San Benito County Municipal Code Ch. 1.07 Office of the County Hearing Officer

(A) It is the intent of the Board of Supervisors of the County of San Benito in adopting this chapter to establish the Office of the county hearing officer pursuant to Cal. Gov’t Code § 27720, Title 3, Div. 2, Part 3, Ch. 14 for the purpose of adjudicating enforcement actions, to which office the Board of Supervisors shall appoint one or more Hearing Officers.

(B) Pursuant to the authority granted by Cal. Gov’t Code §§ 27720 et seq., the Board of Supervisors does enact this chapter.

(Ord. 961, § 1, 2017)

The following definitions shall apply to this chapter as written unless context indicates or requires a different meaning.

COUNTY. The County of San Benito

COUNTY DEPARTMENT. The County of San Benito or any department, agency, board, commission, or committee thereof, including any local public entity which contracts with the county pursuant to § 1.07.030.

COUNTY HEARING OFFICER. A person designated by the Board of Supervisors and appointed to the position of hearing officer, and who is independently authorized to conduct administrative hearings and issue recommended decisions pursuant to and as authorized by the this chapter.

ENFORCING OFFICER OF CODE ENFORCEMENT OFFICER. The San Benito County Resources Management Agency Director, Building Official, Building Inspector, Cannabis Coordinator, Health Officer, Sheriff, Agricultural Commissioner, Fire Chief, or their authorized deputies or designee(s), and any person employed by the County of San Benito and appointed to the position of code enforcement officer, as established by San Benito County Resolution Number No. 90-27 and Ordinances 567 and 625, each of whom is independently authorized to enforce this chapter.

(Ord. 961, § 1, 2017)

(A) A county hearing officer shall have those powers set forth in Cal. Gov’t Code §§ 27721 and 27722, including the power to conduct the hearing, the power to decide the matter under this section upon which a hearing has been held, the power to make findings of fact and conclusions of law required for the decision, the power to issue subpoenas at the request of a party of interest, the power to receive evidence, the power to administer oaths, the power to rule on questions of law and the admissibility of evidence, the power to continue the hearing from time to time, and the power to prepare a record of the proceedings.

(B) The county hearing officer is authorized to:

(1) Conduct hearings specified in § 1.07.040;

(2) Issue subpoenas; receive evidence; administer oaths; rule on questions of law and the admissibility of evidence;

(3) Grant continuances based on good cause shown by one of the parties to the hearing or upon his or her own independent determination that due process has not been adequately afforded to a party;

(4) Exercise continuing jurisdiction over the subject matter of an administrative enforcement hearing for the purposes of granting a continuance;

(5) Make findings of fact and legal conclusions;

(6) Rule upon the merits of an administrative enforcement hearing or an administrative appeal hearing upon consideration of the evidence submitted and prepare and issue a written recommended decision and order, including, but not limited to:

(a) Orders that are necessary to remedy any violations identified in a notice issued in accordance with this code including authorizing the enforcing official to summarily abate the violation and/or impose conditions for the continued use of the subject property or activity;

(b) Impose, modify, or deny administrative penalties. In those cases where the administrative penalty is not fixed, but is subject to a range as otherwise established by this code, the hearing officer may set, increase, or decrease, according to proof, the amount of administrative penalty or the daily rate of such administrative penalty;

(c) Determine the date upon which the accrual of administrative penalties shall begin; and, where the corrections are subsequently completed to the county's satisfaction, the date upon which the accrual of administrative penalties shall end. If the violations have not been so corrected, the daily accrual of the administrative penalties accrued shall continue until the violations are corrected or the legal maximum limit is reached;

(d) Determine amounts and order payment of abatement costs and/or administrative penalties;

(e) Imposition of a lien, special assessment, special collection, or other collection process against a responsible person and any affected property, as appropriate after hearing for objections to the filing of liens or special assessments on real property; and

(f) Deferral of the effective date of orders of abatement in cases of extreme hardship to owner-occupants or tenants of dwellings; and

(7) Prepare a record of the proceedings.

(Ord. 961, § 1, 2017)

The Board of Supervisors may, in its discretion, appoint a county hearing officer, and a County Department may, in its discretion and with the approval of the Board of Supervisors, direct such an officer to conduct the following:

(A) Permit denial, revocation and suspension hearings;

(B) Any other proceeding when a state law or local ordinance provides that a hearing be held and that findings of fact or conclusions of law be made by any agency;

(C) Administrative enforcement hearings pursuant to Chapters 1.06, 7.02, and 11.15 of the San Benito County Code;

(D) Administrative appeals regarding a grant or denial of a waiver request submitted pursuant to Chapter 7.02 or 11.15 of the San Benito County Code;

(E) Administrative appeals from any person aggrieved by issuance of a permit the Cannabis Coordinator under Ch. 7.02 of the San Benito County Code;

(F) Administrative appeals from the property owner on whether violations of this code exist on such property where the responsible enforcing officer issued a Refusal to Issue or where an NOV was recorded with the County Recorder in accordance with Ch. 1.06 of this code;

(G) Administrative appeals regarding summary abatement proceedings pursuant to Ch. 1.06 of this code;

(H) Lien hearings pursuant to Chapters 1.06 and 11.15 of the San Benito County Code.

(I) In addition, the Board of Supervisors authorizes the county hearing officer to conduct hearings on requests for extended amortization pursuant to Ord. 949, the urgency marijuana cultivation ordinance. Any such hearings shall be conducted as a noticed public hearing and subject to the same mailed notice requirements as required by Ord. 949. The hearing officer shall be required to make the same findings as required for approval as would the Board of Supervisors, specifically, that that there is sufficient evidence in the record to determine that approving or conditionally approving the application is required in order to avoid an unconstitutional taking of property, or that the applicant has shown that three month amortization period is not a reasonable amortization period pursuant to state law. The decision of the county hearing officer shall be final and conclusive. Once directed to conduct any of the above-referenced hearings, a county hearing officer is authorized to issue subpoenas, to receive evidence, to administer oaths, to rule on questions of law and the admissibility of evidence and to prepare a record of the proceedings as specified more particularly herein. An agency may, but need not be, present during any hearing.

(Ord. 961, § 1, 2017)

(A) Qualification. The Board of Supervisors shall appoint one or more persons to the position of hearing officer based on the following qualifications:

(1) Each such hearing officer shall be an attorney at law having been admitted to practice before the courts of this state for at least five years prior to appointment.

(2) Hearing examiners shall be appointed for a period of not less than one year. In the event that the Board of Supervisors appoints more than one hearing examiner, each day of hearings required under this section shall be assigned to a hearing examiner based upon an alphabetical rotation.

(B) Disqualification. Any person appointed to serve as a hearing officer is subject to disqualification for bias, prejudice, interest, or for other reason for which a judge may be disqualified in a court of law. Rules and procedures for the disqualification of a hearing officer based upon a showing of actual bias, prejudice, interest, or other reason shall be promulgated by the County Administrative Officer.

(Ord. 961, § 1, 2017)

The employment, performance evaluation, compensation and benefits of the county hearing officer shall not be directly or indirectly conditioned upon the finding of nuisance, the amount of the administrative penalties imposed or assessed by the hearing officer, and/or the volume of nuisances ordered abated.

(Ord. 961, § 1, 2017)

If, during the hearing, any person disobeys or resists any lawful order, refuses to respond to a subpoena, refuses to take the oath or affirmation as a witness, thereafter refuses to be examined, engages in misconduct, or obstructs the proceeding, a county hearing officer shall certify the facts to the superior court of the county to initiate proceedings pursuant to Cal. Gov’t Code §§ 25173 through 25175.

(Ord. 961, § 1, 2017)

(A) A hearing officer shall record the hearing with an electronic recording device. Any party may at his or her own expense provide for the taking of the testimony by a qualified stenographic reporter.

(B) Upon payment of the requisite fees to an agency, that agency shall prepare a duplicate recording or a duplicate tape of the proceedings, a copy of any documentary evidence admitted at the hearing and any pleading, notice, order, recommended decision, final decision or other paper relating to the case.

(Ord. 961, § 1, 2017)

(A) Upon conclusion of an administrative hearing in which evidence is received, the county hearing officer shall prepare the administrative record, including:

(1) A record of the hearing, including all documentary evidence and either a transcript of oral testimony or a summary of oral testimony;

(2) Decision, including any findings of fact and conclusions of law (“decision”).

(B) If the county hearing officer has been authorized to decide the matter upon which a hearing was held, the administrative record shall be submitted the Clerk of the Board of Supervisors. Such decision and order shall be final and conclusive.

(C) If the county hearing officer has not been authorized to decide the matter upon which a hearing was held, the county hearing officer shall, for the Board of Supervisors’ consideration, submit the original copies of the administrative record in the form of a recommendation to the Clerk of the Board of Supervisors, and shall also serve a copy of the recommendation upon all parties. If any party is represented by an attorney, the attorney shall be served.

(Ord. 961, § 1, 2017)

Any local public entity within the county may contract with the county to employ the services of a county hearing officer. The duties and responsibilities of a county hearing officer described in Cal. Gov’t Code §§ 27721 and 27722 shall be set forth in the contract. Reimbursement to the county shall, unless otherwise specified in the contract, be made on a pro rata basis of actual cost to the county in providing the service, including salaries, benefits, overhead and any travel expense. An agency contracting with the county under this section is authorized to conduct its hearings in accordance with this chapter. If an agency has adopted its own rules of procedure, however, such rules may instead be followed.

(Ord. 961, § 1, 2017)

The provisions of this chapter constitute an alternative to, and do not supersede, any other provision of law specifying that any matter may be heard or determined by a hearing officer.

(Ord. 961, § 1, 2017)