National City Municipal Code Ch. 1.48 Administrative Remedies

A. This chapter provides for administrative remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this code.

B. Use of this chapter shall be at the sole discretion of the city.

(Ord. 2122 (part), 1996)

For purposes of this chapter, "director" means the head of any city department or his/her designee, who is charged with responsibility for enforcement of any provision of this code. A director has the authority to record notices of violation against real property on which violations are determined to exist.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. Whenever the director determines that a violation of any provision of this code within the director's responsibility is occurring or exists, the director may issue a written compliance order to any person responsible for the violation.

B. A compliance order issued pursuant to this chapter shall contain the following information:

1. The date and location of the violation;

2. The identity of the responsible party, if known or available;

3. The section of this code violated and a description of the violation;

4. The actions required to correct the violation;

5. That a notice of violation may be recorded in the real property records of the county of San Diego if compliance with the order is not achieved;

6. The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;

7. A statement that the failure to appeal or request a hearing within the times prescribed constitutes a waiver of the right to a hearing and renders the notice of compliance a final order;

8. Either a copy of this chapter or an explanation of the consequences of noncompliance with this chapter and a description of the hearing procedure and appeal process.

C. The compliance order need not be signed by the person responsible for the violation.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. The compliance order and all notices required to be given under this chapter shall be served by any of the following methods:

1. Personal service; or

2. Certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be signed and sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned; or

3. Posting the notice conspicuously on or in front of the property.

B. Service by certified and regular mail in the manner described above shall be effective on the date of mailing if directed to the responsible person's address as indicated on the current assessment roll of the San Diego County assessor.

C. Failure of a responsible party to actually receive notice made in conformity with this Section 1.48.040 shall not affect the validity of the notice or proceedings.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

In any case where a compliance order is issued by the planning director, and a hearing is to be held on such compliance order, the hearing shall be held and a decision rendered by the planning commission; in any case where a compliance order is issued by the fire chief, the director of building and safety, the city engineer or the director of public works, and a hearing is to be held on such compliance order, the hearing shall be held and a decision rendered by the advisory and appeals board. For the purposes of this chapter, the term "review board" refers to either the planning commission or the advisory and appeals board, as appropriate. In any case where a hearing is held before the review board pursuant to this chapter, the director of the city department which issues the compliance order shall serve as the secretary of the review board. If the review board cannot meet within the prescribed time, then the city council shall act as the review board, in which case the decision shall be final and constitute the exhaustion of administrative remedy.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. If the director determines that all violations have been corrected within the time specified in the compliance order, no further action shall be taken.

B. If full compliance is not achieved within the time specified in the compliance order, the director shall advise the secretary to the review board to set a hearing before the board.

(Ord. 2122 (part), 1996)

A. The secretary to the review board shall cause a written notice of hearing to be served on the person responsible for the violation, and, where real property is involved, a notice of hearing shall be served on the property owner at the address as it appears on the last equalized county assessment roll available on the date the notice is prepared.

B. Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted by the review board.

C. Each hearing shall be set for a date not less than fifteen days nor more than forty-five days from the date of service of the notice of hearing unless the director determines that the matter is urgent or that good cause exists for an extension of time.

D. The purpose of the hearing is to provide the full opportunity for a person subject to a compliance order to object to the determination that a violation has occurred and/or that the violation has continued to exist, or that the person served with the compliance order is the person responsible for the violation. The failure of any person subject to a compliance order, pursuant to this chapter, to appear at the hearing shall constitute a failure to exhaust administrative remedies.

(Ord. 2122 (part), 1996)

A. At the place and time set forth in the notice of hearing, the review board shall conduct a hearing on the compliance order issued pursuant to Section 1.48.030.

B. At said hearing, after the director and any representatives of the city have presented evidence pertaining to the compliance order, the person responsible for the violation, the property owner, and any interested person may present evidence on the issue.

(Ord. 2122 (part), 1996)

A. Within a reasonable time after all evidence is received and the hearing is concluded, the review board shall render a decision, which shall be set forth in a written administrative order.

B. The administrative order shall contain findings on the following issues with respect to each violation:

1. The existence of the violation;

2. The failure of the person responsible for the violation to take corrective action within the required time period set forth in the compliance order.

C. The finding of the review board shall be supported by evidence received at the hearing.

D. If the review board finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the administrative order shall contain a finding of those facts.

E. If the review board finds that a violation has occurred, that the violation was not corrected within the time period specified in the compliance order, and that the person responsible for the violation was named in the compliance order, the administrative order shall contain a finding of those facts, and shall impose any or all of the following:

1. An order to correct and to record notice of violation with the county recorder, if appropriate, including a schedule for correction where appropriate;

2. Administrative penalties as provided in Section 1.48.100;

3. Administrative costs as provided in Section 1.48.110.

F. The administrative order shall be served upon the person responsible for the violation pursuant to the procedures set forth in Section 1.48.040.

(Ord. 2140 § 4 (part), 1998; Ord. 2122 (part), 1996)

A. In any case where violation of this code would otherwise constitute a misdemeanor, the review board may impose administrative penalties for such violation in an amount not to exceed a maximum of one thousand dollars per day for each ongoing violation, except that the total administrative penalty shall not exceed one hundred thousand dollars exclusive of administrative costs, interest and restitution for compliance reinspections, for any related series of violations.

B. In any case where violation of this code would otherwise constitute an infraction, the review board may impose administrative penalties for such violation as follows:

1. One hundred dollars for a first violation;

2. Two hundred dollars for a second violation within the same year; and

3. Five hundred dollars for each additional violation in the same year.

C. In determining the amount of the administrative penalty, the board may take any or all of the following factors into consideration:

1. The duration of the violation;

2. The frequency, recurrence and number of violations, related or unrelated, by the same violator;

3. The seriousness of the violation;

4. The good faith efforts of the violator to come into compliance;

5. The economic impact of the penalty on the violator;

6. The impact of the violation on the community;

7. Such other factors as justice may require.

D. Administrative penalties imposed by the appeals board shall accrue from the date specified in the compliance order and shall cease to accrue on the date the violation is corrected as determined by the Director or the review board.

E. The review board, in its discretion, may suspend the imposition of applicable penalties for any period of time during which:

1. The violator has filed for necessary permits; and

2. Such permits are required to achieve compliance; and

3. Such permit applications are actively pending before the city, state or other appropriate governmental agency.

F. Administrative penalties assessed by the review board are due by the date specified in the administrative order.

G. Administrative penalties assessed by the review board are a debt owed to the city and, in addition to all other means of enforcement, if the violation is located on real property, may be enforced by means of a lien against the real property on which the violation occurred.

H. If the violation is not corrected as specified in the review board's order to correct, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsections A and B of this section.

I. If the violator gives written notice to the director that the violation has been corrected and if the director finds that compliance has been achieved, the director shall deem the date the written notice was postmarked or personally delivered to the director or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If no written notice is provided to the director, the violation will be deemed corrected on the date of the final inspection.

J. The director will record a notice of correction with the county recorder when the violation has been corrected, and will record a release of lien when satisfied.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. The review board shall assess administrative costs against the violator when it finds that a violation has occurred and that compliance has not been achieved within the time specified in the compliance order.

B. The administrative costs may include any and all costs incurred by the city in connection with the matter before the review board including but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all reinspections necessary to enforce the compliance order.

(Ord. 2122 (part), 1996)

Failure to pay the assessed administrative penalties and administrative costs specified in the Administrative order of the review board may be enforced as:

A. A personal obligation of the violator; and/or

B. If the violation is in connection with real property, a lien upon the real property. The lien shall remain in effect until all of the administrative penalties, interest and administrative costs are paid in full.

(Ord. 2122 (part), 1996)

The administrative order is final, unless appealed. Any person aggrieved by an administrative order of the review board may obtain judicial review of the administrative order by filing an appeal within the timelines and provisions set forth in California Government Code Section 53069.4.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

The city may collect the assessed administrative civil penalties and administrative costs by use of all available legal means, including recordation of a lien pursuant to Section 1.48.170.

(Ord. 2122 (part), 1996)

If the director determines that compliance has been achieved after a compliance order has been sustained by the review board, the director shall file a report indicating that compliance has been achieved, and shall record a notice of compliance in the real property records if the notice of violation was recorded.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. If the director does not or refuses to file a report pursuant to Section 1.48.150 above, a violator who believes that compliance has been achieved may request a compliance hearing with the secretary to the board.

B. The hearing shall be noticed and conducted in the same manner as a hearing on a compliance order provided in Section 1.48.050 through 1.48.090 of this chapter, except that no fees shall be required.

C. The review board shall determine if compliance has been achieved and, if so, when it was achieved.

(Ord. 2140 § 4 (part), 1998: Ord. 2122 (part), 1996)

A. Whenever the amount of any administrative penalty and/or administrative cost imposed by the review board pursuant to this chapter in connection with real property has not been satisfied in full within ninety days of service of the administrative order, and/or has not been successfully challenged by a timely appeal to the municipal court, this obligation may constitute a lien against the real property on which the violation occurred.

B. The lien provided herein shall have no force and effect until recorded with the county recorder. Once recorded, the administrative order shall have the force and effect and priority of a judgment lien governed by the provisions of Section 697.340 of the Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure.

C. Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law.

D. Prior to recording any such lien, the director of finance shall prepare and file with the city clerk a report stating the amounts due and owing.

E. The city clerk shall fix a time, date and place for hearing such report and any protests or objections thereto by city council.

F. The director of finance shall cause written notice to be served on the property owner not less than ten days prior to the time set for the hearing. Such notice shall be served as provided in Section 1.48.040.

A. Any person whose real property is subject to a lien pursuant to Section 1.48.170 may file a written protest with the city clerk and/or may protest orally at the city council meeting.

B. Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection.

C. The city council, after the hearing, shall adopt a resolution confirming, discharging or modifying the amount of the lien.

(Ord. 2122 (part), 1996)

Thirty days following the adoption of a resolution by the city council imposing a lien, the city clerk shall file the same as a judgment lien in the office of the county recorder of San Diego County. The lien may carry such additional administrative charges as set forth by resolution of the city council.

(Ord. 2122 (part), 1996)

Once payment in full is received by the city for outstanding penalties and costs, the director of finance shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the office of the county recorder. Such notice of satisfaction shall cancel the city's lien.

(Ord. 2122 (part), 1996)