National City Municipal Code Ch. 1.42 Administrative Hearing Procedure and Process

These procedures may be used to supplement or substitute for any administrative hearing or hearing procedure prescribed elsewhere in this code, except those required under Title 18 for land use hearings and appeals. The requirements and procedures of this chapter are applicable to administrative procedures and hearings regarding the denial, modification, suspension or revocation of a permit, license or entitlement. The procedures under this chapter may be used to substitute for administrative hearing procedures that are prescribed for the abatement of a public nuisance, the imposition of an administrative fine or penalty, or an administrative appeals procedure. Except for proceedings under Title 18, this authority includes, but is not limited to, the procedures as set forth in Chapters 1.36, 1.41, 1.44, 1.48, 6.04, 7.32, 8.16, 10.70 or Title 15. The procedures of this chapter shall not displace any requirement in those chapters regarding the deposit of any fine or penalty prescribed as a precondition of the administrative review process.

(Ord. 2242 § 3 (part), 2004)

A. Notice pursuant to Section 1.42.030 shall be served upon any responsible party or any party whose permit, license or entitlement has been denied or is to be suspended or revoked, or against whom nuisance abatement action, administrative citation or administrative penalty action is proposed. The party shall be allowed ten calendar days after notification to request an administrative hearing to appeal or contest the proposed action before it will become final. Unless waived by the city manager, the deposit of any fines or penalties is required. The proposed action or order by the city manager, department director or designate becomes final and conclusive if not appealed or contested within that time.

B. Except for actions affecting immediate fire and life safety concerns, the proposed action or order shall be stayed only for the duration of any time allotted for requesting an appeal, and, if appealed, shall be stayed until the review by the city manager of a decision by a hearing examiner pursuant to Section 1.42.020(F). Conditions affecting immediate fire and life safety may be summarily abated by city or contract forces, but only to the extent that the action taken is limited to removing only that condition or portion thereof that affects or constitutes an immediate fire or life safety concern. Other aspects of the nuisance condition that are not of an immediate concern shall be subject to due course abatement process.

C. Upon the filing of a request for a hearing or appeal, a hearing examiner shall be chosen by the parties, who shall be neutral and unbiased as to the matter in contention. Experience in the subject area is preferred but not a prerequisite. The city shall maintain a panel of candidates available to serve as hearing examiners for the administrative hearings. The enforcement officer or other designated city representative and the aggrieved party shall select a hearing examiner from the list by alternatively striking names from the panel list, beginning with the aggrieved party. The city and the aggrieved party may share the cost of the hearing examiner, or if the aggrieved party chooses, the city will pay the full cost of the hearing examiner if requested by the aggrieved party in writing prior to the hearing.

The hearing should occur not later than sixty days from the time of the request for administrative hearing filed by the aggrieved party, unless waived by the city and the aggrieved party.

D. The hearing examiner shall notify the appellant of the time and place for the hearing in accordance with Section 1.42.030, allowing a minimum of ten calendar days before the hearing is to be held.

E. The hearing examiner shall conduct the administrative hearing in accordance with Section 1.42.040. Written findings affirming or denying the action appealed from shall be issued within fifteen calendar days after the conclusion of the hearing to all parties, unless the appeal or request for hearing is withdrawn by the requesting party. The hearing examiner may recommend conditions and deadlines for corrective action and may further recommend modification of the action below, or reduction, waiver or conditional suspension of any fines or penalties proposed, when, based upon the evidence, the hearing examiner concludes that such action is most likely to bring about compliance with the proposed order. The findings or recommendations may not contradict any provision of law or this code.

F. The hearing examiner's decision shall be based upon findings supported by substantial evidence. Substantial evidence is established when the weight of the evidence supporting the existence of a fact or event in contention has the more convincing force, when balanced against the evidence opposing the existence of the same fact or event in contention.

G. Except where a hearing examiner's findings are contrary to the evidence, law or procedure, a final order shall be issued by the city manager approving the hearing examiner's findings governing the proposed action. The city manager may disapprove or modify the examiner's findings and recommendations and issue a final order that is consistent with the evidence, law or procedure.

H. The date of mailing of the final order by the city manager to the party by first class mail, with certificate of service attached, shall constitute the date of exhaustion of administrative remedy. The final order shall advise the party that it has ninety calendar days from that date pursuant to Code of Civil Procedure Section 1094.6 to file for a writ of mandamus or other applicable judicial review in superior court, twenty calendar days pursuant to Government Code Section 53069.4 if the decision imposes an administrative penalty, fine or charge under Chapter 1.44 or 1.48, or five days following a vicious dog determination under Food and Agricultural Code Section 31622. Until a timely request for judicial review is filed, enforcement of the final order shall proceed in due course.

I. A party may request a transcript, if prepared, or be provided a copy of any tape recording of the proceedings, if made, upon payment of the costs of preparation or duplication.

(Ord. 2277 § 1, 2005; Ord. 2242 § 3 (part), 2004)

A. Except as provided in Section 1.42.030(D), any notice required to be given under this code for the enforcement of a proposed order or for hearing or appeal purposes may be served upon the responsible party by any of the following methods, and a proof of service be kept in the file:

1. Personal service; or

2. Delivery by certified mail, postage prepaid, return receipt requested. Simultaneously, a duplicate notice shall be sent by regular first class mail, postage prepaid, with return address on the outside envelope. If the notice sent by certified mail is returned unsigned, refused or marked as undeliverable, service shall be deemed effective pursuant to service of the duplicate notice sent by regular mail, provided that the duplicate notice sent by regular mail was also not returned as undeliverable. The notice shall advise the party that receipt of either notification constitutes service. Notice shall be mailed to the last address shown on the county tax assessor's records if the notice concerns real property, and to the last known address of a party to other proceedings as shown in official records of the city of National City; or

3. Posting the notice or order conspicuously on or in front of the property, together with delivery of the notice or order by first class mail, postage prepaid, to the party and a copy of the notice or order being left with any adult resident at the property.

B. Posting of a notice or service by certified mail and duplicate service by regular mail described in subsection (A)(2) or (A)(3) above shall be effective ten calendar days after mailing or posting. Personal service is effective upon service.

C. The service of an initial notice of violation need only be sent by regular mail. The above procedures are not required, but may be used when appropriate circumstances so indicate. Service of a notice of violation by regular mail is effective on the date of mailing.

D. Service of notice through which a lien will be placed upon real property by city council action will be in accordance with Code of Civil Procedure Sections 415.10, 415.20, 415.30 or 415.40 if the responsible party resides out of state.

E. Proof of service of any notice required by this code may be made by certificate or affidavit of an officer or employee of this city or by affidavit of any person over the age of eighteen years. The proof of service shall show that service was done in conformity with this code and any other provisions of law applicable to the subject matter concerned.

F. The failure of any party or person with an interest in the property or the proceeding to actually receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this chapter.

(Ord. 2242 § 3 (part), 2004)

An administrative hearing before a hearing examiner should be conducted substantially in accordance with the following procedures:

A. The hearing examiner shall control the proceedings, take witness testimony under oath or affirmation, and determine the weight and credibility of the evidence and testimony. The hearing should be conducted in a civil, prompt and businesslike manner. Disruptive behavior shall not be allowed, and an abusive or disorderly party may forfeit the right to be present during any part of the proceedings when, after appropriate warning, the behavior persists.

B. Each party shall have the following rights: to be present throughout the proceeding; to be represented by legal counsel or other representative; to call and examine witnesses; to introduce evidence; to cross-examine opposing witnesses on any matter relevant to the issues even though the matter was not covered in direct examination; to impeach a witness; and to testify in his or her own behalf. A party may be called as a witness by the other party and be examined as if under cross-examination.

C. Except as noted in this subsection, the formal rules of evidence and procedure shall not apply to the hearing. Any relevant evidence may be admissible if it is the sort of evidence upon which responsible persons are accustomed to rely in the conduct of serious affairs. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence but may not be sufficient by itself to support a finding unless it would also be admissible over objection in civil actions. Irrelevant and unduly repetitious evidence should be excluded, and collateral or irrelevant inquiry may be limited by the hearing examiner.

D. The hearing examiner may require the proponent of testimony to be offered by a witness who does not speak the English language proficiently to provide an interpreter. The hearing examiner shall determine whether the interpreter is proficient in the English language and the language in which the witness will testify. The payment of costs for an interpreter is upon the party providing the interpreter.

E. The proponent for a department director may call witnesses and may introduce into evidence an administrative record which clearly demonstrates: a) the condition(s), act(s) or omission(s) upon which the proposed action is based or which establishes the responsibility of the party for the act or event; b) the regulatory authority for the proposed action; c) technical or factual data supporting the proposed action; and d) any other information or data relevant to the proposed action. An administrative record certified by a director which meets these criteria may constitute prima facie evidence in support of the proposed action. The burden of going forward may then shift to the opposing party, who may then cross-examine on the basis of the administrative record and call witnesses appropriate to aid in its examination of the administrative record. The opposing party and the director may call any additional witnesses and introduce any additional evidence appropriate for opposition, defense, excusal or mitigation of the proposed action.

F. The hearing may be continued from time to time upon request of a party to the hearing upon a showing of good cause.

G. Failure of a responsible party or applicant to appear at a scheduled hearing shall constitute a waiver of the hearing by that party and shall result in a denial of the relief sought. That determination shall be administratively final and conclusive and shall constitute the failure to exhaust administrative remedy on the part of the responsible party or applicant.

H. Failure to follow the procedures outlined above shall not invalidate the proceedings, findings or recommendations of the hearing examiner, unless the omission constitutes a denial of administrative due process, in which case a new administrative hearing may be ordered by the city manager before another hearing examiner.

I. Appeal proceedings under Chapter 1.44 to contest an administrative citation may proceed as informally as necessary to ensure a fair hearing. The above procedures may be used to supplement the informal proceedings prescribed in that chapter.

(Ord. 2242 § 3 (part), 2004)