San Marcos Municipal Code Ch. 1.14 Administrative Citations and Fines

(a)

The City Council finds that there is a need for an alternative method of enforcement for ordinances, permits and entitlements, reviews, and City agreements. The City Council also finds that an appropriate method for enforcement of various violations is an Administrative Citation Program that will reduce the burden on the judicial system while providing full due process for those cited.

(Ord. No. 2006-1267, 6-27-06)

(b)

The procedures established in this chapter are in addition to criminal, civil or other legal remedies that may be available to the City of San Marcos to enforce the provisions of this Municipal Code and/or permits and entitlements, as defined in this chapter.

(Ord. No. 2006-1267, 6-27-06)

(c)

The City Council finds that administrative penalties, which are authorized by California Constitution Article XI, Section 7 and Government Code Section 53069.4, are an appropriate alternative method of enforcement of the provisions of this Municipal Code.

(Ord. No. 2006-1267, 6-27-06)

(d)

The City Council finds and determines that enforcement of the provisions of the San Marcos Municipal Code and enforcement of the conditions of entitlements or permits are municipal affairs as well as matters of purely local concern to the citizens of San Marcos.

(Ord. No. 2006-1267, 6-27-06)

(e)

The City Council finds that the adoption and implementation of this Administrative Citation Program is within the power and authority of the City of San Marcos and will achieve the following goals:

(Ord. No. 2006-1267, 6-27-06)

(1)

To protect the public health, safety, and welfare of the citizens of the City of San Marcos;

(2)

To help ensure compliance with the Municipal Code and State Codes, ordinances, permits and entitlements, reviews, and City agreements in a timely and efficient manner;

(3)

To provide for an administrative process to appeal the imposition of administrative citations and fines that will fully comport with due process;

(4)

To provide a method to hold parties responsible when they fail or refuse to comply with the provisions of the Municipal Code, ordinances, permits and entitlements, reviews, and City agreements in the City of San Marcos;

(5)

To reduce the burden on the judicial system and minimize the time and expense of defending the citation on the part of the person cited.

(a)

Administrative Citation means a written notice, on a form to be approved by the City Manager, which mandates corrective action and establishes a fine as a penalty for non-compliance.

(Ord. No. 2006-1267, 6-27-06)

(b)

City Agreement includes, but is not limited to, a development agreement, owner participation agreement, disposition and development agreement, road maintenance agreement, easement, license, other real property use agreement, and agreement to implement an ordinance, plan, permit, entitlement, or review approved by the City.

(Ord. No. 2006-1267, 6-27-06)

(c)

City Manager means the City Manager of the City of San Marcos, or his or her designee.

(Ord. No. 2006-1267, 6-27-06)

(d)

Enforcement Officer shall mean any person authorized by the City Manager to enforce the provisions of the San Marcos Municipal Code.

(Ord. No. 2006-1267, 6-27-06)

(e)

Hearing Officer means the person selected by the City Manager to conduct an administrative hearing pursuant to the provisions of this chapter.

(Ord. No. 2006-1267, 6-27-06)

(f)

Environmental Review includes, but is not limited to, a development review, environmental impact report, mitigated negative declaration, negative declaration, and determination of categorical exemption.

(Ord. No. 2006-1267, 6-27-06)

(g)

Municipal Code shall mean the San Marcos Municipal Code and/or any other statutes or authorities referenced and/or incorporated therein.

(Ord. No. 2006-1267, 6-27-06)

(h)

Permit or Entitlement includes, but is not limited to, a conditional use permit, sign permit, variance, specific plan, parcel map, subdivision map, building or grading permit, encroachment or right-of-way permit, business license, storm water permit, and/or any other permit or approval that is required or authorized by, or promulgated pursuant to, the San Marcos Municipal Code, City Agreement, Federal law, State law and/or any regulations promulgated thereunder.

(Ord. No. 2006-1267, 6-27-06)

(i)

Responsible Person means an individual, partnership, corporation, limited liability company, nonprofit corporation, trustee, association or any other legal entity, and who is any of the following:

(Ord. No. 2006-1267, 6-27-06)

(1)

The owner or occupant of real property;

(2)

The holder or the agent of the holder of any permit, entitlement, or review;

(3)

The party or the agent of a party to an agreement covered by this chapter;

(4)

The owner or the authorized agent of any business, company, or entity subject to this chapter; or

(5)

The parent or legal guardian of any such person under the age of 18 years and who violates any ordinance, regulation, permit, entitlement, review, or agreement described in Section 1.14.030.

(a)

Any person who violates any provision of the San Marcos Municipal Code or regulation of the City, any condition of approval of a permit or entitlement, any condition of an environmental review, or any term or condition of any City agreement made pursuant to the City's police power and regulatory authority may be issued an administrative citation by an Enforcement Officer as provided in this chapter. A violation of this Code includes, but is not limited to, all violations of the Municipal Code and the failure to comply with any condition imposed by any entitlement, permit, City agreement or environmental review issued or approved pursuant to this Code.

(Ord. No. 2006-1267, 6-27-06)

(b)

Each and every day that a violation of the Municipal Code, permit and/or entitlement exists Constitutes a separate and distinct offense. A separate citation may be issued for each day a violation occurs.

(Ord. No. 2006-1267, 6-27-06)

(c)

A civil fine shall be assessed by means of an administrative citation issued by the Enforcement Officer and shall be payable directly to the City of San Marcos.

(Ord. No. 2006-1267, 6-27-06)

(d)

Fines shall be assessed in the amounts specified by resolution of the City Council, or where no amount is specified, as follows:

(Ord. No. 2006-1267, 6-27-06)

(1)

A fine not exceeding $100.00 for a first violation;

(2)

A fine not exceeding $200.00 for a second violation of the same ordinance or permit within an 18-month period from the date of the first violation;

(3)

A fine not exceeding $500.00 for the third violation of the same ordinance or permit within an 18-month period from the date of the first violation;

(4)

A fine not exceeding $1,000.00 for each additional violation of the same ordinance or permit within an 18-month period from the date of the first violation.

(e)

A second or subsequent violation need only be of the same ordinance, term, or condition to require the larger fine, and need not involve the same personnel or property, provided that the same responsible person is cited. The fine amounts shall be cumulative where multiple citations are issued.

(Ord. No. 2006-1267, 6-27-06)

(f)

If the violation pertains to building, plumbing, electrical, or other similar structural or zoning issues that do not create an immediate danger to health and safety, then the responsible person shall be issued a warning only on the first violation. The warning will advise the responsible person of the nature of the violation and the date by which the violation must be corrected. The responsible person will be given 15 days to correct the violation. If the violation is not corrected within that time period, an administrative citation with a fine shall be issued. Notwithstanding the foregoing, an administrative citation may be issued without compliance with the prior notice requirement, or with a reduced period within which a violation must be corrected if such violation creates an immediate danger to health or safety.

(Ord. No. 2006-1267, 6-27-06)

(a)

An administrative citation may be issued to the responsible person by an Enforcement Officer for violations of the Municipal Code, permit or entitlement and/or City agreement in the following manner:

(Ord. No. 2006-1267, 6-27-06)

(1)

Personal Service. In any case where an administrative citation is issued:

(Ord. No. 2006-1267, 6-27-06)

a.

The Enforcement Officer shall attempt to locate and personally serve the responsible person and obtain the signature of the responsible person on the administrative citation.

(Ord. No. 2006-1267, 6-27-06)

b.

If the responsible person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or of subsequent proceedings.

(Ord. No. 2006-1267, 6-27-06)

(2)

Service of Citation by Mail. If the Enforcement Officer is unable to locate the responsible person, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a requested return receipt. Simultaneously, the citation may be sent by first class mail, postage prepaid. If the citation is sent by certified mail and returned unsigned, then service shall be deemed effective pursuant to first class mail, provided the citation sent by first class mail is not returned. The failure of any responsible party to receive a properly addressed administrative citation shall not affect the validity of the notice. Service of the administrative citation in the manner described above shall be effective on the date of mailing.

(Ord. No. 2006-1267, 6-27-06)

(3)

Service by Citation by Posting Notice. If the Enforcement Officer does not succeed in personally serving the responsible person, or by certified mail or regular mail, the Enforcement Officer shall post the administrative citation in a conspicuous place upon any real property within the City in which the City has knowledge that the responsible person has a legal and/or beneficial interest, and such posting shall be deemed effective service. Failure of a posted notice to remain in place after posting shall in no way affect the validity of the citation or the subsequent posting.

(Ord. No. 2006-1267, 6-27-06)

(b)

The Enforcement Officer must complete a declaration regarding the date, time and manner of service of the citation.

(Ord. No. 2006-1267, 6-27-06)

(a)

Each administrative citation shall contain the following information:

(Ord. No. 2006-1267, 6-27-06)

(1)

Date, approximate time, and address or detailed description of the location where the violation(s) was observed;

(2)

The Code Sections or conditions violated and a description of the violation(s);

(3)

An order to the responsible person to correct the violations within the time specified in Section 1.14.030, above, if applicable, and an explanation of the consequences of failures to correct the violation(s);

(4)

An order prohibiting the continuation or repeated occurrence of the violation described in the administrative citation;

(5)

The amount of the fine for the violation(s);

(6)

An explanation of how the fine shall be paid and the time period by which it shall be paid;

(7)

A notification that payment of the fine does not excuse or discharge the failure to correct the violation and does not bar further enforcement action by the City;

(8)

A statement that if the fine is not timely paid, a late payment penalty of 25 percent of the amount of the fine will be added to the fine;

(9)

Identification of rights of appeal, including the time within which the citation may be contested and the place to obtain a request for hearing form to contest the administrative citation; and

(10)

The name and signature of the Enforcement Officer, the name and address of the responsible person, and, if possible the signature of the responsible person.

(a)

Upon receipt of an administrative citation, the responsible person must do the following:

(Ord. No. 2006-1267, 6-27-06)

(1)

Correct the violation by the correction date on the administrative citation; and

(2)

Pay the specified fine to the City within 30 days from the date the administrative citation is served. All fines assessed shall be payable to the San Marcos City's Treasurer. Payment of a fine shall not excuse or discharge the failure to correct the violation(s) nor shall it bar further enforcement action by the City; or

(3)

Contest the administrative citation and request an Administrative Hearing within 30 days from the date the administrative citation is served.

(a)

Any recipient of an administrative citation may contest that there was a violation of the Municipal Code or that he or she is the responsible person by completing a request for hearing form and returning it to the City within 30 days from the date the administration citation is served. The request must be made in writing, and may be delivered in person or by first class mail, postage prepaid. If the request is delivered by mail, it shall be deemed received as of the two days following the date of posting. The request shall be filed with the Code Compliance Division of the City Manager's Office. The person requesting the administrative review shall set forth, with particularity, the reasons he or she believes a violation did not occur or that the person cited is not the responsible party, together with a copy of the administrative citation in question. Failure to timely file a written request for an Administrative Hearing shall constitute a bar to any further administrative review rights.

(Ord. No. 2006-1267, 6-27-06)

(b)

The request for hearing form must be accompanied by either an advanced deposit of the fine or a request for hardship waiver. Any administrative citation fine which has been deposited shall be refunded if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation(s) that there was no violation(s) as charged in the administrative citation.

(Ord. No. 2006-1267, 6-27-06)

(a)

A person who files a request for an Administrative Hearing may also contemporaneously request a hardship waiver of the fine deposit. To seek such a waiver and obtain a separate hearing on the request, the responsible person must check the box indicating this request on the form contained on the reverse side of the citation and attach a statement of the grounds for the request. To be effective, the request for the hardship waiver and the request for an Administrative Hearing must both be received by the City Manager's office within 15 days of the date the citation is issued.

(Ord. No. 2006-1267, 6-27-06)

(b)

The request for waiver of the advance deposit must also be accompanied by a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the City Manager of the person's actual financial inability to deposit with the City the full amount of the fine in advance of the hearing.

(Ord. No. 2006-1267, 6-27-06)

(c)

The City Manager shall inform the party requesting the waiver whether the waiver was approved, by serving the party with a written determination of the request either personally or by mail at the addressed provided in the waiver application. The City Manager's determination on the waiver request shall be final and is not subject to appeal to the City Council.

(Ord. No. 2006-1267, 6-27-06)

(d)

If the waiver is denied, the responsible party shall submit the fine amount to the City within ten days. Failure to make the deposit by the time required shall be deemed an abandonment of the contest, and renders the fine delinquent.

(Ord. No. 2006-1267, 6-27-06)

(a)

The City Manager shall select a fair and impartial Hearing Officer from a panel of Hearing Officers selected by City Council for the administrative citation hearing or Administrative Cost Hearing. The Hearing Officer shall not be a current San Marcos City employee.

(Ord. No. 2010-1330, 3-9-10)

(b)

The employment, performance evaluation, compensation and benefits of the Hearing Officer, if any, shall not be directly or indirectly conditioned upon the amount of administrative citation fines or costs upheld by the Hearing Officer.

(Ord. No. 2010-1330, 3-9-10)

(a)

No hearing to contest an administrative citation before a Hearing Officer shall be held unless and until a request for hearing form has been completed and submitted, and, the fine has been deposited in advance, or an advance deposit hardship waiver has been approved by the City Manager.

(Ord. No. 2006-1267, 6-27-06)

(b)

A hearing before the Hearing Officer shall be set for a date that is not less than 15 and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The responsible party requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

(Ord. No. 2006-1267, 6-27-06)

(c)

At least ten days prior to the hearing, the recipient of an administrative citation shall be provided with copies of the citations, reports and other documents submitted or relied upon by the Enforcement Officer including documentation of any fee, cost or charge incurred by the City if the violation is for nuisance under Chapter 10.04.020. If the hearing is an Administrative Cost Hearing, a copy or copies of the itemized account of the cost of abatement shall be included with the Notice of Administrative Cost Hearing in accordance with Chapter 10.04.090. If, after copies of documents have been provided to the responsible party, the City determines to submit to the Hearing Officer additional documents, then a copy of such documents shall be provided to the party at least three days prior to the hearing or as the parties may otherwise agree. No other discovery is permitted. Formal rules of evidence shall not apply.

(Ord. No. 2010-1330, 3-9-10)

(d)

The Hearing Officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the responsible person has caused or maintained the violation(s). If the violation is for nuisance under Chapter 10.04.020, the Hearing Officer shall also consider all factors under Chapter 10.04.060. During an Administrative Cost Hearing, only the costs of abatement shall be considered. Courtroom rules of evidence shall not apply. Relevant hearsay evidence and written reports may be admitted whether or not the speaker or author is present to testify, if the Hearing Officer determines that the evidence is reliable. Admission of evidence and the conduct of the hearing shall be controlled by the Hearing Officer in accordance with the fundamentals of due process. The Hearing Officer may limit the total length of the hearing to one hour, and shall allow the responsible party at least as much time to present its case as is allowed the City.

(Ord. No. 2010-1330, 3-9-10)

(e)

At the hearing, the party requesting the hearing shall be given the opportunity to present, either themselves or through a representative, evidence and testimony concerning the administrative citation or costs of abatement. The City's case shall be presented by an Enforcement Officer or by any other authorized agent of the City.

(Ord. No. 2010-1330, 3-9-10)

(f)

The failure of the responsible party, either personally or through counsel, of an administrative citation to appear at the administrative citation hearing shall be deemed an admission that the citation in question was appropriately and validly issued, resulting in a forfeiture of the fine. The failure of the responsible party, either personally or through counsel, to appear at the Administrative Cost Hearing shall be deemed an admission that the Costs in question are appropriately and validly assessed.

(Ord. No. 2010-1330, 3-9-10)

(g)

The Hearing Officer may consolidate administrative citations issued to the same owner or responsible party.

(Ord. No. 2006-1267, 6-27-06)

(h)

The Hearing Officer may continue the hearing and request additional information from the Enforcement Officer or the recipient of the administrative citation or Notice of Administrative Cost Hearing prior to issuing a written decision.

(Ord. No. 2010-1330, 3-9-10)

(i)

The City Manager shall establish all appropriate administrative regulations for implementation of this chapter, the conduct of the administrative hearings and the issuance of decisions pursuant to this section.

(Ord. No. 2010-1330, 3-9-10)

(a)

After considering all of the testimony and evidence submitted at the hearing, the Hearing Officer may announce a decision orally, but in any event, shall prepare a written decision. The decision shall be provided to the parties within ten days of the hearing and shall either affirm the issuance of the citation as issued or dismiss the citation. The decision shall briefly state the reasons for the conclusion of the Hearing Officer. If the violation involves a determination of nuisance on real property under Chapter 10.04.020, the Hearing Officer shall include in the decision an Administrative Abatement Order as required under Chapter 10.04.060. If the hearing is an Administrative Cost Hearing, the Hearing Officer shall either confirm, reject or modify the abatement costs in accordance with Chapter 10.04.100. The City shall either make arrangements for personal service of the Notice of Decision for the Administrative Hearing to the responsible party, or for the mailing of the same by certified mail, postage prepaid, return receipt requested. The decision of the Hearing Officer shall be final. If the Hearing Officer determines that First Amendment rights are involved, the decision shall be issued orally at the conclusion of the hearing and shall be effective immediately. A written decision shall thereafter be issued as provided herein below.

(Ord. No. 2010-1330, 3-9-10)

(b)

If the Hearing Officer affirms the issuance of the administrative citation, then the deposit with the City shall be retained by the City. If a hardship waiver was granted, the decision shall set forth a payment schedule for the fine.

(Ord. No. 2006-1267, 6-27-06)

(c)

If the Hearing Officer determines that the administrative citation should be canceled, then the City shall refund any deposit within ten days of the Hearing Officer's decision.

(Ord. No. 2006-1267, 6-27-06)

(d)

The Hearing Officer shall not have the power to reduce the fine. The Hearing Officer may impose conditions and deadlines to correct any violations or require payment of any outstanding penalties.

(Ord. No. 2006-1267, 6-27-06)

(a)

The failure of any person to pay the civil fines imposed by an administrative citation within the time specified on the citation may result in the filing of a claim with the Small Claims Court or the Superior Court for recovery of the fine. The only issue to be adjudicated by the court shall be whether or not the fines were paid. A person cited may only obtain judicial review of the validity of the citation by writ of mandate after exhausting their administrative remedies by requesting and participating in an administrative hearing before a Hearing Officer. In the court action, the City may also recover its collection costs, including the cost of the Hearing Officer, and any court fees, according to proof.

(Ord. No. 2006-1267, 6-27-06)

(b)

In lieu of or in addition to the filing of a court action, the City may impose a Code Enforcement Lien, in the amount of the fine plus interest and late charges, on the real property upon which the violation occurs. Any lien imposed pursuant to this chapter shall attach upon the recordation of a Notice of Code Enforcement Lien in the Office of the County Recorder.

(Ord. No. 2006-1267, 6-27-06)

(c)

The City at its discretion may pursue any and all legal and equitable remedies for the collection of unpaid fines, interest and penalties. The use of one recovery method does not preclude the use of any other recovery method.

(Ord. No. 2006-1267, 6-27-06)

If the violation is corrected within a reasonable time after the decision of the Hearing Officer, the City Manager shall have the discretion to reduce any cumulative fines to a total of not less than $1,000.00 upon good cause shown by the responsible person. The determination of the City Manager shall be final and shall not be subject to appeal or judicial review. Fines shall not otherwise be reduced.

(Ord. No. 2006-1267, 6-27-06)

Any responsible party who fails to pay a fine imposed by this chapter on or before the date that payment is due, shall also be liable for the payment of a late payment charge of 25 percent of the fine. In addition, delinquent fines shall accrue simple interest at the rate of ten percent per year, excluding penalties, from the due date.

(Ord. No. 2006-1267, 6-27-06)

Any party aggrieved by an administrative decision of a Hearing Officer on an administrative citation may obtain review of the administrative decision by filing a petition for review with the San Diego Superior Court in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4. Said procedure shall fall under this chapter, notwithstanding that the term or condition being enforced pursuant to this chapter may not be a matter covered by Section 53069.4(a). Judicial review of a citation shall not be available without first participating in a hearing as provided in this chapter.

(Ord. No. 2006-1267, 6-27-06)

Failure to comply with any procedural requirement of this chapter, to receive any notice or decision specified in this chapter, or to receive any copy required to be provided by this chapter shall not affect the validity of proceedings conducted hereunder unless the responsible person is denied constitutional due process thereby.

(Ord. No. 2006-1267, 6-27-06)

The remedies afforded to the City by this chapter for violations of this Municipal Code are cumulative in nature and are in addition to any other remedy provided by this Municipal Code including, without limitation, those set forth in Chapter 1.12 of this Municipal Code.

(Ord. No. 2006-1267, 6-27-06)