;

(b) The Code section(s) violated and a brief description of how the section(s) were violated;

(c) Where appropriate, the action(s) required to correct the violation(s);

(d) Where appropriate, set forth a deadline by which violation(s) must be corrected and the consequences of failing to comply;

(e) The aggregate amount of penalties imposed for each violation cited, if any;

(f) An explanation as to how the penalty(ies) shall be paid, the time period by which it shall be paid, and the consequences of failure to pay the penalty; and

(g) Identify all rights and procedures of appeal;

(h) A statement that a failure to appeal shall constitute a failure to exhaust administrative remedies and results in the citation becoming a final administrative enforcement order, subject to criminal prosecution pursuant to Section 1-6.508.

(Added by Ord. 3102-C.S., § 1, amended by Ord. 3474-C.S., § 1, effective 3-13-08)

(a) If the responsible party fails to correct the violation(s), subsequent administrative citations may be issued for the same violation(s). The amount of the penalty(ies) shall increase at a rate specified in subsection (b) of this section.

(b) The penalties assessed for each violation cited shall be as follows:

(1) First administrative citation—one hundred dollars ($100.00) for each violation cited.

(2) Second administrative citation within a twelve (12) month period—two hundred fifty dollars ($250.00) for each violation cited.

(3) Third or subsequent administrative citation within a twelve (12) month period—five hundred dollars ($500.00) for each violation cited.

(c) Payment of the penalty(ies) shall not excuse the failure to correct the violation(s) nor shall it bar further enforcement action by the City.

(d) All penalties assessed shall be payable to the City of Modesto unless otherwise directed on the citation. An administrative citation may be issued for multiple violations. Each violation constitutes a separate offense for which a separate penalty may be imposed. The aggregate amount of penalties imposed for each violation cited will be set forth on the administrative citation.

(Added by Ord. 3102-C.S., § 1, amended by Ord. 3474-C.S., § 1, effective 3-13-08)

An appeal from the issuance of an administrative citation shall follow the procedures set forth in Section 1-6.501.

(a) As part of the administrative enforcement order, issued upon appeal, the administrative hearing officer may reduce, waive or conditionally reduce the penalties or late fees assessed by the citation.

(b) The administrative hearing officer may also impose conditions and deadlines to correct the violations or require payment of an outstanding penalty.

(c) The administrative hearing officer may assess reasonable administrative costs.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The failure of any person to pay the penalties assessed by an administrative citation within the time specified on the citation may result in the Director referring the matter to the Finance Department or other designated agent for collection. The Director may pursue any other legal remedy to collect the penalties and related administrative costs including the recordation of a code enforcement lien pursuant to the procedures set forth in Section 1-6.701.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Whenever a code enforcement officer has determined that a violation of this Code exists within the City or when an administrative hearing is authorized under this chapter, the procedures set forth herein shall apply to that hearing.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) A person served with one of the following documents, orders or notices may file an appeal within twenty (20) calendar days from the service of the notice:

(1) Any administrative notice and order;

(2) An administrative citation; and

(3) A letter from a Director indicating an intent to record a notice of violation.

(b) A request for appeal shall be made in writing and filed with the City Clerk.

(c) The written appeal request shall contain the following:

(1) A brief statement setting forth the interest the appealing party has in the matter relating to the imposition of the penalty;

(2) A brief statement, in ordinary and concise language, of the material facts which the appellant claims support his/her/its contention that no administrative penalty should be imposed or that an administrative penalty of a different amount is warranted; and

(3) An address which the appellant agrees notice of any additional proceedings or an order relating to the imposition of the administrative penalty may be received by first class mail.

(d) As soon as practicable after receiving the written notice of appeal, a director shall request the City Manager or his or her designee to appoint an administrative hearing officer. The Director shall schedule a date, time and place for the hearing. A continuance of the hearing may be upon written request to the Director and upon a showing of good cause.

(e) Written notice of the date, time and place of the hearing shall be served at least ten (10) calendar days prior to the date of the hearing. Notice of hearing shall be sent to the appellant by first class mail at the address provided with the written appeal request. The administrative hearing shall be set for an appeal hearing no sooner than twenty (20) days following a request for a hearing.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Failure to attend the administrative hearing by the person appealing an administrative notice and order or administrative citation shall constitute a waiver of his or her rights to an administrative hearing and adjudication of the notice or citation, or any portion of the notice or citation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The hearing officer may continue a hearing based on good cause shown by one of the parties to the hearing or if the hearing officer determines that due process has not been adequately afforded to one of the parties.

(b) The hearing officer shall have the authority to issue subpoenas for orders to appear and produce testimony or subpoena duces tecum for orders to produce documents. The hearing officer shall only issue a subpoena upon a showing of reasonable necessity by the requesting party.

(c) It is unlawful for any person to refuse to obey a subpoena issued by the administrative hearing officer. Failure to obey a subpoena constitutes contempt and may be prosecuted as a misdemeanor.

(d) The administrative hearing officer has continuing jurisdiction over the subject matter of an administrative appeal hearing for the purposes of granting a continuance, ensuring compliance with an administrative order, modifying an administrative order, or where extraordinary circumstances exist, granting a new hearing.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) At the time set for the administrative appeal hearing, the hearing officer shall proceed to hear testimony from the representative of the City, the appellant and any other competent persons with respect to imposition of an administrative penalty.

(b) The proceedings at the hearing shall be reported by a tape recording. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the requesting party's own expense.

(c) The hearing officer may, upon request of the responsible party against whom a penalty is to be imposed, or upon request of the City, grant continuances from time to time for good cause shown, or upon his/her own motion.

(d) The administrative hearing is intended to be informal in nature. Formal rules of evidence and discovery do not apply.

(e) The parties may represent themselves or be represented by any person of their choice.

(f) If a party does not proficiently speak or understand the English language, he/she may provide an interpreter, at that party's own cost, to translate for the party. The interpreter shall not have any personal involvement in the issues of the case prior to the hearing.

(g) Each party shall have the opportunity to cross-examine witnesses and present evidence in support of his or her case.

(h) The standard of proof to be used by the hearing officer in deciding the issues at an administrative hearing is by a preponderance of the evidence.

(i) The City bears the burden of proof at an administrative hearing to establish the existence of a violation of this Code or applicable State Codes. In the case of an abatement hearing the City bears the burden of proof to establish the existence of a public nuisance.

(j) In the case of a violation related to property in the City, the hearing officer may inspect the building and premises involved in the hearing prior to, during, or after the hearing, provided that:

(1) Notice of such inspection shall be given to the party before the inspection is made;

(2) The parties consent and are given an opportunity to be present during the inspection; and

(3) The hearing officer shall state for the record during the hearing, or file a written statement after the hearing for inclusion in the hearing record, the material facts observed and the conclusions drawn therefrom. Notice to the parties, or the owner's consent to inspect the building and surrounding properties is not required if the property can be inspected from areas in which the general public has access or with permission of other persons authorized to provide access to the property on which the building is located.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The decision of the administrative hearing officer shall be entitled "administrative enforcement order."

(b) The administrative enforcement order shall become final on the date of service of the order.

(c) The administrative enforcement order shall be served on all parties by any one of the methods listed in Section 1-6.205 of this Code.

(d) The order shall be issued within thirty (30) days of the hearing, shall be in writing, and shall contain findings of fact and a determination of the issues presented.

(e) The order shall require the administrative penalty to be paid within twenty-five (25) calendar days of the date of service of the order.

(f) The order shall inform the owner that if the administrative penalty is not paid within the time specified, it may be made a personal obligation of the owner, it may also be made a lien against the property owned by the responsible party against whom the penalty was imposed, and may be collected by special assessment.

(g) The order shall inform the responsible party against whom an administrative penalty has been imposed that any appeal of the hearing officer's decision must be filed with a court of competent jurisdiction pursuant to California Code of Civil Procedure Sections 1094.5 and 1094.6.

(h) The administrative hearing officer, as part of the administrative enforcement order, may reduce, waive or conditionally reduce penalties assessed by a notice and order or citation.

(i) The hearing officer may also impose conditions and deadlines to correct the violations or require payment of any outstanding penalties.

(j) The hearing officer may assess reasonable administrative costs.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Once an administrative enforcement order becomes final as provided for in this chapter, the time in which judicial review of the order must be sought shall be governed by California Code of Civil Procedure Section 1094.6.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

It is unlawful for a party to an administrative enforcement hearing who has been served with a copy of the final administrative enforcement order to fail to comply with the order. Failure to comply with a final administrative enforcement order may be prosecuted as a misdemeanor.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The Council finds that its purpose in adopting this title is to establish a procedure for the administrative and summary abatement of public nuisances and code violations. The procedures established in this article are in addition to any other legal remedy, criminal or civil, established by law which may be pursued to address municipal code or applicable State Codes violations. These sections govern all other nuisance abatement procedures established in other chapters of this Code unless other procedures are specifically state to apply.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Any condition caused, maintained or permitted to exist in violation of any provisions of this Code or applicable State Codes which constitutes a public nuisance may be abated by the City pursuant to the procedures set forth in Article 6.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Abatement Notice.

(1) Whenever a Director or his or her designee determines that public or private property or any portion of private property is a public nuisance as declared in a specific section of this Code or applicable State Codes, a notice and order may be issued to the responsible party to abate the public nuisance. The notice and order shall comply with Section 1-6.303 of this Code.

(2) The notice and order to abate a public nuisance shall contain a description of the property in general terms reasonably sufficient to identify the location of the property. It shall refer to this Code or applicable State Code violations which rendered the property a public nuisance.

(3) The notice and order to abate a public nuisance shall describe the action required to abate the public nuisance which may include corrections, repairs, demolition, removal, obtaining the necessary permits, vacation of tenants or other appropriate action and shall establish time frames by which each action must occur.

(4) The notice and order to abate a public nuisance shall explain the consequences should the responsible party fail to comply with the terms of the notice.

(5) The notice and order to abate a public nuisance shall identify all applicable hearing and appeal rights.

(6) The notice and order shall be served by any one of the methods of service listed in Section 1-6.205 of this Code.

(b) Abatement of Public Nuisance by the City.

(1) Once the Director or his or her designee follows the procedures set forth herein and the time for compliance has lapsed, if the violations remain, the nuisance conditions may be abated by City personnel or by a private contractor.

(2) City personnel or a private contractor can enter upon private property in a reasonable manner as provided by law to abate the public nuisance as specified in the notice and order to abate a public nuisance.

(3) If the responsible party abates the nuisance conditions before the City performs the actual abatement pursuant to a notice and order to abate a public nuisance, the Director may still assess all costs incurred by the City against the responsible party pursuant to the procedure set forth herein.

(4) When the abatement is completed, a report describing a work performed and an itemized account of the total abatement costs shall be prepared by the Director. The report shall contain the names and addresses of the responsible parties of each parcel, the name and address of the property owner if different from the responsible party, the tax assessor's parcel number and a legal description of the property if the responsible party is an owner.

(5) The Director shall schedule a confirmation of costs hearing before an administrative hearing officer unless waived in writing by all responsible parties. That hearing shall be held pursuant to the procedures set forth in Article 5 of this chapter.

(6) All administrative and actual costs incurred by the City in abating the violations may be assessed and recovered against the responsible party pursuant to the provisions set forth in this chapter.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Authority. Whenever a Director determines that an imminent life safety hazard exists that requires immediate correction or elimination, the Director may exercise the following powers without prior notice to the responsible party:

(1) Order the immediate vacation of any tenants and prohibit occupancy until all repairs are completed; or

(2) Post the premises as unsafe, substandard or dangerous; or

(3) Board, fence or secure the building or site; or

(4) Raise and grade that portion of the building or site to prevent further collapse and remove any hazard to the general public; or

(5) Make any minimal emergency repairs as necessary to eliminate any imminent life safety hazards; or

(6) Take any other action as appropriate under the circumstances.

(b) Procedure.

(1) A Director shall pursue only the minimum level of correction or abatement as necessary to eliminate the immediacy of the hazard. Costs incurred by the City during the summary abatement process shall be assessed and recovered against the responsible party through the procedure outlined in Section 1-6.702 of this chapter.

(2) The Director may also pursue any administrative or judicial remedy to abate any remaining public nuisance.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Once a final administrative decision or judicial order establishes the amount of civil penalties, abatement costs, administrative fees and costs assessed against a responsible party for Code violations, the Director may record a code enforcement lien against any real property owned by the responsible party.

(b) Before recordation, the Director shall provide to the responsible party a written notice informing him or her that a code enforcement lien will be recorded unless the City receives full payment for the outstanding amount of civil penalties, costs and fees within the time period prescribed in the notice. Payment shall be due a minimum of ten (10) calendar days from the date of the mailing.

(c) The Director shall serve this notice by any one of the methods of service set forth in Section 1-6.205.

(d) If the Director does not receive payment of the outstanding civil penalties and costs within the prescribed time period, the Director may record the code enforcement lien.

(e) The code enforcement lien shall include the name of the property owner and any affected financial institution, assessor's parcel number, the parcel's legal description, the total amount of civil penalties, costs and fees due, including a breakdown of penalty assessments and reimbursement for the City's administrative costs, and a copy of the administrative or judicial order which awarded the civil penalties, costs and fees.

(f) A copy of the recorded code enforcement lien shall be served upon the responsible party by one of the methods of service set forth in Section 1-6.205 of this Code.

(g) The failure of any person with a financial interest in the property to actually receive the notice of lien shall not affect the validity of the lien or any proceedings taken to collect the outstanding civil penalties.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Procedure.

(1) The Director may assess a nuisance abatement lien pursuant to Government Code Section 38773.1 by following the following procedures:

(i) Prior notice shall be served upon the owner of the parcel abated by the City before recordation of the lien.

(ii) The notice shall be served in the same manner as summons in a civil action.

(iii) If the owner cannot be found after a diligent search, the notice may be served by posting it on the property for a period of ten (10) calendar days and by publication thereof in a newspaper of general circulation published in the county in which the property is located.

(iv) A nuisance abatement lien shall be recorded in the County Recorder's Office in the county in which the parcel of land is located and from the date of recording shall have the same force, affect, and priority of a judgment lien.

(A) A nuisance abatement lien shall specify the amount of the lien, the name and address of the responsible City department, the date of the abatement order, the street address, legal description and assessor's parcel number of the parcel on which the lien is imposed, and the name and address of the recorded owner of the parcel.

(B) In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge containing the information specified in subsection (a) above shall be recorded by the Director.

(v) A nuisance abatement lien may be foreclosed by an action brought by the City for a money judgment.

(vi) The City may recover from the property owner any costs incurred regarding the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien.

(b) Recovery of Abatement Costs.

(1) Confirmation of Costs Hearing.

(i) After the City has abated a public nuisance, the Director shall request the City Manger to schedule a confirmation of costs hearing in accordance with the administrative enforcement hearing procedures set forth in Article 5. A confirmation of cost hearing is also appropriate if the City incurred abatement preparation costs before a responsible party voluntarily abated the public nuisance.

(ii) A notice of the date, time and place of the confirmation of costs hearing shall be served on the responsible party at least ten (10) calendar days prior to the scheduled hearing by any one of the methods set forth in Section 1-6.205.

(iii) A copy of the report describing the work performed and an itemized account of the total abatement costs prepared pursuant to Sections 1-6.603 or 1-6.604 of this chapter shall also be served on the responsible party at least ten (10) calendar days prior to the scheduled hearing by any one of the methods set forth in Section 1-6.205.

(iv) The enforcement hearing officer at the confirmation of costs hearing shall limit the scope of review to the Director's report describing the work performed and the itemized account of costs together with any objections to its accuracy. The enforcement hearing officer may make such revisions, corrections or modifications in the report or the account as may be just and reasonable.

(v) The enforcement hearing officer may issue an order which assesses the costs as either a personal obligation against the responsible party or a special assessment against the real property abated by the City.

(vi) At the confirmation of costs hearing, the enforcement hearing officer shall not consider evidence regarding the merits of the previous abatement hearing or review the decision ordering the administrative or summary abatement.

(vii) The enforcement hearing officer's order confirming or modifying the amount of costs incurred by the City in performing the abatement shall be final.

(2) Recovery of Abatement Costs as a Personal Obligation. If the enforcement hearing officer orders that abatement costs be charged as a personal obligation of the responsible party, the Director shall collect the obligation by use of all appropriate legal means. This may include the recordation of a code enforcement lien against any real property owned by the responsible party pursuant to the provisions set forth in Article 7. If unable to collect this obligation, the Director may refer the case to the Finance Department or refer it to the City Attorney to file a court action to recover the costs.

(3) Recovery of Abatement Costs by Special Assessment.

(i) If the enforcement hearing officer orders that abatement costs shall be charged against the property, the Director shall prepare a notice of special assessment.

(ii) The Director shall deliver the notice of special assessment to the County Auditor who shall place it on the County Assessment Roll pursuant to Government Code Section 38773.5.

(iii) The notice of special assessment shall include a copy of the enforcement hearing officer's confirmation of costs order and shall summarize the abatement action. The Director may record a copy of this special assessment notice to inform any subsequent purchasers or owners about this abatement action and costs.

(iv) The Director shall file a withdrawal of this notice with the County Recorder when either: (1) the responsible party pays in full the abatement costs; or (2) the County Auditor or Tax Collector posts a lien on the property pursuant to Government Code Section 38773.5.

(4) Collection of Assessment—Penalties and Foreclosure. Pursuant to the provisions of Government Code Section 38773.5 the County Tax Collector may collect the amount of the assessment at the same time and in the same manner as ordinary municipal taxes, and impose the same penalties and procedures, including the sale of the property, in case of delinquency, as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of property taxes shall be applicable to the special assessment. The provisions of Government Code Sections 38772 through 38773.5, and any amendments to those sections, are hereby incorporated by reference and made a part of this article.

(5) Nuisance Abatement Lien. As an alternative to the recovery of abatement costs by special assessment the Director can record a nuisance abatement lien pursuant to the provisions set forth in this article.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The Council finds that there is a need to give notice of pending enforcement actions to persons who may subsequently acquire the property as a means by which to ensure the violations will be corrected. This may be accomplished through the issuance and recordation of a notice of violation.

(b) The procedures set forth in this title shall be in addition to criminal, civil, or any other remedy established by law which may be pursued by the City to address violations of this Code.

(c) Whenever a Director determines that a violation of this Code or applicable State Codes exists, the Director may issue a notice of violation to a responsible party. The notice of violation shall contain the following:

(1) The name of the record owner of the property;

(2) The street address of the property;

(3) The Code sections violated;

(4) A description of the property's condition which violates the applicable Code;

(5) A list of all corrections required to bring the property into compliance;

(6) A specific date to correct the violations identified in the notice of violation;

(7) An explanation of the potential consequences should the property remain in violation after the expiration of the compliance deadline. These consequences shall include, but are not limited to, criminal prosecution, civil injunction, administrative abatement, civil penalties, and recordation of notice of violation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) Once a Director has issued a notice of violation to a responsible party and the property remains in violation after the compliance date established in the notice of violation, the Director may record the notice of violation with the Stanislaus County Recorder's Office. The Director shall provide the responsible party a notice of intent to record prior to the recordation of the notice of violation. The notice of intent to record shall state that a notice of violation will be recorded unless a written request to appeal the action is received pursuant to the procedures set forth in this Title. The notice of intent to record shall be served according to the procedures set forth in Section 1-6.205 of this Code.

(b) If no written request to appeal is received within the time frame specified in the notice of intent to record, the Director may cause the notice of violation to be recorded, as long as the violation remains on the premises.

(c) The recorded notice of violation shall include the following:

(1) The name of the property owner;

(2) The assessor's parcel number of the premises in violation;

(3) The street address of the premises in violation;

(4) The parcel's legal description; and

(5) A copy of the latest notice of violation.

(d) Any costs associated with recording and removal may be assessed against the property as set forth in this Title.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

A copy of the recorded notice of violation shall be mailed to the responsible party and to the property owner and/or any other persons who have requested copies of the notice. Service shall be made pursuant to the provisions of Section 1-6.205 of this Code.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) An appeal of the Director's notice of intent to record the notice of violation shall follow the procedures set forth in Section 1-6.502 of this Code.

(b) The Director shall, upon receiving a written appeal, schedule a hearing. The purpose of the hearing is to provide the responsible party or property owner an opportunity to state why a notice of violation should not be recorded.

(c) The failure of any person to file an appeal in writing shall constitute a waiver of the right to administrative hearing and shall not affect the validity of the recorded notice of violation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The hearing officer shall only consider evidence relevant to the following issues:

(1) Whether the conditions listed in the notice of violation violate this Code or applicable State Codes; and

(2) Was the responsible party afforded due process.

(b) If the hearing officer affirms the Director's decision, the Director may proceed to record the notice of violation.

(c) If the hearing officer determines the recordation is improper, the hearing officer shall invalidate the Director's decision to record the notice of violation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) The responsible party or property owner may file, once the violations listed in the notice of violation have been corrected, a written request for a notice of compliance with the Director.

(b) The Director shall reinspect the property within ten (10) days from receipt of the request to determine whether the violations listed in the notice of violation have been corrected and whether all necessary permits have been issued and final inspections have been performed, if any are needed.

(c) The Director shall provide a notice of compliance to the responsible party or property owner. Upon determining that:

(1) All violations listed in the recorded notice of violation have been corrected;

(2) All necessary permits have been issued and finalized; and

(3) All administrative civil penalties have been paid.

(d) In addition to administrative civil penalties, administrative costs may be assessed. Administrative costs may include costs incurred in the investigation, inspection, reinspection, title search, appeal hearing, and any other processing costs with the violations identified in the notice of violation.

(e) If the Director denies or requests to issue a notice of compliance, the Director shall serve the requesting party, the responsible party and the property owner with a written explanation within five (5) days from the inspection setting forth the reasons for the denial. A written explanation shall be served pursuant to the provisions set forth in Section 1-6.205 of this Code.

(f) The Director's decision denying a request to issue a notice of compliance constitutes a final decision in the matter and is not appealable.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The Director shall record or cause to be recorded the notice of compliance with the County Recorder's Office. The recordation of the notice of compliance shall have the effect of canceling the recorded notice of violation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

If any section, subsection, sentence, clause, phrase or portion of this chapter is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this article. The City Council declares that it would have adopted such section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one (1) or more sections, subsections, sentences, clauses, phrases or portions be declared invalid or unconstitutional.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

The Council finds there's a need for mediation as a means to gain compliance with the provisions of this Code. Mediation often resolves disputes in a more efficient and effective manner without the necessity of more formal administrative action or litigation. The Council further finds that mediation provides an excellent manner in which to exchange ideas, can foster better relations among and with the citizenry of Modesto and enhances the reputation of the City.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

(a) "Enforcement case" means any complaint or case on file with a City department that involves alleged violations of this Code or applicable provisions of State Law.

(b) "Disputing party" means any person responsible for alleged violations, interested or involved citizens who may have complained to the City about the alleged violations, crime victims and appropriate representatives from the City department.

(c) "Mediation" means a meeting between or among disputing parties to clarify their differences and develop and design their own mutually acceptable agreement with the assistance of a mediator.

(d) "Mediator" means an employee or agent of the City appointed at the discretion of the City Manager or by his or her designee. In the alternative, the City Manager may retain a third party to act as a mediator.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

A director may refer enforcement cases and other types of disputes and controversies to the City Manager or his or her designee to schedule and coordinate a mediation as may be appropriate under the circumstances.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

All documents and results related to the mediation shall be kept confidential in any subsequent administrative or judicial proceedings. Evidence Code Sections 1152 and 1152.5 and other laws pertaining to confidentiality shall apply to the mediation.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)

Failure by any of the disputing parties to participate in good faith in a mediation or to comply with the terms of the mediation agreement shall not preclude any of the parties to the mediation from pursuing further administration or legal action as provided by law.

(Added by Ord. 3102-C.S., § 1, effective 11-26-98)