Port Hueneme Municipal Code § 3427.160 Recovery of response costs—Liens

This Chapter is adopted pursuant to the City's police powers for the purpose of prohibiting and deterring unruly events that constitute a public nuisance and, accordingly, threaten public health, safety, and welfare. Persons who actively or passively aid, allow, or tolerate such nuisances will be held strictly liable for the City's abatement costs. It is in the public interest to require persons responsible for such nuisances to pay the costs of special public services rather than to burden the general public.

(Ord. 677 § 2 (part), 2007)

Unless the contrary is stated or clearly appears from the context, the following definitions govern the construction of the words and phrases used in this chapter.

A. "Alcohol" has the same meaning as set forth in Business and Professions Code Section 23003.

B. "Alcoholic beverage" has the same meaning as set forth in Business and Professions Code Section 23004.

C. "Cannabis" has the same meaning as set forth in Business and Professions Code Section 26001 and includes cannabis concentrates as defined in Business and Professions Code Section 26001(h).

D. "Controlled substance" means any drug, substance, or immediate precursor, as listed in the Uniform Controlled Substances Act (Health and Safety Code Section 1100 et seq.).

E. "Illegal drug activity" means a violation of any of the provisions of Chapter 6 (commencing with Section 11350) or Chapter 6.5 (commencing with Section 11400) of the Health and Safety Code, and any successor statute or regulation.

F. "Minor" means any person under the age of eighteen (18).

G. "Premises" means any unimproved or improved real property, including, without limitation, business establishments, dwelling units, rental units, garage facilities, streets, alleyways, stairwells, elevators, and, as the context permits or requires, any public or private property, which abuts any of these areas.

H. "Rental unit" includes:

1. Any dwelling unit as defined by this Code, including, without limitation, any single and multi-family residence, duplex, condominium, or accessory dwelling unit located within the City;

2. Any hotel or motel room;

3. Any assembly hall or banquet facility;

4. Any mobile home, whether rent is paid for the mobile home, the land upon which the mobile home is located, or both; and

5. Any recreational vehicle, as defined in Civil Code Section 799.29, if located in a mobile home park or recreational vehicle park, whether rent is paid for the recreational vehicle, the land upon which it is located, or both.

I. "Response costs" means the costs associated with responses by law enforcement, fire, ambulance, emergency services, and other public services (for example, and without limitation, public works or building safety) to unruly gatherings, including, without limitation:

1. Salaries and benefits of personnel for the amount of time spent responding to, remaining at, or otherwise addressing unruly gatherings, including, but not limited to administrative costs attributable to such response(s);

2. The costs of any medical treatment given to or for any personnel who are or were injured responding to, remaining at, or leaving an unruly gathering;

3. The costs of repairing any City equipment or property damage, and the costs using any such equipment in responding to, remaining at, or leaving an unruly gathering; and

4. Any other costs recoverable in accordance with Civil Code Section 1714.9.

J. "Responsible person" means any person owning, leasing, maintaining, or otherwise controlling a premises, including, without limitation, the agent or representative of a person with possessory interest in a premises who organizes, permits (actively or passively), supervises, officiates, conducts, or controls the activities that constitute an unruly gathering.

K. "Unruly gathering" means any activity involving two (2) or more persons on a premises, which includes any of the following and interferes with the comfortable enjoyment of life, public or private property, or public safety:

1. Violations of this Code with regard to noise;

2. Interference with the normal flow of pedestrian or vehicle traffic in violation of this Code or other applicable law;

3. Curfew violations of this Code by minors;

4. Consumption of alcohol and/or alcoholic beverages in violation of this Code or other applicable law, including, without limitation, consumption of alcoholic beverages by minors or individuals younger than twenty-one (21) years;

5. Consumption of cannabis in violation of this Code or other applicable law, including, without limitation, consumption of cannabis by minors or individuals younger than twenty-one (21) years; or

6. Illegal drug activity or use of controlled substances in violation of any applicable law.

(Ord. 677 § 2 (part), 2007)

(Ord. No. 753, § 2, 4-2-19)

It is unlawful for a responsible person to cause, knowingly permit, or by insufficient control to allow any premises under the responsible person's control to be used or maintained for an unruly gathering after the person is aware of or has been made aware of the unruly gathering and has made no reasonable attempt to cease the activities that constitute an unruly gathering.

(Ord. 677 § 2 (part), 2007)

The Police Chief will administer this Chapter under the direction of the City Manager. The City Manager may promulgate such administrative procedures as may be necessary to implement the provisions of this Chapter.

(Ord. 677 § 2 (part), 2007)

Utilization of any public employee during any response to unruly gatherings after the first warning, where responding police officers determine there is a violation of this Chapter, is a public service over and above the services generally provided within the City's jurisdiction and, accordingly, constitutes a special public service.

(Ord. 677 § 2 (part), 2007)

(a) When police officers respond to unruly gatherings, the police officers can, but are not required to, issue written notice to the responsible person stating as follows:

(1) If police officers are required to return to the same premises within the following twelve (12) hour period in response to a complaint; or

(2) If police officers are required to return to the same premises hosting a unruly gatherings a total of three (3) times or more within a six (6) month period in response to a complaint; and

(3) The responding police officers determine there is a violation of this Chapter; then

(4) Such additional responses by police officers, or other public employees, will constitute response costs the cost of which must be paid by the responsible person. Any such costs will become the responsible person's personal obligation and be a debt to the City.

(b) Notices issued pursuant to this section must be signed by the responsible person which acknowledges receipt of the warning. A signed copy may be left with the responsible person. If a second or subsequent response is required, police officers must have a responsible person sign a response cost invoice acknowledging the special public services and additional invoices for any further responses.

(Ord. 677 § 2 (part), 2007)

If no responsible person is available on the premises when the police are present, or the responsible person refuses to sign receipt of the notice, a copy of the notice must be posted in a conspicuous place on the premises on each occasion the police respond.

(Ord. 677 § 2 (part), 2007)

(a) The Police Chief must provide a written response cost invoice to the responsible person by certified mail. The response cost invoice must state the following:

(1) The identification of the responsible person;

(2) The address of the premises;

(3) The factual circumstances constituting the unruly gathering;

(4) The date(s) and time(s) that special public services were provided; and

(5) A copy of the warning notice(s) provided to the responsible person.

(b) The response cost invoice must also state that the responsible person may file a written appeal of the determination within ten (10) days after receiving the notice and describe the procedure required for such an appeal.

(Ord. 677 § 2 (part), 2007)

(a) All fees and charges levied for response costs are due and payable upon presentation.

(b) All response costs constitute a valid debt to the City and against the responsible person or, if the responsible person is a minor, the responsible person's parents and guardians.

(c) If a responsible person does not timely appeal the response cost invoice in accordance with this Chapter, and if any amount remains unpaid after reasonable and practical attempts have been made by the City to obtain payment, the City Manager, or designee, is authorized to take all legal and practicable collection efforts to recover the outstanding debt, together with any penalties, any related charges and fees accrued due to nonpayment.

(d) The City Attorney is authorized to file an action on the City's behalf for injunctive relief, or other appropriate civil action, to require the responsible person to comply with this Chapter.

(e) Fees and charges to be levied for recovering City costs for notification and collection of delinquent accounts will be established by City Council resolution. Such fees and charges are part of the response costs.

(f) A court rendering a judgment pursuant to this section may, in addition to any other order provided by law, require the payment of reasonable attorney's fees, and costs of investigation, discovery and court costs.

(Ord. 677 § 2 (part), 2007)

Responsible persons served with a response cost invoice in accordance with this Chapter may appeal the response cost invoice to the City Manager, provided:

(a) A request for review must be commenced within ten (10) days from the date on which the response cost invoice is served on the responsible person. If an appeals request is untimely, the City Manager may, nevertheless, extend the time for commencing such review for good cause shown.

(b) A request for appeal must be on a form provided by the City and contain the following information:

(1) The name, address and telephone number of the person making the request;

(2) A copy of the response cost invoice or, if that document is unavailable, the approximate date, time, address, and amount of response costs;

(3) A brief description of all grounds for making the request;

(4) Whether an administrative hearing is requested;

(5) Be accompanied by an advance deposit of the response costs or a request for a hardship waiver; and

(6) Such other information as the City may require.

(c) Upon receiving an appeal, the City Manager must appoint an independent Hearing Officer to review the request.

(d) If a responsible person requests a hearing, the City Clerk will schedule a hearing on a date not less than fifteen (15) nor more than sixty (60) days from the date the hearing is requested. Written notice of the date, time and location of the administrative hearing must be provided to the responsible person at least fifteen (15) days before the hearing date.

(Ord. 677 § 2 (part), 2007)

(a) Responsible persons financially unable to make an advance deposit of the response costs, may file for a hardship waiver. The request for a hardship waiver must be filed with the City Clerk's office on a form containing information that may be required by the City Clerk. The City Clerk will review the request and determine whether a waiver is justified. A waiver may only be approved if the request for waiver is accompanied by a sworn affidavit, together with any supporting documents or materials, demonstrating the responsible person's actual financial inability to deposit the full amount of the fine.

(b) The City Clerk will inform the responsible person in writing regarding whether the City Clerk approved the waiver. This determination must be served upon the responsible person by mail at the address provided in the waiver application. The City Clerk's determination is final.

(c) Should the Clerk determine that a waiver is unjustified, the responsible person must deposit the response cost amount with the City not later than ten (10) days after the date of that decision. Failure to make a deposit within ten (10) days after waiver denial is deemed a waiver of the responsible person's right to an administrative appeal and the response costs will be deemed delinquent.

(Ord. 677 § 2 (part), 2007)

(a) Waiver of Personal Appearance at Hearing. In lieu of personally appearing at an administrative hearing, the responsible person may request that the Hearing Officer decide the matter based on the written appeal and any other documentary evidence submitted by the responsible person or Police Chief, or designee, before the hearing date.

(b) Failure to Appear at Hearing. Failure of a responsible person to appear at the hearing is deemed a waiver of the right to be personally present at the hearing. The Hearing Officer must then decide the matter based upon the written appeal, the response cost invoice, any documentary evidence previously submitted, and any additional evidence that may be presented at the hearing by the Police Chief or designee.

(c) Continuation of Hearings. The Hearing Officer may continue any hearing and request additional information from the Police Chief, or designee, or responsible person before issuing a written decision.

(Ord. 677 § 2 (part), 2007)

(a) Within ten (10) days of receiving the appeal or, if a hearing is requested, after a hearing, the Hearing Officer must provide the responsible person with a written notification that:

(1) The response cost invoice is affirmed;

(2) The response cost invoice is modified; or

(3) The response cost invoice is vacated.

(b) The Hearing Officer's decision is a final determination. There is no right of City Council appeal.

(Ord. 677 § 2 (part), 2007)

(a) A responsible person may appeal the Hearing Officer's decision by filing an appeal with the Superior Court pursuant to Government Code Section 53069.4, or any successor statute, within twenty (20) days from service of the Hearing Officer's decision.

(b) Should the responsible person file a timely appeal with the Superior Court, the requirement to pay the response costs is suspended and the payment of the response costs, if any, will be in accordance with the Superior Court decision.

(Ord. 677 § 2 (part), 2007)

(a) Should the Hearing Officer uphold the response cost invoice, then the City can retain the deposited response costs.

(b) Should the Hearing Officer vacate the response cost invoice, then the City must promptly refund the amount of the deposited amount, if any.

(c) Should the Hearing Officer uphold the response cost invoice and a hardship waiver was previously granted, the due date for paying the response costs will be thirty (30) days from the date of the notice of the Hearing Officer's decision.

(Ord. 677 § 2 (part), 2007)

In addition to any other legal remedy, the City may place a lien on property owned by the responsible person in an amount equal to the sum of the response costs delinquent for more than (90) days, plus penalties and interest. If multiple responsible persons exist, they will be jointly and severally liable for any payments so ordered.

(Ord. 677 § 2 (part), 2007)

(a) The City Manager, or designee, may initiate proceedings to record a lien conforming with this Article if the decision is not appealed.

(b) Before recording the lien, the City Manager, or designee, must submit a report to the City Clerk stating the amounts due and owing.

(c) The City Clerk will fix a time, date, and place for the City Council to consider the report and any protests or objections to it.

(d) The City Clerk must serve the responsible person with a hearing notice not less than ten (10) days before the hearing date. The notice must set forth the amount of the delinquent administrative fine, and any penalties and interest that is due. Notice must be delivered first-class mail, postage prepaid, addressed to each responsible person's address as it appears on the last equalized assessment roll or supplemental roll of the County of Ventura, whichever is more current. Service by mail is effective on the date of mailing and failure of responsible person to actually receive notice does not affect its validity.

(e) At the conclusion of the hearing, the City Council will adopt a resolution confirming, discharging, or modifying the lien amount.

(Ord. 677 § 2 (part), 2007)

Within thirty (30) days following the City Council's adoption of a resolution imposing a lien, the City Clerk will file same as a judgment lien in the Ventura County Recorder's Office.

(Ord. 677 § 2 (part), 2007)

Each responsible person against whose property an assessment is levied pursuant to this Chapter will also be assessed an administrative fee in an amount established by City Council resolution based on the costs incurred in levying the assessment. The administrative fee will be included in the lien amount approved by the City Council and recorded against the responsible person's property.

(Ord. 677 § 2 (part), 2007)

Once the City receives full payment for outstanding principal, penalties, and costs, the City Clerk will either record a notice of satisfaction or provide the responsible person with a notice of satisfaction for recordation at the Ventura County Recorder's Office. This notice of satisfaction will cancel the City's lien.

(Ord. 677 § 2 (part), 2007)

(a) Violations of this Chapter may be enforced as follows:

(1) Prosecution as infractions or misdemeanors at the City Attorney's discretion. For three (3) or more violations at the same premises occurring within any twelve (12) consecutive month period, a violation of this Chapter is deemed to be a misdemeanor.

(2) Abated as a Public Nuisance. Because unruly gatherings constitute an immediate threat to public health, safety, and welfare, the procedures for emergency abatement may be used as provided by this Code and can include, without limitation, an order requiring dispersal of the unruly gathering.

(b) The remedies provided by this Chapter are cumulative and in addition to any other criminal or civil remedies including, without limitation, those set forth elsewhere in this Chapter.

(Ord. 677 § 2 (part), 2007)