San Bernardino Municipal Code Ch. 9.93 Administrative Civil Penalties

The Mayor and City Council have determined that the enforcement of the municipal code throughout the city is an important public service and is vital to the protection of the public’s health, safety and quality of life. The Mayor and City Council have determined a need for alternative methods of code enforcement and that a comprehensive code enforcement system uses a combination of judicial and administrative remedies to gain compliance with code regulations. The Mayor and City Council find a need to draft precise regulations that can be effectively applied in judicial and administrative proceedings and further finds that there is a need to establish uniform procedures for the proper application of administrative code enforcement remedies and administrative hearings to resolve administrative code enforcement cases and appeals.

(Ord. MC-1553, passed 2-17-2021)

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ADMINISTRATIVE COSTS. All costs incurred by or on behalf of the city from the first discovery of the violation of the municipal code through the appeal process and until compliance is achieved, including, but not limited to, staff time in investigating the violation, inspecting the property where the violation occurred, preparing investigation reports, sending notices, preparing for and attending any appeal hearing, attorneys’ fees and fees paid to the administrative hearing officer. ADMINISTRATIVE COSTS shall not mean the administrative civil penalties assessed pursuant to this chapter. ADMINISTRATIVE COSTS shall not mean late payment charges that accrue, or collection costs incurred, as a result of unpaid administrative civil penalties.

ADMINISTRATIVE HEARING OFFICER. Any person assigned by the City Manager to preside at administrative hearings.

CITY MANAGER. The San Bernardino City Manager, or his or her designee

ENFORCEMENT OFFICER. Any code enforcement officer or other city employee or agent of the city with the authority to enforce any provision of the municipal code.

PERSON. Any natural person or entity, including, but not limited to, any corporation, company, partnership, association, trust or any other form of business entity.

RESPONSIBLE PARTY. Includes, but is not limited to, any of the following:

(1) A person who causes a code violation to occur;

(2) A person who maintains or allows a code violation to continue, by his or her action or failure to act;

(3) A person whose agent, employee or independent contractor causes a code violation by his or her action or failure to act;

(4) A person who is an owner, a lessee or sub-lessee, with the current right of possession, of real property where a property related code violation occurs or exists; and

(5) If the person or persons are a business entity, the manager or on-site supervisor where the violation exists shall also be a RESPONSIBLE PARTY.

(Ord. MC-1553, passed 2-17-2021)

(A) Any responsible party who violates any provision of the municipal code may be subject to the assessment of administrative civil penalties payable to the city, or its authorized vendor for receipt of payment, pursuant to the administrative procedures provided in this chapter.

(B) The assessment of administrative civil penalties established in this chapter is in addition to any other administrative or judicial (civil or criminal) remedy established by law which may be pursued to address any violation of the municipal code.

(C) For the purposes of assessing administrative civil penalties, each and every day a violation of any provision of the municipal code exists shall constitute a separate and distinct violation.

(D) Administrative civil penalties may be directly assessed by issuance of an administrative civil penalties notice and order issued by an enforcement officer, as provided in this chapter.

(E) Administrative civil penalties for violations of any provision of the municipal code shall be assessed at a rate of up to $1,000 per violation per day; however, if applicable, the administrative hearing officer may reduce the fine in his or her upon a finding of good cause pursuant to the criteria listed in § 9.93.040. The maximum amount of administrative civil penalties shall not exceed $100,000 per parcel or structure for any related series of violations.

(Ord. MC-1535, passed 5-6-2020; Ord. MC-1553, passed 2-17-2021)

(A) Whenever an enforcement officer determines that a violation of one or more provisions of the municipal code or any code adopted by reference has occurred or continues to exist, a written administrative civil penalties notice and order may be issued to the responsible party.

(B) The administrative civil penalties notice and order shall identify laws or code sections violated. The administrative civil penalties notice and order may describe how each section has been violated.

(C) The administrative civil penalties notice and order shall identify the dates and locations of the violations.

(D) The administrative civil penalties notice and order shall establish the amount of administrative civil penalties. The fine may be fixed for a single violation or may be daily for continuing violations.

(E) The administrative civil penalties notice and order shall identify the factors used in determining the duration and daily amount of administrative civil penalties.

(F) In the case of continuing violations, there shall be an ongoing assessment of administrative civil penalties at the daily rate established in the administrative civil penalties notice and order until the violations are corrected or until such time that the total amount of administrative civil penalties reaches the maximum amount allowed by this chapter. For continuing violations, the administrative civil penalties notice and order shall identify the date when the civil penalties began to accrue and, if applicable, the date when the assessment of administrative civil penalties ended.

(G) If the enforcement officer determines that the violations are of a continuing nature, the administrative civil penalties notice and order shall demand that the responsible party cease and desist from further action causing the violations and commence and complete all action to correct the outstanding violations under the guidance of the appropriate city departments.

(H) When a violation pertains to building, plumbing, electrical or other similar structural or zoning issues that do not create an immediate danger to health or safety, the administrative civil penalties notice and order shall provide that administrative civil penalties shall not be imposed if the responsible party corrects all of the violations within a reasonable time as determined by the enforcement officer.

(I) The administrative civil penalties notice and order may describe the remedial actions required to permanently correct any outstanding violations and establish a time frame for completion.

(J) The administrative civil penalties notice and order may enumerate any other consequences pursuant to this chapter, if the responsible party fails to comply with the terms and deadlines as prescribed in the administrative civil penalties notice and order.

(K) More than one administrative civil penalties notice and order may be issued against the same responsible party if they encompass different dates, separate or different violations or different locations.

(L) The administrative civil penalties notice and order shall be served upon the responsible party by any one of the methods of service as set forth in § 9.93.035.

(M) The administrative civil penalties notice and order shall identify appropriate hearing procedures as required by this chapter.

(Ord. MC-1553, passed 2-17-2021)

(A) Whenever a notice is required to be given under this chapter, the notice shall be served by any of the following methods unless different provisions are otherwise specifically stated to apply:

(1) Personal service;

(2) By United States mail addressed to the person to be notified; or

(3) Posting the notice conspicuously on or in front of the property or the affected unit.

(B) Service by mail shall be effective on the date of deposit in the mail.

(C) The failure of any person with an interest in the property to receive any notice served in accordance with this section shall not affect the validity of any proceedings taken under this chapter.

(D) A notice issued to an owner of real property must be mailed to the owner of the property as shown on the last equalized county assessment roll.

(Ord. MC-1553, passed 2-17-2021)

(A) In determining the date when administrative civil penalties start to accrue, an enforcement officer may consider the date when the city first discovered the violation as evidenced by the issuance of a notice of violation or any other written correspondence.

(B) The assessment of administrative civil penalties shall end when all corrections or other action required by the administrative civil penalties notice and order have been completed.

(C) (1) The enforcement officer may assess fines at a rate of up to $1,000 per violation per day.

(2) In determining the amount of the administrative civil penalties at an administrative hearing, the hearing officer may consider some or all of the following factors:

(a) The duration of the violation;

(b) The frequency of recurrence of the violation;

(c) The seriousness of the violation;

(d) Whether the violation is designated as an infraction, a misdemeanor or either an infraction or a misdemeanor by the municipal code;

(e) The history of the violation;

(f) The good faith effort by the responsible party to comply;

(g) The economic impact of the penalty on the responsible party; and

(h) The impact of the violation upon the community.

(Ord. MC-1553, passed 2-17-2021)

An enforcement officer or administrative hearing officer is authorized to assess any reasonable administrative costs in addition to the administrative civil penalties.

The City Manager shall assign an administrative hearing officer and establish a date, time and place for the administrative hearing in accordance with this chapter if the responsible party requests a hearing or in the event of a continuing violation in order for the administrative hearing officer to determine the amount of the fine for a continuing violation.

(Ord. MC-1553, passed 2-17-2021)

It is the purpose and intent of the Mayor and City Council to afford due process of law to any person who is directly affected by an administrative enforcement action. Due process procedures are intended to establish a forum to efficiently, expeditiously and fairly resolve issues raised in any administrative enforcement action.

(Ord. MC-1553, passed 2-17-2021)

(A) Any responsible party may contest the administrative civil penalties notice and order by completing a request for administrative hearing form and returning it to the City Clerk within 15 days from the date the administrative civil penalties notice and order was served. The request for administrative hearing must also include payment to the City Clerk of the appeal fee, as established or amended, from time to time, by resolution of the City Council. The City Manager, or his or her designee, shall then send a copy of the request for administrative hearing form to the enforcement officer and the City Attorney, and assign an administrative hearing officer and schedule a date, time and place for the hearing.

(B) The hearing before the administrative hearing officer shall be set not less than 15 days and not more than 60 days from the date that the request for administrative hearing form is filed with the City Clerk unless the parties waive such time limits. The failure to hold the hearing within this time period does not invalidate any action of the administrative hearing officer.

(C) Written notice of the date, time and place of the hearing shall be served at least ten calendar days prior to the date of the hearing on the responsible party, the enforcement officer and the City Attorney.

(D) The format and contents of the hearing notice shall be in accordance with rules and policies promulgated by the City Manager.

(E) The notice of hearing shall be served by any of the methods of service listed in § 9.93.035.

(F) A failure to file a timely request for administrative hearing shall be deemed a waiver of the right to a hearing on the administrative civil penalties notice and order and a failure to exhaust administrative remedies.

(Ord. MC-1553, passed 2-17-2021)

The City Manager must establish procedures for the selection of a qualified person to serve as administrative hearing officer to preside over hearings under this chapter. Hearing officers must be selected in a manner that avoids the potential for pecuniary or other bias. For purposes of this section, QUALIFIED PERSON includes an individual with a background in the practice of law or with a background in local governance, that is particularly experienced or knowledgeable about the subject matter at issue or that is otherwise deemed qualified by the City Manager.

(Ord. MC-1553, passed 2-17-2021)

The administrative hearing officer must recuse himself or herself from a matter if he or she determines that any bias or personal embroilment prevents the administrative hearing officer from rendering fair and impartial decision.

(Ord. MC-1553, passed 2-17-2021)

(A) The administrative hearing officer shall have all powers necessary to conduct fair and impartial hearings, including, but not limited to, the power to:

(1) Hold conferences for settlement or simplification of the issues;

(2) Administer oaths and affirmations;

(3) Hear testimony;

(4) Rule upon motions, objections and the admissibility of evidence;

(5) Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing;

(6) Regulate the course of the hearing in accordance with this chapter or other applicable law;

(7) Issue a final order which includes findings of fact and conclusions of law; and

(8) Impose administrative civil penalties and assess administrative costs and issue orders that are consistent with the applicable violation.

(B) (1) At the hearing, the administrative hearing officer must hear and consider the testimony of the appellant, respondent and their witnesses, as well as any documentary evidence presented by these persons. The administrative hearing officer must ensure that parties receive a fair hearing and are afforded due process in accordance with the applicable state and federal law governing such hearings.

(2) The administrative hearing officer shall only consider evidence that is relevant to the following issues:

(a) Whether a violation of the municipal code existed on the dates specified in the administrative civil penalties notice and order and whether the responsible party caused, maintained or permitted said violation; and

(b) Whether the amount of the administrative civil penalties is appropriate for reduction pursuant to the criteria listed in § 9.93.040.

(C) The administrative hearing officer, before or during a hearing, may grant a request for a continuance, in his or her discretion, for good cause; however, in no event may the hearing be continued for more than 30 calendar days without stipulation by all parties.

(D) The administrative hearing officer has continuing jurisdiction over the subject matter of an administrative hearing for the purposes of granting a continuance, ensuring compliance with an administrative hearing order and modifying an administrative hearing order.

(Ord. MC-1553, passed 2-17-2021)

(A) Administrative hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply. Other than copies of citations, notices, orders and inspection reports served on the responsible parties as part of the enforcement action giving rise to the hearing, no pre-hearing discovery is required.

(B) The city bears the burden of proof at an administrative hearing to establish the existence of a violation of the municipal code and the responsible party’s responsibility for such violation. The administrative citation and any additional documents submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

(C) The standard of proof to be used by the administrative hearing officer in deciding the issues at an administrative hearing is by a preponderance of the evidence.

(D) Each party shall have the opportunity to cross-examine witnesses and present relevant evidence in support of that party’s case.

(E) The responsible party may bring an interpreter to the hearing at his or her sole expense. The city may, at its discretion, record the hearing by stenographer, court reporter, audio recording or video recording.

(Ord. MC-1553, passed 2-17-2021)

Any responsible party whose property or actions are the subject of an administrative hearing and who fails to appear at the hearing shall be deemed to have waived his or her right to a hearing and the adjudication of the issues related to the hearing, and shall be deemed to have failed to exhaust his or her administrative remedies; provided that proper notice of the hearing as required by this chapter has been provided.

(Ord. MC-1553, passed 2-17-2021)

(A) Within 30 business days after the presentation of all evidence and testimony, including any relevant evidence and testimony presented by the responsible party, the administrative hearing officer shall issue an administrative hearing order which affirms or rejects the administrative civil penalties notice and order or which modifies the daily rate or duration of the administrative civil penalties depending upon the review of the evidence and application of the criteria in § 9.93.040. Failure of the administrative hearing officer to render a decision within this time period does not invalidate any action of the administrative hearing officer. The administrative hearing officer’s decision must be in writing and must set forth the administrative hearing officer’s findings of fact and conclusions of law. The administrative hearing officer may increase or decrease the total amount of civil penalties and costs that were assessed by the administrative civil penalties notice and order upon a showing of good cause and in consideration of the factors listed in § 9.93.040.

(B) The administrative hearing officer may issue an administrative hearing order that requires the responsible party to cease from violating the municipal code and to make necessary corrections.

(C) As part of the administrative hearing order, the administrative hearing officer may establish specific deadlines for the payment of civil penalties and costs and condition the total or partial assessment of administrative civil penalties on the responsible party’s compliance by specified deadlines.

(D) The administrative hearing officer may issue an administrative hearing order which imposes additional administrative civil penalties that will continue to be assessed until the responsible party complies with the administrative hearing officer’s decision and corrects the violation.

(E) The administrative hearing officer may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the administrative hearing order.

(F) The administrative hearing order shall be served on all parties by any one of the methods listed in § 9.93.035.

(G) The administrative hearing order must contain the following statement: “The decision of the hearing officer is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure section 1094.6 et seq.” The administrative hearing order shall become final on the date of service of the order, unless any party files a written request for reconsideration or modification with the City Manager within 15 days after the date of service of the order.

(H) A request for reconsideration or modification of an administrative hearing order may only be based upon an error of law or new evidence not available to the requesting party at the time of the administrative hearing. The decision of the administrative hearing officer on the request for reconsideration or modification shall become final on the date of service of the decision by any one of the methods listed in § 9.93.035.

(Ord. MC-1553, passed 2-17-2021)

Any responsible party whose property or actions are the subject of an administrative hearing and who fails to appear at the hearing shall be deemed to have waived his or her right to a hearing and the adjudication of the issues related to the hearing, and shall be deemed to have failed to exhaust his or her administrative remedies; provided that proper notice of the hearing as required by this chapter has been provided.

(Ord. MC-1553, passed 2-17-2021)

(A) Upon the failure of the responsible party to comply with terms and deadlines set forth in the administrative hearing order, the enforcement officer may use all appropriate legal means to recover the administrative civil penalties and administrative costs and obtain compliance with the administrative hearing order.

(B) After the administrative hearing officer issues an administrative hearing order, the enforcement officer shall monitor the violations and determine compliance.

(C) It is unlawful for a party to an administrative hearing, who has been served with a copy of the final administration hearing order pursuant to this chapter, to fail to comply with the order. Failure to comply with a final administrative hearing order, except for non-payment of administrative civil penalties, may be prosecuted as an infraction or misdemeanor at the discretion of the City Attorney.

(Ord. MC-1553, passed 2-17-2021)

(A) The decision of the administrative hearing officer shall be final and conclusive and shall not be subject to appeal to the Mayor and City Council. Once an administrative hearing order becomes final as provided in this chapter, the time in which judicial review of the order must be sought shall be governed by Cal. Code of Civil Procedure, § 1094.6 or other applicable state law.

(B) The appealing party must serve upon the City Clerk, either in person or by first class mail, a copy of the notice of appeal.

(Ord. MC-1553, passed 2-17-2021)

Unpaid administrative civil penalties and administrative costs shall be a debt to the city and subject to all remedies for debt collection as allowed by law.

(Ord. MC-1553, passed 2-17-2021)

The provisions of this chapter are severable, and if any sentence, section or other part of this chapter should be found to be invalid, such invalidity shall not affect the remaining provisions, and the remaining provisions shall continue in full force and effect.

The adoption of this chapter is exempt from the provisions of the California Environmental Quality Act, pursuant to § 15061(b)(3) of the Guidelines for Implementation of the California Environmental Quality Act (Title 15, Cal. Code of Regulations, commencing with § 15000), as it can be seen with certainty that there is no possibility that the activity will have a significant effect on the environment.

(Ord. MC-1268, passed 4-22-2008)

Notwithstanding any other provisions of this article, the authority of the administrative hearing officer to conduct administrative hearings in accordance with this chapter shall not preclude the city from seeking any remedies for code or ordinance violations through the use of any other administrative procedure or court proceeding.

(Ord. MC-1553, passed 2-17-2021)