Moraga Municipal Code Ch. 1.28 Administrative Penalties

The town council finds and declares that:

A. There is a need for an alternative method of enforcement for violations of the Moraga Municipal Code, state codes and conditions on land use approvals. The town council further finds that an appropriate method of enforcement is the imposition of administrative fines or penalties as authorized by Government Code Section 53069.4.

B. Enforcement of the Moraga Municipal Code, state codes and conditions on land use approvals are matters of local concern and serve to protect the public health, safety and welfare of the citizens of the town, and a method for such enforcement is a valid exercise of the town's police power.

C. Issuing administrative citations encourages voluntary and complete compliance with the provisions of this Code, state codes, and conditions on land use approvals in a timely and cost efficient manner for the protection and benefit of the entire community.

(Ord. No. 249, § 1, 9-10-2014)

The issuance of an administrative citation under this chapter is solely at the town's discretion and is one of various options that the town has to address violations of this Code. This chapter does not limit the town's discretion to utilize any other remedy, civil or criminal, to address such violations.

(Ord. No. 249, § 1, 9-10-2014)

For purposes of this chapter, the following definitions shall apply:

"Compliance officer" means any officer or employee designated by the town manager to enforce the Moraga Municipal Code or applicable state codes in accordance with the provisions of this Code.

"Director" means the director of administrative services and finance of the town of Moraga.

"Hearing officer" means a person appointed by the town manager, in compliance with any and all applicable legal requirements, to serve as the hearing officer for administrative citation hearings.

"Juvenile" is any person under the age of eighteen (18) years.

"Land use approval" means any approval required for a particular use of land, including without limitation, licenses, conditional use permits, variances or subdivision maps.

"Owner" means the record owner of a parcel according to Contra Costa County's latest equalized property tax assessment roll.

"Person" means and includes a natural person or legal entity, and the owners, majority stockholders, corporate officers, trustees and general partners of a legal entity.

"Responsible party" means any person or persons in charge of the property or location or the person or persons responsible for the event or incident and shall include any of the following:

1. The person or persons who own the property where the violation(s) exist(s) or occur;

2. The person or persons in charge of the property where the violation(s) exist(s) or occurs;

3. The person or persons using the property when the violation(s) exist(s) or occurs;

4. The lienholder as shown on the last equalized assessment roll or the supplemental roll, whichever is more current;

5. If any of the persons in subsections 1 through 3 of this definition are juveniles, the parent or guardian of such juvenile; and

6. If the person or persons is a business entity, the manager or on-site supervisor where the violation(s) exist(s) or occur(s).

(Ord. No. 249, § 1, 9-10-2014)

A. Any person violating any provision of the Moraga Municipal Code or applicable state codes may, at the town's discretion, be issued an administrative citation by a compliance officer as provided in this chapter.

B. Every person who applies for and receives any type of land use approval or entitlement shall comply with all conditions imposed upon the issuance of such approval or entitlement. Any person violating a condition may, at the town's discretion, be issued an administrative citation by a compliance officer as provided in this chapter.

C. Each and every day a violation exists shall constitute a separate and distinct violation and may be subject to a separate fine or penalty.

D. An administrative citation shall be on a form approved by the town manager and shall contain the following information:

1. Date, time and address, or definite description, of the location where the violation was observed;

2. The code section or condition violated and a description of the violation;

3. A description of the action required to correct the condition or violation;

4. An order prohibiting the continuation or repeated occurrence of the violation;

5. The amount of the fine for the violation;

6. An explanation of how the fine shall be paid and when it shall be paid;

7. Potential penalties for late payment or failure to pay fine;

8. Notification of the right to appeal, including the time within which the administrative citation may be contested and the place to obtain a request for hearing form to appeal the administrative citation;

9. The name and signature of the compliance officer; and

10. Date the citation was issued.

E. For the purposes of this chapter, there may be more than one responsible party for any violation and each responsible person shall be jointly and severally liable for any violation.

F. An administrative citation issued in accordance with this section shall be served as provided below:

1. The administrative citation shall be served on the responsible party or parties either by personal service, by first class mail, or by certified mail, return receipt requested.

2. When real property is involved in the violation, the administrative citation shall be served on the responsible party and, if not the responsible party, to the property owner at the address as shown on the last equalized county assessment roll. If personal service or service by mail on the property owner is unsuccessful, a copy of the citation shall be conspicuously posted at the property which is the subject of the violation. The town may, in its discretion, also serve notice on a tenant, a mortgagor or any other person having an interest in the property by personal service, by first class mail, or by certified mail, return receipt requested.

3. The failure of a person to receive, accept or sign the administrative citation shall not affect the validity of any proceedings taken under this chapter.

G. In the event that a compliance officer determines that an administrative citation was issued in error, the compliance officer may request the town manager to cancel the administrative citation. The town manager shall consider the request and determine whether good cause exists to cancel the citation. If the town manager cancels the citation, the compliance officer shall issue a cancellation and any fees paid shall be refunded.

(Ord. No. 249, § 1, 9-10-2014)

A. The amount of the fines for violations pursuant to this chapter shall be established by separate resolution of the town council.

B. The fine shall be paid to the town within thirty (30) days from the date on the citation that the administrative citation was issued.

C. If the fine in any administrative citation is not paid within the time prescribed herein, a late payment fee may be charged in an amount to be established by separate resolution of the town council.

D. Any administrative citation fine paid pursuant to this section shall be refunded if after a hearing it is determined that the person charged with the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation or if the town manager cancels the citation.

E. Payment of a fine under this chapter shall not excuse or discharge any continuation or repeated occurrence of any violation that is the subject of the administrative citation, nor shall it bar further enforcement action by the town.

(Ord. No. 249, § 1, 9-10-2014)

A. Any recipient of an administrative citation may appeal the citation by completing a request for hearing form, to be obtained from and returned to the town clerk within fifteen (15) calendar days from the date on the citation that the administrative citation was issued. The request for hearing form must be accompanied by an advance deposit of the fine or a request for an advance deposit hardship waiver as described in Section 1.28.070. If the advance deposit hardship waiver is not issued, an advance deposit of the fine must be remitted to the town as provided in Section 1.28.070(D). If multiple citations are being appealed, the town clerk and hearing officer may consolidate the appeals into one hearing.

B. The request for hearing form must contain the following information:

1. The name, address, and signature of the responsible person appealing the administrative citation;

2. A brief statement in ordinary and concise language of the specific item that is contested, together with any supportive facts; and

3. A brief statement in ordinary and concise language of the relief sought and the reason why the administrative citation should be rescinded, modified, or otherwise set aside.

C. Any request for hearing form that fails to provide all of the information required by this section shall be deemed incomplete and the person submitting the form shall be notified of such determination.

D. A hearing before the hearing officer shall be set for a date that is not less than fifteen (15) or more than sixty (60) calendar days from the date the request for hearing is filed. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) calendar days before the date of the hearing.

E. Failure of a responsible person to appeal the administrative citation within the timeframe provided by this section shall constitute (1) a waiver of any right to an administrative hearing for a determination of the matter contested; and (2) failure to exhaust his or her administrative remedies.

(Ord. No. 249, § 1, 9-10-2014)

A. Any person who intends to request a hearing to contest the validity of a violation or that he or she is the responsible party and who is financially unable to make the advance deposit of the fine may request an advance deposit hardship waiver.

B. The request shall be submitted to the town clerk and processed by the administrative services department. The requirement of depositing the full amount of the fine shall be stayed unless or until the director of administrative services, or his or her designee, makes a determination to grant or deny the advance deposit hardship waiver.

C. The director, or his or her designee, may waive the requirement of an advance deposit set forth in and issue the advance deposit hardship waiver only if the cited party has submitted a sworn affidavit, together with any supporting documents or materials that demonstrate proof of enrollment in a State of California public assistance program, such as Medi-Cal, to the satisfaction of the director, or his or her designee.

D. If the director, or his or her designee, determines to deny an advance deposit hardship waiver, the person shall remit the deposit to the town within ten (10) days of the date of that decision or thirty (30) days from the date of the administrative citation, whichever is later.

E. The director, or his or her designee, shall issue a written determination to issue or not issue the advance deposit hardship waiver. The written determination of the director, or his or her designee, shall be final and shall be served upon the person who applied for the advance deposit hardship waiver.

(Ord. No. 249, § 1, 9-10-2014)

A. No hearing to contest an administrative citation before a hearing officer shall be held unless (1) a request for hearing form has been completed and returned to the town clerk, and (2) the fine has been deposited or an advance deposit hardship waiver obtained.

B. The hearing officer shall only consider evidence that is relevant to whether the violation occurred and whether the responsible person caused and/or maintained the violation.

C. At least ten (10) calendar days before the hearing, the responsible person shall be provided with copies of any and all citations, reports, and other documents submitted or relied upon by the compliance officer.

D. The formal rules of evidence shall not apply to the administrative hearing. All relevant evidence may be considered, and the hearing officer has the discretion to exclude evidence that the hearing officer finds to be irrelevant or redundant.

E. The administrative citation and any additional documents submitted by the compliance officer shall constitute prima facie evidence of the respective facts contained in those documents.

F. The responsible person contesting the administrative citation shall be given the opportunity to (1) testify and present witnesses; (2) introduce relevant evidence; (3) cross-examine and/or rebut any witness testifying in support of the administrative citation; and (4) be represented by anyone designated by the responsible party.

G. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust his or her administrative remedies.

H. The hearing officer may continue the hearing and request additional information from the compliance officer or the responsible person contesting the administrative citation before issuing a written decision.

(Ord. No. 249, § 1, 9-10-2014)

A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel all or part of the administrative citation, which decision shall describe the reasons for the decision. The decision of the hearing officer shall be issued within thirty (30) days of the hearing and shall be final, unless appealed pursuant to section 1.28.100.

B. The hearing officer's decision shall include a statement that the aggrieved party may file an appeal pursuant to Section 1.28.100.

C. If the hearing officer determines that the administrative citation should be upheld, the amount of the fine on deposit with the town shall be retained by the town. If the fine has not been deposited and an advance deposit hardship waiver has been obtained, the hearing officer shall set forth a reasonable schedule of payment.

D. If the hearing officer determines that the administrative citation should be cancelled, the town shall refund the amount of the deposited fine within fifteen (15) calendar days from the date of issuance of the hearing officer's decision.

E. Within five calendar days of issuance of the hearing officer's decision, the town shall serve a copy of the written decision on the recipient of the administrative citation by U.S. certified mail, return receipt requested. Service of the hearing officer's decision shall be deemed completed on the date of mailing.

F. The hearing officer's employment, evaluation, compensation, and/or benefits shall not be conditioned, either directly or indirectly, upon the amount of fine imposed on the responsible person or the number of administrative citations upheld by the hearing officer.

(Ord. No. 249, § 1, 9-10-2014)

A responsible party may appeal the decision of the hearing officer to the town council by filing an appeal in the same manner as set forth in Section 1.28.060 above and depositing an appeal fee in an amount to be determined by Council resolution. The procedures for a town council appeal shall be the same as a hearing before the hearing officer.

(Ord. No. 249, § 1, 9-10-2014)

A. The procedures set forth in this section for the recovery of citation fine(s) and recoverable costs, including late payment fees, are adopted pursuant to Government Code Section 53069.4 which allows the town council to establish a procedure to govern the collection of administrative fines and recoverable costs.

B. To recover past due administrative citation fine(s) and recoverable costs:

1. The compliance officer will cause a copy of the citation(s) to be filed with the administrative services department.

2. An invoice for the citation fine(s) and recoverable costs will be mailed to the property owner and/or responsible party.

a. The invoice for property related citations will include notification that if not paid within thirty (30) days of the date due, a lien and/or assessment on the property may be recorded.

b. The invoice for non-property related citations will include notification that if not paid within thirty (30) days of date due, the account may be referred to a collection agency.

3. If the property owner and/or responsible party does not pay the non-property related citation fine and recoverable costs within thirty (30) calendar days from the date due, the account may be forwarded to a collection agency.

4. If the property owner and/or responsible party does not pay a property related citation fine and recoverable costs within thirty (30) calendar days from the date due, the director of administrative services may authorize that a lien on the property be recorded.

5. If the property related citation fine and recoverable costs remains unpaid forty-five (45) days from the due date, the town may submit the matter as a report to the town council for a special assessment hearing. The report shall include, at a minimum, the names and addresses of the record owner of the property and all persons having any record interest in the property (including but not limited to, holders of mortgages or deeds of trust), the date upon which the violation occurred, a description of the real property subject to the lien, and the total costs. At least ten (10) days prior to the hearing, the town clerk shall give notice, by certified mail, of the hearing to all persons named in the report. The notice shall describe the property by assessor's parcel number and street number or some other description sufficient to enable identification of the property and contain a statement of the amount of the proposed assessment. At the time fixed for receiving and considering the report, the town council shall hear the report and the objections of any of the owners liable to be assessed for the costs or any other persons who may have a legal interest in the property. The town council may add to the proposed assessment an amount equal to the cost of conducting the assessment hearing. The town council may also make such other modifications in the report as it deems necessary, after which, the council may order the report confirmed. The order and modified report shall be filed with the town clerk and shall be final and conclusive. The amounts and the costs mentioned in the report as confirmed shall constitute a special assessment against such property and are a lien on the property for the amount of the respective assessment.

6. The assessment shall continue until it is paid, together with interest at the legal maximum rate computed from the date of confirmation of the statement until payment.

7. The county assessor shall enter each assessment on the county tax roll upon the parcel of land. The assessment shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and procedure and sale in case of delinquency as is provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the citation and recoverable costs relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the citation and recoverable costs shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. The tax collector's power of sale shall not be affected by the failure of the property owner to receive notice.

C. On behalf of the town, the town manager or designee may collect any citation fines and recoverable costs by use of all available legal means, including filing an action in a court of law or small claims court, and the choice of one remedy does not affect the town's ability to use alternative remedies.

D. In no event will the town collect the citation fine(s) and recoverable costs more than once.

(Ord. No. 249, § 1, 9-10-2014)

Any person aggrieved by a decision of the town council may obtain review of the administrative decision by filing (1) an appeal with the Contra Costa County Superior Court in accordance with Government Code Section 53069.4; or (2) a petition of writ of mandate in accordance with Code of Civil Procedure Sections 1094.5 and 1094.6.

(Ord. No. 249, § 1, 9-10-2014)

Except as specifically provided in this chapter, all notices to be given by this chapter shall be served on the responsible person in accordance with the provisions of Section 1.28.030. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted herein.

(Ord. No. 249, § 1, 9-10-2014)