San Jose Municipal Code Part 17 Administrative Enforcement

A. This part provides for administrative citations that are in addition to all other legal remedies that may be pursued by the city to address any violations of the minimum compensation requirements of this chapter.

B. Use of this part shall be at the sole discretion of the city.

(Ord. 28432.)

Any person claiming a violation of this chapter may file a complaint with the city. The city may, in its sole discretion, investigate and address any alleged violation of this chapter's requirements. However, the city's failure to investigate an alleged violation or to otherwise enforce any of the provisions of this chapter shall not create any right of action or right to recover damages from the city by any person, including but not limited to an aggrieved employee.

(Ord. 28432.)

The director shall audit the records of each airport business to verify compliance with this chapter no less frequently than once in any two-year period.

(Ord. 28862.)

Where based upon a complaint or otherwise, if the director determines that an airport business has violated the minimum compensation requirements of this chapter, and only if the airport business has not violated the minimum compensation requirements of this chapter at any time within the immediately preceding three-year period, the director shall issue a written notice to the airport business that the violation is to be corrected within thirty days.

(Ord. 28862.)

A. For violations of the minimum compensation requirements of this chapter that are subject to a notice of violation from the director under Section 25.11.1715 above, in the event that an airport business has not demonstrated to the director within thirty days from a notice of violation that it has corrected the violation of this chapter, the director shall have the authority to issue an administrative citation to any person responsible for the violation.

B. For violations of the minimum compensation requirements of this chapter that are not subject to a notice of violation from the director under Section 25.11.1715 above and for any other violations of this chapter, the director shall have the authority to issue an administrative citation to any person responsible for the violation.

C. Each administrative citation shall contain the following information:

1. The date of the violation;

2. The section of this chapter violated and a description of the violation;

3. The amount of the fine and restitution for the code violation;

4. A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;

5. An order prohibiting the repeated occurrence of the code violation described in the administrative citation;

6. A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; and

7. The name and signature of the director.

(Ords. 28432, 28862.)

A. For violations of the minimum compensation requirements imposed pursuant to this chapter, the fine amount shall be equal to the difference between the actual amount of wages paid and the amount of wages that should have been paid for each covered employee paid less than the required minimum compensation wage rate. The restitution amount shall be equal to the difference between the actual amount of wages paid and the amount of wages that should have been paid.

B. For violations of the employee retention requirements imposed pursuant to this chapter, the fine amount shall be equal to three times the amount of wages unpaid for the period that the retention employee should have been but was not employed, but not to exceed one hundred dollars for each calendar day, or portion thereof, for each retention employee not employed. The restitution amount shall be equal to the amount of wages unpaid for the period that the employee should have been but was not employed.

C. The fine amounts collected under Subsections A. and B., above, shall be used to defray the cost of administration of the requirements of this chapter.

D. For other violations of this chapter, the fine amount shall be one hundred dollars per violation, except as otherwise specified in this chapter.

(Ords. 28432, 28862.)

A. Within thirty (30) days from the date of the issuance of the administrative citation, the fine shall be paid to the city and restitution shall be paid to the underpaid employee or employees.

B. Any administrative citation fine paid pursuant to subsection A shall be refunded in accordance with Section 25.03.470.D if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation.

C. Payment of a fine or restitution under this chapter shall not excuse or discharge any repeated occurrence of the code violation that is the subject of the administrative citation.

(Ord. 28432.)

A. Any recipient of an administrative citation may contest the violation set forth in the administrative citation or that he or she is the responsible party by completing a request for hearing form and returning it to the director within thirty (30) days from the date of the issuance of the administrative citation, together with an advance deposit of the fine or notice that a request for an advance deposit hardship waiver has been filed pursuant to Section 25.11.1760.

B. A request for hearing form may be obtained from the director.

C. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing.

D. If city staff submits an additional written report concerning the administrative citation for consideration at the hearing, then a copy of this report also shall be served on the person requesting the hearing at least five (5) days prior to the date of the hearing.

(Ord. 28432.)

A. Any person who intends to request a hearing to contest an administrative citation under this chapter or that he or she is the responsible party and who is financially unable to make the advance deposit of the fine as required in Section 25.11.1750.A may file a request for an advance deposit hardship waiver.

B. The request shall be filed with the director on an advance deposit hardship waiver application form, available from the director, within fifteen (15) days of the date of the administrative citation.

C. The requirement to deposit the full amount of the fine as described in Section 25.11.1750.A shall be stayed unless and until the director makes a determination not to issue the advance deposit hardship waiver.

D. The director may waive the requirement of an advance deposit set forth in Section 25.11.1750.A and issue the advance deposit hardship waiver only if the cited party submits to the director a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the director the person's actual financial inability to deposit with the city the full amount of the fine in advance of the hearing.

E. If the director determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the city within ten (10) days of the date of that decision or thirty (30) days from the date of the administrative citation, whichever is later.

F. The director shall issue a written determination listing the reasons for the director's determination to issue or not issue the advance deposit hardship waiver. The written determination of the director shall be final.

G. The written determination of the director shall be served upon the person who applied for the advance deposit hardship waiver.

(Ord. 28432.)

A. The city manager shall conduct the administrative citation hearing for violations of this chapter pursuant to this section and any rules and procedures for the conduct of hearings as adopted by the city manager.

B. No hearing to contest an administrative citation before the city manager shall be held unless the fine has been deposited in advance in accordance with Section 25.11.1750.A or an advance deposit hardship waiver has been issued in accordance with Section 25.11.1760.

C. A hearing before the city manager shall be set for a date that is not less than fifteen (15) days and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this chapter.

D. At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation.

E. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies.

F. The administrative citation and any additional report submitted by the director shall constitute prima facie evidence of the respective facts contained in those documents.

G. The city manager may continue the hearing and request additional information from the director or the recipient of the administrative citation prior to issuing a written decision.

(Ord. 28432.)

A. After considering all of the testimony and evidence submitted at the hearing, the city manager shall issue a written decision to uphold or cancel the administrative citation and shall list in the decision the reasons for that decision. The decision of the city manager shall be final.

B. If the city manager determines that the administrative citation should be upheld, then the fine amount on deposit with the city shall be retained by the city.

C. If the city manager determines that the administrative citation should be upheld and the fine has not been deposited pursuant to an advance deposit hardship waiver, the city manager shall set forth in the decision a payment schedule for the fine.

D. If the city manager determines that the administrative citation should be upheld, the city manager shall order that restitution be paid to the underpaid employee or employees.

E. If the city manager determines that the administrative citation should be canceled and the fine was deposited with the city, then the city shall promptly refund the amount of the deposited fine, together with interest at the average rate earned on the city's portfolio for the period of time that the fine amount was held by the city.

F. The recipient of the administrative citation shall be served with a copy of the city manager's written decision.

(Ord. 28432.)

Any person who fails to pay to the city the amount of any fine imposed pursuant to the provisions of this chapter on or before the date that fine amount is due shall be liable for the payment of an additional delinquency penalty. The delinquency penalty is equal to ten (10) percent of the amount of the fine due to the city, or ten (10) percent of the amount of the fine remaining unpaid to the city if a portion of the fine amount was timely paid. Interest shall accrue on all delinquent fine amounts, exclusive of delinquency penalties, at the rate of one half of (0.5) one percent per month, pro rata, of the total delinquent fine amount, from the date the fine amount becomes delinquent until the date that all delinquent fine amounts are paid to the city.

(Ord. 28432.)

A. The city may collect any past due administrative citation fine or late payment charge by use of all available legal means.

B. Any person who fails to pay any past due administrative citation fine or late payment charge shall be liable in any action brought by the city for all costs incurred in securing payment of the delinquent amount, including, but not limited to, administrative costs and attorneys' fees.

C. Collection costs shall be in addition to any penalties, interest, and/or late charges imposed upon the past due administrative citation fine.

D. Collection costs imposed under this section shall be added to and become a part of the underlying administrative citation fine.

(Ord. 28432.)

Exhaustion of remedies under this part shall not be a prerequisite to the filing of a civil action pursuant to Section 25.11.1700 of Part 17 of this chapter.

(Ord. 28432.)