Rialto Municipal Code Ch. 9.42 Abatement of Nuisance Conditions in Uses of Private Property

The administrative abatement proceeding of nuisances as defined in the Red Light Abatement Law (Section 11225, et seq., Penal Code) ("Every building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, and every building or place in or upon which acts of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, are held or occur." - Section 11225 (a) Penal Code); as defined in the abatement of places where controlled substances are sold or kept (Section 11570, et seq., Health and Safety Code) ("Every building or place used for the purpose of unlawfully selling, serving, storing, keeping, manufacturing, or giving away any controlled substance, precursor, or analog specified in this division, and every building or place wherein or upon which those acts take place, is a nuisance which shall be enjoined, abated and prevented, and for which damages may be recovered, whether it is a public or private nuisance." - Section 11570 Health and Safety Code); and as defined in the Street Terrorism Enforcement and Prevention Act (Section 186.20, et seq., Penal Code). ("Every building or place, other than residential buildings in which there are three or fewer dwelling units, used by members of a criminal street gang for the purpose of the commission of the offenses (1) assault with a deadly weapon or by means of force to produce great bodily injury, as defined in Section 245, (2) robbery, as defined in Chapter 4 (commencing with Section 211) of Title 8 of Part 1, (3) unlawful homicide or manslaughter, as defined in Chapter 1 (commencing with Section 187) of Title 8 of Part 1, (4) the sale, possession for sale, transportation, manufacture, offer for sale, or offer to manufacture controlled substances as defined in Sections 11054, 11055, 11056, 11057, and 11058 of the Health and Safety Code, (5) shooting at an inhabited dwelling or occupied motor vehicle, as defined in Section 246, (6) arson, as defined in Chapter 1 (commencing with Section 450) of Title 13, and (7) the intimidation of witnesses or victims, as defined in Section 136.1, or any offense involving dangerous or deadly weapons, burglary, or rape, and every building or place, other than residential building in which there are three or fewer dwelling units, wherein or upon which that criminal conduct by gang members takes place, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance." - Sections 186.22(c) (1) through (7) and 186.22a (a) Penal Code); and as shall be in addition to the proceedings set forth in said laws. "Building" includes all commercial, industrial and residential buildings including single family homes, duplexes, and apartment houses. If a housing unit in a multiple family building is a nuisance as defined then this procedure may be applicable to one or more housing units in the multiple family structure. If a rental unit in a commercial or industrial building is a nuisance as defined, then this procedure may be applicable to one or more rental units in the commercial or industrial building.

(Ord. 1097 (part), 1990)

A. Commencement of Proceedings. Whenever the chief of police has found and determined that a building is a nuisance as defined in Section 9.42.010, he/she shall notify the city administrator or designee (hereinafter referred to as the enforcement officer) who shall then commence proceedings to cause the vacation of the building for one year.

B. Notice and Order. The enforcement officer shall issue and serve by certified mail a notice and order directed to the record owner and all interested parties, as set forth in subsection C of this section, of the building. The notice and order shall contain:

1. Street address and a legal description sufficient for identification of the premises upon which the building is located;

2. A statement that the chief of police has found the building to be a nuisance with a brief and concise description of the specific conditions found to render the building a nuisance;

3. A statement that the nuisance may be abated by vacation of the premises for one year;

4. Statements advising:

i. That any person having any record title or legal interest in the building may appeal from the notice and order or any action of the enforcement officer to the city council, provided the appeal is made in writing as provided in this chapter and filed with the enforcement officer within fifteen days from the date of such notice and order; and

ii. That failure to appeal will constitute a waiver of all right to an administrative hearing and determination of the matter.

C. Service of Notice and Order. The notice and order, and any amended or supplemental notice and order, shall be served upon the record owner and posted on the property; one copy thereof also shall be served on each of the following if known to the enforcement officer or disclosed from official public records: the holder of any lease of record; and the holder of any other estate or legal interest of record on or to the building or the land on which it is located. The failure of the enforcement officer to serve any person required herein to be served shall not invalidate any proceedings hereunder as to any other person duly served or relieve any such person from any duty or obligation imposed on him/her by the provisions of this section.

D. Method of Service. Service of the notice and order shall be made upon all persons entitled thereto either personally or by mailing a copy of such notice and order by first class mail, postage prepaid, to each person at his or her address as it appears on the last equalized assessment roll of the county, or as known to the enforcement officer. If no address of any such person so appears or is known to the enforcement officer, then a copy of the notice and order shall be mailed to the address of the building involved in the proceedings. The failure of any such person to receive such notice shall not affect the validity of any proceedings taken under this section. Service by first class mail in the manner herein provided shall be effective on the date of mailing.

(Ord. 1234 (part), 1995: Ord. 1097 (part), 1990)

The enforcement officer shall file in the office of the county recorder a certificate describing the property and certifying:

A. That the building is a nuisance; and

B. That the owner has been so notified at the time of the service of notice and order set forth in Section 9.42.020.

(Ord. 1097 (part), 1990)

A. Form of Appeal. Any person entitled to service under Section 9.42.020 may appeal from any notice and order or any action of the enforcement officer under this article by filing at the office of the enforcement officer a written appeal containing:

1. The names of all appellants participating in the appeal;

2. A brief statement setting forth the legal interest of each of the appellants in the building or the land involved in the notice and order;

3. A brief statement describing the specific order or action protested, together with any material facts claimed to support the contentions of the appellants;

4. A brief statement of the relief sought and the reasons why it is claimed the protested order or action should be reversed, modified or otherwise set aside;

5. The signatures of all parties named as appellants or their representatives and their mailing addresses;

6. The appeal shall be filed within fifteen days from the date of such order or action of the enforcement officer.

B. Processing of the Appeal. Upon receipt of any appeal filed pursuant to this section, the city administrator shall present it to the city council who, at its next regularly scheduled meeting shall designate the hearing officer for such appeal.

C. Scheduling and Noticing Appeal of Hearing. As soon as practicable after receiving the written appeal, the hearing officer shall fix the date, time and place of the hearing of the appeal. Written notice of the time and place of the hearing shall be given to each appellant at least ten days prior to the date of the hearing, either causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal.

(Ord. 1097 (part), 1990)

Failure of any person to file an appeal in accordance with the provisions of Section 9.42.040 (A) shall constitute a waiver of his or her right to an administrative hearing and adjudication of the notice and order or any portion thereof.

(Ord. 1097 (part), 1990)

Only those matters or issues specifically raised by the appellant shall be considered in the hearing of the appeal.

(Ord. 1097 (part), 1990)

Enforcement of any notice and order of the enforcement officer issued under this code shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.

(Ord. 1097 (part), 1990)

A. Reasonable Dispatch. The hearing officer shall proceed with reasonable dispatch to conclude any matter before him/her. Due regard shall be shown for the convenience and necessity of any parties or their representatives. He/she may grant continuances for good cause shown.

B. Record. A record of the entire proceedings shall be made by tape recording, or by any other means of permanent recording determined to be appropriate by the hearing officer, or by certified shorthand reporter. The costs of the certified shorthand reporter shall be an administrative cost under Section 9.42.140 if the hearing officer determines that the building involved in the proceeding is a nuisance.

C. Transcript. A transcript of the proceedings shall be made available to all parties upon request and upon the payment of the costs therefor.

D. Oaths/Certification. In any proceedings under this section, the hearing officer has the power to administer oaths and affirmation and to certify to official acts.

(Ord. 1234 (part), 1995: Ord. 1097 (part), 1990)

The notice of the appellant shall be substantially in the following form, but may include other information:

"YOU ARE HEREBY NOTIFIED that a hearing will be held before (name), the Hearing Officer appointed by the Rialto City Council, at ___________ (place) on _______ (date), at the _______ (time), upon the Notice and Order served upon you to determine whether your property is a nuisance as defined in Section 9.42.010, Rialto Municipal Code. You may be present at the hearing. You may be, but need not be, represented by counsel. You may present any relevant evidence and will be given full opportunity to question all witnesses testifying against you. You may request the issuance of subpoenas to compel the attendance of witnesses and the production under penalty of perjury therefor with the Hearing Officer."

(Ord. 1097 (part), 1990)

A. Filing of Declaration. The hearing officer may obtain issuance and service of a subpoena for attendance of witnesses or the production of other evidence at a hearing upon the written demand of any party. The issuance and service of such subpoena shall be obtained upon the filing of a declaration under penalty of perjury therefor which states the name and address of the proposed witness; specifies the exact items sought to be produced and the materiality thereof in detail to the issues involved; and states that the witness has the desired items in his or her possession and under his or her control. A subpoena need not be issued when the declaration is defective in any particular.

B. Penalties. Any person who refuses without lawful excuse to attend any hearing or to produce material evidence in his or her possession or under his or her control as required by any subpoena served upon such person as provided for herein shall be guilty of an infraction.

(Ord. 1097 (part), 1990)

A. Rules. Hearings need not be conducted according to the technical rules relating to evidence and witnesses.

B. Oral Evidence. Oral evidence shall be taken only on oath or affirmation.

C. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil action in courts of competent jurisdiction in this state.

D. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts in this state.

E. Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.

F. Rights of Parties. Each party shall have these rights, among others:

1. To call and examine witnesses on any matter relevant to the issues of the hearing;

2. To introduce documentary and physical evidence;

3. To question opposing witnesses on any matter relevant to the issues of the hearing;

4. To impeach any witness regardless of which party first called him/her to testify;

5. To rebut the evidence against him/her;

6. To represent himself/herself or to be represented by anyone of his or her choice.

G. Official Notice.

1. What May Be Noticed. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact which may be judicially noticed by the courts of this state;

2. Parties To Be Notified. Parties present at the hearing shall be informed of the matters to be noticed;

3. Opportunity To Refuse. Parties present at the hearing shall be given a reasonable opportunity, on request, to refute the officially noticed matters by evidence or by written or oral presentation of authority;

4. Inspection of the Premises. The hearing officer may inspect any building or premises involved in the appeal during the course of a hearing; provided that:

i. Notice of the inspection shall be given to the parties before the inspection is made,

ii. The parties are given an opportunity to be present during the inspection, and

iii. The hearing officer shall state for the record upon completion of the inspection the material facts observed and the conclusions drawn therefrom,

iv. Each party then shall have a right to rebut or explain the matters so stated by the hearing officer.

(Ord. 1234 (part), 1995: Ord. 1097 (part), 1990)

The hearing officer shall file a written decision in the office of the city administrator. If the hearing officer determines that the building or portions thereof is a nuisance, he/she shall direct the appellant to vacate, secure and maintain the building and grounds for one year. Such decision shall contain a brief summary of the evidence considered and state the hearing officer's findings, conclusions and recommendations and shall set forth that it is subject to Code of Civil Procedure, Section 1094.6. The decision of the hearing officer shall be final forthwith. A copy of the decision shall be mailed to each party by certified mail. A notarized copy of the decision shall also be filed in the office of the county recorder of the county.

(Ord. 1097 (part), 1990)

A. General. After any order of the enforcement officer or the hearing officer made pursuant to this article shall have become final, no person to whom any such order is directed shall fail, neglect or refuse to obey any such order. Any such person who fails to comply with any such order is guilty of a misdemeanor.

B. Failure To Obey Order. If, after any order of the enforcement officer or hearing officer made pursuant to this article had become final, the person to whom such order is directed shall fail, neglect or refuse to obey such order, the city administrator may:

1. Cause such person to be prosecuted under subsection A of this section; or

2. Institute any appropriate action to abate such building as a public nuisance.

C. Failure To Commence Vacation. Whenever the required vacation is not commenced within fifteen days after any final notice and order issued under this article becomes effective:

1. The city administrator shall direct the chief of police to cause the building described in such notice and order to be vacated by posting at each entrance thereto a notice reading:

"NUISANCE DO NOT OCCUPY

It is a misdemeanor to occupy this building or to remove or deface this notice. Chief of Police, City of Rialto"

2. No person shall occupy any building which has been posted as specified in this subsection. No person shall remove or deface any such notice so posted until the vacation ordered by the city administrator has been completed.

(Ord. 1097 (part), 1990)

The enforcement officer shall keep an itemized account of the expenses incurred, including administrative costs, in the building vacation. He/she shall mail a copy of the accounting to the persons who have interest in the property, together with a notice of the time and place that the statement will be submitted to the city council for confirmation and approval; and at which time the council will consider any objection which may be raised by any party involved in the proceeding.

(Ord. 1234 (part), 1995: Ord. 1097 (part), 1990)

A. At the time fixed for the hearing of the statement expense, the city council shall consider the statement together with any objections or protests which may be raised by any of the property owners liable to be assessed for the doing of the work and any other interested person, after which by resolution the report as submitted, or as ordered, revised, corrected or modified by the city council, shall be confirmed and adopted.

B. If the statement is not paid within five days after the passing of the resolution, it shall constitute a lien on the real property from which the building was vacated, and shall be collected as a special assessment against the real property. The resolution shall further direct that the city clerk shall file with the auditor of San Bernardino County and the San Bernardino County Tax Assessor and Tax Collector, certified copies of the resolution and the statement adopted therein. The clerk shall direct the auditor to enter the amount of the charges against the real property described in the statements and resolution as it appears on the current assessment roll.

C. The amounts of the charges shall constitute a lien against the real property against which the charges have been imposed. The tax collector shall include the amount of the charges on bills for taxes levied against the real property. Thereafter, the amount of the charges shall be collected at the same time and in the same manner and by the same person as together with and not separately from, the general taxes for the city and shall be subject to the same penalties and interest upon delinquent payment.

(Ord. 1097 (part), 1990)