Palo Alto Municipal Code Ch. 1.16 Administrative Compliance Orders

Sections:

* Editor's Note: Prior Ordinance History: Section 2 of Ord. 4452 was previously codified herein, and was not specifically repealed by adoption of Ord. 4572. This chapter was formerly entitled "Administrative Penalties - Continuing Violations - Compliance Orders."

(a) This chapter provides for administrative remedies which are in addition to all other civil legal remedies or which are an alternative to any criminal legal remedies which may be pursued by the city to address any violation of Title 4, Title 5, Title 6, Title 8, Title 9, Title 12, Title 15, Title 16, Title 17, Title 18, or Title 22 of this code.

(b) Use of the remedies and procedures of this chapter shall be at the sole discretion of the enforcement officials authorized to proceed under this chapter.

(Ord. 4572 § 3 (part), 1999)

For purposes of this chapter, "enforcement official" means the principal supervisor for any city department or division which is charged with responsibility for enforcement of any provision of this code. An act authorized in this chapter to be conducted by an enforcement official may be delegated by the enforcement official to a subordinate employee or to any other person retained for that purpose.

(Ord. 4572 § 3 (part), 1999)

(a) Whenever an enforcement official determines that a violation exists regarding any provision of this code to which this chapter is applicable and for which the enforcement official is responsible for enforcement, the enforcement official 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 section of this code violated and a description of the violation;

(3) The action required to correct the violation;

(4) The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved, and the amount of penalties that will begin to accrue; in the case of continuing violations which pertain to building, plumbing, electrical, or similar structural or zoning matters that do not create an immediate danger to health or safety, the time period after which administrative penalties will begin to accrue shall not be less than five business days;

(5) Either a copy of this chapter or an explanation of the consequences of noncompliance with the compliance order and a description of the hearing procedure and appeal process for contesting the compliance order.

(Ord. 4572 § 3 (part), 1999)

(a) All compliance orders and notices required by this chapter to be served may be served either by personal delivery or by certified mail, postage prepaid, return receipt requested, and shall be deemed effective on the date when the certified mail is either delivered or delivery is attempted. If the certified mail receipt is returned unsigned, then service may instead be effected by regular first class mail, postage prepaid, provided that the notice sent by regular mail is not returned by the postal service as undeliverable; service by regular mail shall be deemed effective on the date three days following deposit in the mail.

(b) Where a violation of code provisions respecting the condition of real property is involved, service by certified mail of a compliance order or subsequent written notices authorized by this chapter may be effected at the address as shown on the last equalized county assessment roll.

(c) Where a violation of code provisions respecting the condition of real property is involved and personal delivery or service by mail upon the property owner is unsuccessful, service may be effected alternately or additionally by posting a copy of the order at a conspicuous location on the property which is the subject of the order.

(d) Where service of any notice required under this chapter is effected in compliance with the requirements of this section and with due process, the asserted failure of any person to receive the notice shall not affect the validity of any proceedings taken under this chapter.

(Ord. 4745 §5, 2002: Ord. 4572 § 3 (part), 1999)

(a) If the enforcement official determines that all violations have been corrected within the time specified in the compliance order or within any amended orders, the enforcement official shall so advise each party to whom the compliance order was addressed.

(b) If full compliance is not achieved within the time specified in the compliance order or within any amended orders, the enforcement official shall schedule a hearing before the enforcement official or a delegate.

(Ord. 4572 § 3 (part), 1999)

(a) Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted.

(b) Each hearing shall be set for a date not less than fifteen days nor more than sixty days from the date of service of the notice of hearing unless the hearing officer determines that the matter is urgent or that good cause exists for an extension of time. The party subject to the compliance order may request one continuance for any reason, provided that the deferred hearing shall be conducted within ninety days after the date originally scheduled for hearing; if the hearing officer determines that compliance is urgently required to protect the public peace, health, safety, or welfare, however, the hearing officer may deny the extension of time.

(c) Written notice of hearing shall be served on any person to whom the compliance order was addressed.

(d) The hearing serves to provide the full opportunity of 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 and/or that the person was not responsible for the violation. The failure of any person subject to a compliance order to appear a the hearing or in the alternative to present evidence for consideration at the hearing shall constitute a failure to exhaust administrative remedies that may bar judicial review.

(Ord. 4572 § 3 (part), 1999)

(a) At the place and time set forth in the notice of hearing, the hearing officer shall conduct a hearing on the compliance order. At the hearing, the party subject to the compliance order shall be given the opportunity to testify and to present evidence and cross-examine witnesses concerning the administrative citation. That contestant may appear personally or through an attorney. Prehearing discovery is not authorized, but subpoena of witnesses and documents shall be permitted as authorized by law. The hearing officer may conduct the hearing informally, both as to rules of procedure and admission of evidence, in any manner which will provide a fair hearing.

(b) The hearing officer shall consider any written or oral evidence consistent with ascertainment of the facts regarding the violation and compliance with the order.

(c) Within a reasonable time following the conclusion of the hearing, the hearing officer shall make findings and issue a decision regarding:

(1) The existence of the violation;

(2) The extent of compliance with the order.

(d) The hearing officer shall issue written findings on each violation. The findings shall be supported by evidence received at the hearing.

(e) If the hearing officer finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the compliance order, the hearing officer shall issue an administrative order.

(f) If the hearing officer finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the hearing officer shall issue a finding of those facts.

(Ord. 4572 § 3 (part), 1999)

(a) If the hearing officer determines that a violation occurred which was not corrected within the time period specified in the compliance order, the hearing officer shall issue an administrative order which imposes any or all of the following:

(1) An order to correct code violations, including a schedule for correction if appropriate;

(2) Administrative penalties as provided in this chapter;

(3) Administrative costs as provided in this chapter.

(b) The administrative order of the hearing officer is final at the time it is made; however, the hearing officer shall maintain continuing jurisdiction and shall have the power to modify the administrative order, after providing the person subject to the administrative order with notice and an opportunity to be heard, until full compliance is achieved.

(c) The employment, performance evaluation, compensation, and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount of administrative penalties upheld by the hearing officer.

(Ord. 4745 § 6, 2002: Ord. 4572 § 3 (part), 1999)

(a) The hearing officer may impose administrative penalties for each day during which a violation is maintained after the date when compliance was ordered to be achieved, in an amount not to exceed the maximum provided in the schedule of administrative penalties adopted by council resolution effective on the date when the violation occurred.

(b) In determining the amount of the administrative penalty, the hearing officer 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 violation on the community;

(6) Such other factors as justice may require.

(c) Administrative penalties imposed by the hearing officer 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 enforcement official.

(d) The enforcement official 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.

(e) Administrative penalties assessed by the hearing officer shall be due by the date specified in the administrative order.

(f) Administrative penalties assessed by the hearing officer are a debt owed to the city and in addition to all other means of enforcement, if the violation concerns the condition of real property, may be enforced by means of a lien against the real property on which the violation occurred. Failure to pay administrative penalties within the time allowed under this chapter shall constitute a violation of this code punishable as a misdemeanor.

(g) If the violation is not corrected as specified in the administrative order, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in the schedule of administrative penalties.

(h) If the violator gives written notice to the enforcement official that the violation has been corrected and if the enforcement official finds that compliance has been achieved, the enforcement official shall deem the date of the final inspection to be the date on which the enforcement official finds that the violation was corrected.

(Ord. 4572 § 3 (part), 1999)

(a) The enforcement official may assess administrative costs against the violator when the enforcement official 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 enforcement official, 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. Failure to pay administrative costs within the time allowed under this chapter shall constitute a violation of this code punishable as a misdemeanor and shall further be subject to collection and late charges as otherwise provided for administrative penalties herein.

(Ord. 4572 § 3 (part), 1999)

Failure to pay the assessed administrative penalties and/or administrative costs specified in an administrative order may be enforced as:

(1) A personal obligation of the violator; and/or,

(2) If the violation is in connection with real property, a lien upon the real property which shall remain in effect until all of the administrative penalties, interest, and administrative costs are paid in full; and/or,

(3) A criminal misdemeanor.

(Ord. 4572 § 3 (part), 1999)

Any person subject to an administrative order issued pursuant to this chapter may obtain review of the administrative order in the appropriate court pursuant to the provisions of California Government Code Section 53069.4 by filing with the court a notice of appeal. The administrative order shall provide notice of this right of judicial review and the time allowed therefor by law.

(Ord. 4572 § 3 (part), 1999)

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

(Ord. 4572 § 3 (part), 1999)

If the enforcement official determines that compliance has been achieved after a compliance order has been issued by the enforcement official following hearing, the enforcement official shall give notice to each party to whom the compliance order was addressed indicating that compliance has been achieved.

(Ord. 4572 § 3 (part), 1999)

(a) If the enforcement official does not file a report of compliance, a violator who contends that compliance with an administrative order has been achieved may request a compliance hearing before the city manager or designee by filing a request for a hearing with the enforcement official issuing the administrative compliance order.

(b) The compliance hearing shall be noticed and conducted in the same manner as a hearing on a compliance order provided in Sections 1.12.060 and 1.12.080 through 1.12.100 of this chapter.

(c) The city manager or designee shall determine if compliance has been achieved and, if so, when it was achieved. The decision of the city manager or designee shall be final, subject only to judicial review as provided by law. The decision shall provide notice of the right of judicial review and the time allowed therefor by law.

(Ord. 4572 § 3 (part), 1999)

(a) Whenever the amount of any administrative penalty and/or administrative cost imposed pursuant to this chapter in connection with real property has not been satisfied in full within ninety days, unless tolled by a timely request for judicial review pursuant to California Government Code Section 53069.4 or reversed by court order, this obligation may constitute a lien against any real property involved where any violation was determined to concern the condition of that real property.

(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 Sections 697.340 of the California Code of Civil Procedure and may be extended as provided in Sections 683.110 through 683.220 of the California 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 administrative services 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 the city council.

(f) The director of administrative services shall cause written notice to be served on each property owner whose interest is disclosed by the current county equalized assessment roll not less than ten days prior to the time set for the hearing.

(Ord. 4572 § 3 (part), 1999)

(a) Any person owning a legal or equitable interest in real property proposed to be subject to a lien pursuant to this chapter may file a written protest with the city clerk and/or may protest orally at the city council hearing.

(b) Each written protest or objection must contain a description of the property in which the protesting party has a legal or equitable interest and the grounds of such protest or objection. The grounds for protest or objection, and any evidence or testimony submitted in support or in opposition to the imposition of a lien, shall be confined to whether the amount of any administrative penalty and/or administrative cost imposed was satisfied in full within the time allowed by law and/or was successfully challenged by a timely writ of mandate.

(c) The city council, after the hearing, shall adopt a resolution confirming, discharging, or modifying the amount of the lien based upon evidence produced at the hearing.

(Ord. 4572 § 3 (part), 1999)

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

(Ord. 4572 § 3 (part), 1999)

Once payment in full is received by the city for outstanding penalties and costs, the director of administrative services shall either record a notice of satisfaction or provide any property owner or financial institution having a legal or equitable interest in the property 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. 4572 § 3 (part), 1999)