Modesto Municipal Code Art. 13 Violations

It shall be unlawful for any person, firm, or corporation to erect, construct, alter, extend, repair, move, remove, demolish, or occupy any building, structure, plumbing, mechanical, or electrical system, parts thereof, or equipment regulated by this Code, or cause same to be done, in conflict with or in violation of any of the provisions of this Code.

(Ord. 3465-C.S., § 1, effective 1-3-08)

The Building Official is authorized to serve a notice of violation or notice and order on the person responsible for the erection, construction, alteration, extension, repair, moving, removal, demolition, or occupancy of a building or structure in violation of the provisions of this Code, or in violation of a permit or certificate issued under the provisions of this Code. Such order shall direct the discontinuance of the illegal action or condition and the abatement of the violation.

(Ord. 3465-C.S., § 1, effective 1-3-08)

Service of the notice of violation or notice and order may be made upon all persons entitled thereto either by personal delivery or by certified mail, return receipt requested. Service may be made upon the record owner at his/her/their address as it appears on the last equalized assessment roll of Stanislaus County recorded documents or as known to the Building Official. A copy of the notice of violation or notice and order and any amended or supplemental notice of violation or notice and order shall also be posted on the premises.

(a) In lieu of personally serving the owner or service by certified mail, service of the notice of violation or notice and order and any amended or supplemental notice of violation or notice and order may be made as follows:

(1) In the event that the owner refuses to accept certified return receipt mail or cannot be personally served, service may be made by substituted service. Substituted service may be accomplished as follows:

(i) By leaving a copy during usual business hours in the recipient's business with the person who is apparently in charge, and by thereafter mailing by first class mail a copy to the recipient where the copy was left;

(ii) By leaving a copy at the recipient's dwelling or usual place of abode, in the presence of a competent member of the household and thereafter mailing, by first class mail, a copy to the recipient at the address where the copy was left.

(2) In the event the owner refuses to accept certified return receipt mail or cannot be personally served and has a property manager or rental agency overseeing the premises, substituted service may be as set forth in subsection (a)(1) of this section upon the property manager or rental agency.

(3) If the owner lives out of state and will not accept certified return receipt mail, then service may be made by first class mail.

(4) If the owner of the property cannot be located, or service cannot be effected as set forth in this section, service may be made by publication in a Modesto newspaper of general circulation which is most likely to give actual notice to the owner. Service shall be deemed sufficient when it is accomplished pursuant to Government Code Section 6063.

The failure of any such person to receive such notice of violation or notice and order shall not affect the validity of any proceedings taken under this chapter. Service by certified mail in the manner herein provided shall be effective on the date of mailing.

(Ord. 3465-C.S., § 1, effective 1-3-08)

Proof of service of the notice of violation or notice and order shall be certified to at the time of service by a written declaration under penalty of perjury executed by the person effecting service, declaring the time, date and manner in which service was made. The declaration, together with any receipt returned in acknowledgment of receipt by certified mail, shall be affixed to the copy of the notice of violation or notice and order retained by the Building Official.

(Ord. 3465-C.S., § 1, effective 1-3-08)

If compliance is not had with the notice of violation or notice and order within the time specified therein, and no appeal has been properly and timely filed, the Building Official may file in the office of the County Recorder a certificate describing the property and certifying (a) that the building is a substandard building, and (b) that the owner has been so notified. Whenever the corrections ordered shall thereafter have been completed or the building demolished so that it no longer exists as a substandard building on the property described in the certificate, the Building Official shall file a new certificate with the County Recorder certifying that the building has been demolished or all required corrections have been made and fees paid and that the building is no longer substandard, whichever is appropriate.

(Ord. 3465-C.S., § 1, effective 1-3-08)

Any person having any record title or legal interest in the building may appeal from any notice of violation or notice and order or any action of the Building Official under this title by filing at the office of the Building Official within thirty (30) calendar days from the date of service of the notice of violation or notice and order, or the date of the action of the Building Official, a written appeal.

(a) The written appeal must contain a brief statement setting forth the legal interest of each of the appellants in the building or the land subject to the action of the Building Official or involved in the notice of violation or notice and order. The written appeal must contain a brief statement in ordinary and concise language of the specific order, action and/or Building Code section under protest, together with any material facts that support the contentions of the appellant.

(b) The written appeal must contain a brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed, why the protested order or action should be reversed, modified, or otherwise set aside.

(c) The written appeal must contain signatures of all parties named as appellants and their official mailing addresses.

(d) At least one (1) appellant must submit a declaration under penalty of perjury as to the truth of matters stated in the appeal. This declaration must be submitted with the written appeal itself.

(Ord. 3465-C.S., § 1, effective 1-3-08)

(a) Upon receipt of any appeal filed and payment of the appeal fee, as adopted from time to time by resolution of the City Council of the City of Modesto, the Building Official shall forward the appeal to the secretary of the Board of Building Appeals. The secretary shall calendar the appeal for a hearing.

(b) If the appeal is received by the Building Official not later than fifteen (15) calendar days prior to the next regular meeting of the Board, it shall be calendared for hearing at said meeting.

(c) If the appeal is received by the Building Official on a date less than fifteen (15) calendar days prior to the next regular meeting of the Board, it shall be calendared for hearing at the next subsequent meeting of the Board.

(Ord. 3465-C.S., § 1, effective 1-3-08)

As soon as practicable after receiving a written appeal, the Building Official shall fix a date, time and place for the hearing of the appeal by the Board of Building Appeals. Such date shall be not less than ten (10) calendar days nor more than forty-five (45) calendar days from the date the appeal was filed with the Building Official. Written notice of the time and place of the hearing shall be given at least ten (10) calendar days prior to the date of the hearing to the appellant(s) by the Building Official either by causing a copy of such notice to be delivered to the appellant(s) personally or by mailing a copy thereof, postage prepaid, addressed to the appellant(s) at the address(es) shown on the appeal.

(Ord. 3465-C.S., § 1, effective 1-3-08)

The notice to appellant shall be substantially in the following form, but may include other information:

You are hereby notified that a hearing will be held before the Board of Building Appeals at ___________ on the day of ________, 20___, at the hour _______ upon the notice of violation/action of the Building Official/notice and order served upon you. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to cross-examine all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production of books, documents or other things by filing an affidavit therefor with the Board of Building Appeals.

(Ord. 3465-C.S., § 1, effective 1-3-08)

The Building Official shall collect and require an appeal fee to be paid at the time any appeal allowed by this Code is filed. The appeal fee shall be as adopted from time to time by resolution of the City Council of the City of Modesto. The fee shall be calculated to recover the total City costs incurred in the appeal including, but not limited to, staff time to process and handle the appeal, preparation and service of notices and staff appearance at the appeal hearing. No appeal shall proceed without payment of the fee at the time the appeal is filed. The Building Official may waive the appeal fee upon written request for good cause shown. Good cause may include severe economic hardship, significant attempts to comply with the decision of the Building Official, notice of violation or notice and order, and other factors indicating good faith attempts to comply with the decision of the Building Official, notice of violation or notice and order.

(Ord. 3465-C.S., § 1, effective 1-3-08)

Failure of any person to file a timely appeal in accordance with the provisions of this chapter shall constitute an irrevocable waiver of the right to an administrative hearing and a final adjudication of the decision of the Building Official, notice of violation or notice and order, or any portion thereof, subject only to review pursuant to the provisions of California Code of Civil Procedure Section 1094.5.

(Ord. 3465-C.S., § 1, effective 1-3-08)

If a notice of violation or notice and order has not been satisfied on a particular property, and a timely appeal has not been filed, further permits or approvals for continued work permitted by this Code shall not be granted for that property unless specifically approved by the Building Official and the violation has been corrected, inspected and approved.

(Ord. 3465-C.S., § 1, effective 1-3-08)

If the notice of violation or notice and order is not complied with promptly, the Building Official is authorized to request the legal counsel of the City of Modesto to institute the appropriate proceeding at law or in equity to restrain, correct, or abate such violation, or to require the removal or termination of the unlawful occupancy of the building or structure in violation of the provisions of this Code or of the order or direction made pursuant thereto.

(Ord. 3465-C.S., § 1, effective 1-3-08)

In addition to all other remedies available at law, any person who violates a provision of this Code or fails to comply with any of the requirements thereof or who erects, constructs, alters, or repairs a building or structure in violation of the approved construction documents or directive of the Building Official, or of a permit or certificate issued under the provisions of this Code, shall be subject to Administrative Remedies as prescribed by Title 1, Chapter 6, of the City of Modesto Municipal Code.

(Ord. 3465-C.S., § 1, effective 1-3-08)

After any order of the Building Official, the Board of Building Appeals or the Disabled Access Appeals Board made pursuant to this Code becomes final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. Any such person who fails to comply with any such order is guilty of a misdemeanor.

(Ord. 3465-C.S., § 1, effective 1-3-08)

If, after any order of the Building Official, the Board of Building Appeals, or Disabled Access Appeals Board made pursuant to this Code has become final, the person to whom such order is directed shall fail, neglect or refuse to obey such order, the Building Official may (a) cause such person to be prosecuted under Section 9-1.1318 or (b) institute any appropriate action to abate such building as a public nuisance. These remedies are in addition to all other remedies allowed by law.

(Ord. 3465-C.S., § 1, effective 1-3-08)

No person shall obstruct, impede or interfere with any officer, employee, contractor or authorized representative of the City of Modesto or with any person who owns or holds any estate or interest in any building that has been ordered repaired, vacated or demolished under the provisions of this Code, or with any person to whom such building has been lawfully sold pursuant to the provisions of this Code, whenever such officer, employee, contractor or authorized representative of the City of Modesto, person having an interest or estate in such building or structure, or purchaser is engaged in the work or repairing, vacating and repairing, or demolishing any such building pursuant to the provisions of this Code, or in performing any necessary act preliminary to or incidental to such work or authorized or directed pursuant to this Code.

(Ord. 3465-C.S., § 1, effective 1-3-08)

It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements of this Code. A violation of any of the provisions or failing to comply with any of the requirements of this Code shall constitute a misdemeanor; except that notwithstanding any other provision of this Code, any such violation constituting a misdemeanor under this Code may, in the discretion of the City Attorney, be charged and prosecuted as an infraction. Any person convicted of a misdemeanor under the provisions of this Code, unless provision is otherwise herein made, shall be punishable by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period of not more than six (6) months or by both fine and imprisonment. Any person convicted of an infraction under the provisions of this Code, unless provision is otherwise herein made, shall be punishable by a fine only as follows: Upon a first conviction, by a fine of not exceeding two hundred fifty dollars ($250.00) and for a second conviction or any subsequent conviction within a period of one (1) year, by a fine of not exceeding five hundred dollars ($500.00).

Each such person shall be charged with a separate offense for each and every day during any portion of which any violation of any provision of this Code is committed, continued or permitted by such person and shall, upon conviction, be punished accordingly.

(Ord. 3465-C.S., § 1, effective 1-3-08)

In addition to all other remedies set forth in this chapter, administrative penalties pursuant to Title 1, Chapter 6, of the Modesto Municipal Code may be imposed against any person for violating any of the requirements set forth in this chapter.

(Ord. 3465-C.S., § 1, effective 1-3-08)