San Diego County Municipal Code Ch. 2 Administrative Civil Penalties

This chapter provides a procedure by which County enforcement officials may assess administrative civil penalties as an alternative enforcement method for any violation of this code, the San Diego County Zoning Ordinance, any other County ordinance and any State law that County officials enforce. The remedies in this chapter are in addition to all other remedies the County may pursue and only govern enforcement actions brought pursuant to this chapter. Nothing in this chapter limits the ability of any enforcement official to seek the maximum civil penalties allowed when following any other enforcement procedure or in any civil action.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

The following definitions shall apply to this chapter:

(a) "Director" means the Director of any County department or a Director's designated representative, responsible to enforce County codes, County ordinances or State codes.

(b) "Enforcement official" means any County employee with enforcement authority for County codes, County ordinances or State codes.

(c) "Hearing officer" means a person who presides over an administrative civil penalties hearing.

(d) "Responsible person" means a "person," as defined in Section 12.115 of this code, responsible for a violation prosecuted under this chapter.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

A Director may assess civil penalties against a responsible person pursuant to the administrative procedures in this chapter as follows:

(a) At a daily rate the Director determines pursuant to the criteria in Section 18.205.

(b) For County code or ordinance violations, up to $1,000 per day per violation against each responsible person, but no more than $50,000 in civil penalties for any one violation against a responsible person in any 12 month period.

(c) For State code violations, up to $2,500 per day per violation against each responsible person, but no more than $125,000 in civil penalties for any one violation against a responsible person in any 12 month period.

(d) When more than one person is responsible for a violation each responsible person may be separately assessed. A person may be found responsible for different violations, or repeat violations, which are subject to separate cumulative maximums.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) Whenever a Director determines that a violation the Director has authority to enforce has occurred or is occurring the Director may assess civil penalties pursuant to a written Notice and Order to any responsible person. When violations involve more than one department a Director may delegate enforcement authority to another Director.

(b) The Notice and Order issued by a Director shall state:

(1) The name of the person against whom the civil penalty is assessed;

(2) A description of the violation and all sections of the code or ordinance violated that are being charged;

(3) The date and location of each violation;

(4) A daily civil penalty assessment and the factors in section 18.205 the Director considered in determining the amount;

(5) The beginning and ending date for the civil penalty assessment, unless the violation is continuing as of the date of the Notice. In the case of a continuing violation the Director may assess penalties up to the day the Notice is issued and/or assess continuing penalties at the daily rate established in the Notice until the violation is corrected;

(6) Where a Director determines any violation is continuing, the responsible person is ordered to immediately cease violating the applicable law and commence and complete all action necessary to correct any outstanding violation under the guidance of the enforcement department;

(7) The process for payment of civil penalties is as provided in section 18.207;

(8) The person charged has the right to request a hearing to contest the Notice and Order as provided in section 18.208;

(9) If the person charged fails to request a hearing within 14 days of the date on the Notice and Order the person waives all administrative remedies and the person loses the right to contest (A) whether any violation occurred, (B) whether the person charged is responsible for any violation charged, (C) the dates of any violation, including whether any violation is continuing and (D) whether the amount assessed is reasonable.

(c) More than one Notice and Order may be issued against the same responsible person if the notice encompasses different dates and/or different violations.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) In determining the date when civil penalties started to accrue, a Director may consider the date when the Department first discovered a violation had occurred, as evidenced by any writing issued or sent to a responsible person.

(b) The assessment of civil penalties shall end when all action required by the Notice and Order has been completed to the satisfaction of a Director.

(c) In determining the amount of the daily rate at which a civil penalty is assessed a Director may consider some or all of the following factors:

(1) The duration of the violation.

(2) The frequency or recurrence of the violation.

(3) The nature and seriousness of the violation.

(4) The impact of the violation on environmentally sensitive land or habitat or historical resources.

(5) The responsible person's conduct after being notified of the violation.

(6) The good faith effort by the responsible person to comply.

(7) The economic impact of the penalty on the responsible person.

(8) Any financial gain incurred by the responsible person as a result of the violation.

(9) The violation's impact on the community.

(10) Any other factors that justice may require.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

The Notice and Order shall be served on the responsible person as provided by section 11.112 of this code. If for any reason service cannot be completed as provided in section 11.112, service may be accomplished by posting a copy of the notice in a conspicuous place on or near the property on which the violation is located. At the discretion of the Director, the notice may be posted in addition to personal or mail service.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) Civil penalties assessed shall be paid in full within 15 days from the date the Notice and Order is served unless the person served with the Notice and Order files a timely request for a hearing under section 18.208. If a timely request for a hearing is filed, no payment of the assessed civil penalties shall be required until the conclusion of the hearing.

(b) In the case of a continuing violation, the person charged shall pay any amount assessed in the Notice and Order within 15 days from the date the Notice and Order was served. If a Director assesses continuing penalties as provided in section 18.204(b)(5) the person charged with a continuing violation shall be responsible to pay accrued penalties within 15 days from the date of notice from a Director that payment of an additional amount is due. If a timely request for a hearing is filed, penalties for continuing violations will continue to accrue, but payment shall not be required until the conclusion of the hearing.

(c) Civil penalties paid to the County before a hearing under section 18.208 shall be refunded in full or in part if a hearing officer determines:

(1) A violation enforceable under this chapter did not occur or did not occur on some or all of dates charged, or

(2) The person charged was not responsible for a violation, or

(3) The amount of the civil penalties shall be reduced.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08; amended by Ord. No. 10211 (N.S.), effective 6-1-12; amended by Ord. No. 10578 (N.S.), effective 12-13-18)

(a) A person may request a hearing to contest a Notice and Order by completing a Request for Hearing form within 14 days after the notice was served, either at the office of the department that issued the Notice or by returning a Request for Hearing form by mail. If a person requests a hearing by mail, the request must be postmarked within 14 days of the Notice. Failure to timely request a hearing constitutes a waiver of the right to contest the Notice and the issues in paragraph (b) below.

(b) If the person charged as a responsible person in the Notice requests a hearing the person may contest any or all of the following issues:

(1) Whether a violation enforceable under this chapter occurred,

(2) Whether the person charged is responsible for the violation,

(3) The dates when the violation occurred, including whether the violation is continuing,

(4) Whether the amount assessed for the violation is reasonable.

(c) Within seven days after a County Department receives a timely request for a hearing it shall ask the Clerk of the Board of Supervisors to schedule a hearing before a County hearing officer appointed pursuant to sections 650 et seq. of the County Administrative Code.

(d) The Clerk shall set a hearing date, assign the matter to a hearing officer by selecting a hearing officer on a rotating basis from the list of appointed hearing officers and advise the person requesting the hearing and the Director who issued the Notice of the date, time and location of the hearing at least 10 days before the hearing.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

The following procedures shall apply to hearings conducted under this chapter:

(a) Every witness shall take an oath or make an affirmation.

(b) The County bears the burden of proof at all civil penalties hearings. The standard of proof at a hearing is the preponderance of the evidence.

(c) The hearing officer may consolidate hearings involving the same responsible person and/or the same property.

(d) The hearing officer may continue a hearing for good cause.

(e) Each party shall have the right to: call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach any witness regardless of which party first called the witness to testify and rebut the evidence against the party. The County may call and examine the appellant or any agent of the appellant as a witness during the department's case in chief or during the department's rebuttal case. The hearing officer may examine the appellant or any of the appellant's employees or agents as if under cross-examination.

(f) Strict rules of evidence shall not apply. Evidence that might otherwise be excluded under the Evidence Code may be admissible if the hearing officer determines that it is relevant and the kind that reasonably prudent persons rely on in making decisions. All rules of privilege recognized by the Evidence Code, however, shall apply to the hearing. The hearing officer shall also exclude irrelevant and cumulative evidence.

(g) The hearing shall be conducted in English. If the appellant or any of appellant's witnesses require an interpreter the appellant is responsible to provide a State certified interpreter at appellant's expense.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) The failure of any responsible person, who has been served with a Notice and Order, to appeal the Notice and Order or attend a properly noticed civil penalties hearing shall constitute a waiver of the right to an administrative hearing, the right to contest the Notice and Order and the right to contest any issue that could have been considered or is considered by the hearing officer at the hearing. If a responsible person, who has been served with a notice of hearing fails to appear for a hearing, a Director may request the hearing be continued or may elect to go forward with the hearing without the responsible person.

(b) If a person served with a Notice and Order does not request a hearing to appeal the Notice and Order within the time required by section 18.208(a) the director may issue an Administrative Enforcement Order, without a hearing, for any violation that was the subject of the Notice and Order.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) The hearing officer shall issue a written decision within five business days after all testimony and other evidence have been received and file the decision with the Clerk of the Board. If the hearing officer sustains the Director's Notice and Order in whole or in part, the hearing officer shall also issue an Administrative Enforcement Order (AEO). The Clerk of the Board shall serve the written decision and any AEO the hearing officer issues on the parties by mail.

(b) The hearing officer's decision shall address each issue in section 18.208(b). The hearing officer shall consider the factors in section 18.205(c) in determining whether the amount of civil penalties assessed is reasonable. A hearing officer may reduce the daily rate of civil penalties assessed by the Director's Notice and Order, but the hearing officer may not eliminate a daily civil penalty or award a nominal civil penalty against a responsible person on any day the hearing officer finds that the responsible person committed a violation.

(c) If the hearing officer is required to issue an AEO pursuant to this section the AEO shall order a responsible person to pay within 10 days of the order, the amount of civil penalties due as of the date of the hearing. If requested by a Director and warranted by the evidence an AEO may also establish a deadline by which a responsible person shall: (1) cease any violation subject to enforcement under this chapter and/or (2) take corrective action to prevent further violations.

(d) If the hearing officer determines the Director, who issued the Notice and Order, is the prevailing party, the AEO shall also assess the County's administrative costs of the hearing against the responsible person and shall add the costs to the amount of any civil penalty a responsible person is ordered to pay.

(e) A hearing officer may also schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the AEO.

(f) When a Director issues an AEO pursuant to section 18.210(b) the Director shall state in the AEO:

(1) The Director has issued an AEO,

(2) The responsible person is ordered to pay the amount of civil penalties assessed within 10 days of the date of the order,

(3) When applicable, the responsible person is ordered to cease any ongoing violation by the date provided in the order, and

(4) When applicable, the responsible person is ordered to take corrective action by the date provided in the order.

(g) An AEO shall be served upon a responsible person as provided in section 18.206.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

(a) After the responsible person is served with an AEO, the Director shall monitor the violations and determine compliance.

(b) If a responsible person fails to comply with the terms and deadlines set forth in an AEO, the Director may use all available legal means to obtain compliance and to recover the civil penalties owed. These means include, but are not limited to, the following:

(1) The County may refer the debt to the Auditor and Controller for collection;

(2) The County may file a civil action and/or

(3) The County may record an AEO as a lien against the real property on which the violation is located in accordance with the procedures found in Section 18.214.

(c) It shall be unlawful for a person who has been served with an AEO to fail to comply with the Order.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

Any person against whom an AEO has been entered may obtain review of the order by filing a petition for writ of mandate with the San Diego County Superior Court in accordance with the timelines and procedures set forth in California Code of Civil Procedure Section 1094.5.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08)

If the responsible person fails to pay civil penalties in an AEO the County may record the order as a lien against the real property upon which a violation is located in accordance with the following procedures:

(a) Before recording, the Director shall serve the responsible person with a Notice of Intent to Record an AEO which informs the responsible person that recording the order will result in a lien against real property unless the responsible person pays the amount due within 30 days from the date of the notice. The Director shall serve the Notice of Intent to Record as provided by Section 18.206. The Notice of Intent to Record may be served at the same time as the AEO.

(b) If the responsible person fails to pay the amount due in full by the due date the County may record the AEO as a lien. The lien shall attach upon recording the order in the Office of the County Recorder. The lien shall continue until the amount of the lien is paid in full and the violations listed in the AEO are corrected.

(c) Notice of recording the AEO as a lien may be provided to the responsible person as provided by Government Code section 27297.5.

(Added by Ord. No. 9889 (N.S.), effective 10-26-07; amended by Ord. No. 9925 (N.S.), effective 4-11-08; amended by Ord. No. 10211 (N.S.), effective 6-1-12)