Yolo County Municipal Code Ch. 21 Covid-19 Penalty

This chapter may be referred to as the “COVID-19 Penalty Ordinance.” (§ 3, Ord. 1523, eff. July 7, 2020)

(a) “Board” means the Yolo County Board of Supervisors.

(b) “Citation” or “Administrative Citation” means a citation issued pursuant to this chapter.

(c) “County” means the County of Yolo.

(d) “Days” means calendar days.

(e) “Enforcement Officer” means any peace officer, the County Health Officer and anyone designated by the Health Officer, the Director of Emergency Services and anyone designated by the Director, any Code Enforcement Officer from the Division of Code Enforcement in the Department of Community Services, the Environmental Health Director and anyone designated by the Director, and anyone identified by resolution of the Board.

(f) “Hearing Officer” means any person appointed to conduct any hearing or proceeding under the provisions of this chapter, unless otherwise specified, including, without limitation, the administration of oaths, the issuance of subpoenas, the receipt of evidence, and the entry of findings of fact and law.

(g) “Public Health Order(s)” shall have the meaning set forth in Sec. 6-21.03, below.

(h) “Responsible Party" means an individual or legal entity, or the agent or legal guardian of such individual or entity, whose action or failure to act violated a Public Health Order. This term specifically means and includes any of the following:

(1) Any person or entity that causes, maintains, permits, or allows a violation of this chapter.

(2) Any person or entity that owns, possesses, or controls any parcel of real property in the County upon which a violation of this chapter is maintained.

(3) Any trustee of any trust that holds legal title to any parcel of real property in the County upon which a violation of this chapter is maintained.

(4) Any person or entity that owns, possesses, operates, manages, or controls any business within the County that is responsible for causing or maintaining a violation of this chapter. (§ 4, Ord. 1523, eff. July 7, 2020)

All of the following are hereby incorporated by reference into this chapter and shall constitute “Public Health Orders,” as that term is used herein:

(1) County Health Officer orders relating to the COVID-19 pandemic, including those now in existence and any that later come into existence, and including all materials expressly incorporated by reference into such orders;

(2) All orders of the State Public Health Officer, state guidance documents issued for businesses and activities that have been adopted or approved by the County Health Officer, as well as any state guidance and directives posted on covid19.ca.gov that are described as mandatory, binding, or otherwise presented as enforceable obligations;

(3) Any site-specific protocol (including but not limited to a completed Social Distancing Protocol Worksheet) completed as required by state and local requirements. The failure to post such protocol in violation of any of the foregoing requirements shall also be a violation of his chapter.

All public health orders are hereby deemed orders and regulations of the Board of Supervisors pursuant to Government Code § 8634, shall constitute the law of the County within both unincorporated and incorporated areas, and are determined to be necessary for the protection of life and property during the local emergency declared in connection with the COVID-19 pandemic. Any violation of a public health order shall constitute an immediate danger to public health and safety pursuant to Government Code § 53069.4 and shall constitute a public nuisance. Nothing in this chapter shall be interpreted to make any conduct that does not violate a public health order a violation of this chapter. (§ 5, Ord. 1523, eff. July 7, 2020)

(a) Citations; each day a separate violation. This chapter may be enforced at any location within the County by an Enforcement Officer through the issuance of an administrative citation with penalties, as described more fully in Sec. 6-21.06, below. Each and every day, or portion thereof, that a violation of this chapter exists constitutes a separate and distinct offense.

(b) Powers of Enforcement Officer. As set forth more fully in Sec. 6-21.06, below, the Enforcement Officer shall have the authority and powers necessary to determine whether a violation exists and take appropriate action to gain compliance with the law and abate any violation. The Enforcement Officer shall further have authority to issue administrative citations and any other notices and orders necessary to obtain compliance and cost recovery, as well as the power to inspect public and private property as provided by law, impose fines and fees, and use the administrative remedies that are available under state law, this chapter, and other applicable provisions of the Yolo County Code

(c) Obstruction. In addition, every person who willfully resists, delays, or obstructs any Enforcement Officer or Hearing Officer in the discharge or attempt to discharge any duty of their office or employment in connection with this chapter shall be guilty of a misdemeanor, punished by a fine not exceeding $1,000, or by imprisonment in a County jail not to exceed one (1) year, or by both that fine and imprisonment.

(d) False statements. Further, every person who willfully states anything which that person knows to be false in any oral or written statement to an Enforcement Officer or Hearing Officer regarding the subject of an investigation, citation, or hearing occurring pursuant to this chapter shall be guilty of a misdemeanor, punished by a fine not exceeding $1,000, or by imprisonment in a County jail not to exceed one (1) year, or by both that fine and imprisonment.

(e) Litigation authority. The Office of the County Counsel is hereby authorized to file a civil action on behalf of the County to enjoin any violation(s) of this chapter and to obtain other appropriate relief needed to cease and abate such violations, as well as to recover all associated County costs, attorneys’ fees, and any fines or penalties imposed. No further Board authority or permission to initiate litigation is required to enforce violations of this chapter. (§ 6, Ord. 1523, eff. July 7, 2020)

(a) This chapter provides for enforcement proceedings that are supplemental to all other enforcement proceedings authorized by local, state or federal law, whether administrative, civil or criminal in nature. Any election to proceed under this chapter and shall be without prejudice to the County choosing to also proceed simultaneously or subsequently by pursuing different or additional means of enforcing the same violation. Election to issue a citation or take any other action authorized by this chapter shall be at the sole discretion of the Enforcement Officer, and nothing in this chapter shall be interpreted to mandate that an Enforcement Officer take certain steps in response to potential violations of public health orders or to preclude an Enforcement Officer from engaging informal oral or written requests to gain compliance.

(b) Nothing in this chapter alters or diminishes the authority of the Sheriff, local police departments, the County Counsel, or the District Attorney to address any such violations. Further, nothing in this chapter or decisions made hereunder, including decisions not to take an enforcement action authorized in this chapter, shall create any liability for the County or the Enforcement Officer. (§ 7, Ord. 1523, eff. July 7, 2020)

(a) Issuance. An Enforcement Officer may issue a citation to any responsible party violating any provision of this chapter. The Enforcement Officer may issue a citation for a violation not committed in their presence if they determine through investigation, including but not limited to credible input from County staff, that the responsible party did commit or is otherwise responsible for the violation.

(b) Penalties. Penalties (fines) for administrative citations issued pursuant to this chapter shall be as follows:

(1) The civil penalty for each non-commercial violation shall be a fine not to exceed $500. The minimum amount of any such fine shall be $25.

(2) The civil penalty for each violation involving a commercial activity shall be a fine not to exceed $10,000. The minimum amount of any such fine shall be $250.

(c) Factors in setting amount. In determining the amount of a fine pursuant to subsection (b), above, the Enforcement Officer shall consider:

(1) The gravity of the public health risk posed by the violation;

(2) Whether the responsible party has been previously counseled regarding the violation;

(3) For a violation arising from commercial activities, whether the violation is likely to result in increased revenue or avoided costs;

(4) Whether the violation is the subject of a prior citation;

(5) Whether the responsible party is making good faith efforts to achieve and maintain compliance with public health orders; and

(6) Any other matters relating to the nature, circumstances, extent, and gravity of the violation.

For a citation that includes one (1) or more violations arising from commercial activity, fines imposed for each day of violation shall automatically double, up to the maximum amounts set forth above.

(d) Grace period. If a violation is capable of being cured (i.e., is an ongoing violation and the responsible party has the apparent ability to effect a resolution), an administrative citation may include a grace period to cure the violation(s) and avoid the civil penalty set forth in the citation. The grace period may range from twenty-four (24) to seventy-two (72) hours from the date of the citation. In determining whether to provide a grace period and in determining the length of any grace period included in a citation, the Enforcement Officer shall consider the same factors provided above in connection with setting a fine amount. All matters relating to grace periods are within the sole discretion of the Enforcement Officer and are not appealable.

(e) Compliance reporting following grace period. The responsible party must cure each cited violation and must report to the Enforcement Officer when each cited violation is cured prior to expiration of the grace period. Each such report must include the responsible party’s contact information and availability information sufficient to ensure the Enforcement Officer can verify compliance within seventy-two (72) hours of the date of cure.

(f) Payment of administrative fines. All fines and fees shall be payable to the County in accordance with the procedures specified in this chapter, unless otherwise directed in the citation. Fines shall be paid to the County within thirty (30) days from the date of service of the administrative citation, unless an appeal is properly requested. If an appeal is properly requested and the fine is upheld or reduced at that administrative hearing, then the confirmed fine amount shall be paid to the County within thirty (30) days from the date of service of the decision. Payment of the fines and fees shall not excuse the failure to correct the violation or bar further enforcement action by the County.

(g) Administrative fees. The County may adopt one or more administrative fees to recover the costs associated with the issuance, enforcement, processing, and collection of administrative citations. The administrative fees shall be established by resolution of the Board. The administrative fees shall be assessed on each administrative citation and collected in the same manner and at the same time as the civil penalty; however, the administrative fees shall be assessed only once per administrative citation.

(h) Late fee; collection costs. Any person who fails to pay any fine or administrative fee imposed pursuant to the provisions of this chapter shall be liable for the payment of a late fee. The late fee shall be in an amount established by resolution of the Board. In addition to the administrative fee and late fee, the County is entitled to recover all costs, expenses, fees, and attorneys’ fees associated with collecting upon any administrative fines, fees, or costs authorized by this chapter. (§ 8, Ord. 1523, eff. July 7, 2020)

(a) Contents. Each citation issued under this chapter shall contain:

(1) The date of the violation.

(2) The name of the responsible party being cited.

(3) The address or a description of the location where the violation occurred.

(4) Identification and a brief description of the public health order(s) requirements violated by the responsible party.

(5) The grace period (if any) to cure each cited violation in order to avoid a fine, along with an order that the responsible party report to the Enforcement Officer when each cited violation is cured, along with the responsible party’s contact information, in order for the Officer to verify compliance promptly after the correction.

(6) The amount of the fine for each cited violation that will be imposed if the cited violation is not cured within the grace period (if any). If there is no grace period, the fine shall be immediately imposed.

(7) A notice that the fine amount will automatically reaccrue (and for violations arising from commercial activity, double pursuant to Sec. 6-21.06, above) each day beyond the grace period (if any) that the cited violation persists, up to the maximum amount set forth herein.

(8) The amount of all other fees and charges authorized by this chapter.

(9) A brief statement that the violation determination and/or fine amount may be appealed, as follows:

To Appeal this Citation: The violations(s) identified in this Citation and the amount of fine imposed (if $1000 or greater) may be appealed within ten calendar days of service of the Citation by providing the Clerk of the Board of Supervisors (625 Court Street, Room 205, Woodland, CA) with a request in writing for an appeal. The request shall be entitled “REQUEST FOR APPEAL OF ADMINISTRATIVE CITATION” and must set forth the factual and/or legal basis for the appeal in detail sufficient to apprise the County of the nature of the appeal and general objections and arguments to be raised by the Responsible Party. All appeal requests shall include a deposit of $750 toward the costs of a hearing officer unless you include a request for waiver of the deposit concurrently with filing the appeal. The County Administrator may grant the waiver request if you provide sufficient evidence of an inability to pay. If your request is denied, you must provide the deposit within five calendar days or the appeal shall be deemed withdrawn. Any appeal that does not meet all of these requirements will be rejected following review by the Office of the County Counsel.

If you do not prevail on the appeal, the hearing officer will require you to reimburse all hearing costs incurred by the County, including the hearing officer’s fees and charges.

(10) A brief description of the fine payment process, including the 30-day timeframe to pay the fine and other fees and charges, the late fee for failure to pay on time, and that unpaid amounts may become a lien and special assessment against the real property where the violation occurred.

(11) The name and signature of the citing Enforcement Officer and appropriate contact information.

(b) Service. Service of a citation may occur by any of the following methods:

(1) Personal service upon the owner or other responsible party.

(2) First-class or certified mail to a responsible party’s business address, or last known personal address using data from the last equalized assessment roll or other reliable information available to the Enforcement Officer.

(3) For violations involving the use of real property owned or leased by a responsible party, by posting the notice in a conspicuous place at the property entrance.

(4) For any responsible party registered with the Secretary of State, by certified mail to that party’s agent for service of process at the address registered with the Secretary of State, or as otherwise permitted by law. For any such party required to register with the Secretary of State that has not designated an agent for service of process with the Secretary of State, then a notice may be served on that party by certified mail to the Secretary of State.

(5) By e-mail when an email address is provided by that party.

(6) In any other manner reasonably calculated to effectuate notice.

Service by posting shall be deemed effective at the time of posting. Service by mail or e-mail shall be deemed effective upon deposit in the mail or transmission of the e-mail. The failure of any responsible party to receive any citation served in accordance with this section shall not affect the validity of the citation nor any subsequent proceeding or action relating to the citation or the violation(s) identified therein. (§ 9, Ord. 1523, eff. July 7, 2020)

(a) To hear appeals of administrative citations issued pursuant to this chapter, the Board of Supervisors authorizes the use of a hearing officer appointed pursuant to Yolo County Code Section 1-5.09.

(b) Upon receipt of the written appeal, the matter shall be promptly set for a hearing before the hearing officer. The hearing will be conducted remotely using video technology, such as WebEx or ZOOM, unless the parties otherwise mutually agree to an in-person hearing with the concurrence of the hearing officer.

(c) Unless a hearing is waived by the County and the responsible party (appellant) in favor of a determination based upon written filings, including arguments and supporting evidence in the form of declaration testimony and other competent evidence, the hearing officer shall hold a de novo administrative hearing to determine whether the conditions described in the citation constitute a violation under this chapter and to review and decide any other matters properly appealed by the appellant. The hearing may be continued from time to time for good cause.

(d) The appellant shall be given an opportunity at the hearing to present and elicit testimony (including by cross-examination) and other evidence regarding matters properly appealed, including the existence of one or more violations and the administrative penalty amount (if $1000 or greater). Failure of the appellant(s) to appear and present evidence at the hearing shall be deemed a withdrawal of the request for hearing and shall constitute a failure to exhaust administrative remedies.

(e) The appellant may choose to be represented by an attorney; however, formal rules of evidence or procedure shall not apply, including rules relating to evidence, witnesses and hearsay. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The hearing officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will require an undue amount of time.

(f) The standard of proof shall be a preponderance of the evidence and the County bears the burden of proof to establish the existence of the violation, if placed in dispute by the notice of appeal. The burden of proof on all other matters shall be borne by the appellant.

(g) The hearing shall be conducted in the English language. The proponent of any testimony by a witness who does not proficiently speak the English language shall provide an interpreter certified by the state or Yolo County Superior Court at its sole cost.

(h) After the hearing, the hearing officer shall render his or her written decision affirming, reversing or modifying the determination that one or more violations occurred. If the violation is affirmed, the decision shall include a statement that the County is entitled to recover administrative penalties and any other fees, charges, or costs authorized by this chapter and included in the citation. The hearing officer may also reduce the amount of the administrative penalty if warranted, taking into consideration all evidence provided by the appellant (and any responsive evidence adduced by the County) in connection with the factors set forth in Sec. 6-21.06, above.

(i) A copy of the decision shall be served on the parties and shall be final and conclusive when signed by the hearing officer and served upon the County Counsel and the appellant. For service upon the appellant, the hearing officer shall effect service in the manner requested by the appellant or, if no manner of service is provided, pursuant to the service methods in Sec. 6-21.07, above, with the assistance of the County if desired.

(j) Payment of all fines, fees, charges, and costs specified in the hearing officer’s decision shall be made to the County within thirty (30) calendar days of service of the decision, unless timely appealed to the Superior Court. Any responsible party aggrieved by the decision of a Hearing Officer may obtain further review by filing appropriate materials with the Yolo County Superior Court in accordance with the timelines and provisions as set forth in California Government Code § 53069.4. The Hearing Officer’s decision shall constitute the final administrative order or decision of the County pursuant to Section 53069.4.

(k) Excepting the $750 deposit required at the time an appeal is filed, hearing officer fees and costs shall be advanced by the County. If the violation is affirmed, the hearing officer shall award the County reimbursement of all hearing expenses borne by the County, including the Hearing Officer’s compensation. If the Enforcement Action is only partially upheld and/or if the fine amount is reduced, the Hearing Officer may proportionately reduce the County’s reimbursement of hearing expenses in his or her sole discretion. If the enforcement action is dismissed entirely, then the County shall bear the hearing costs and reimburse any deposit provided by the appellant.

(l) The appellant may settle any appeal with the Office of the County Counsel at any time for good cause, without the need for approval by the Board of Supervisors. The County Counsel shall consult with the County Administrator and County Health Officer, or their designees, prior to entering into any settlement. The terms of all such settlements shall be publicly disclosed upon request. (§ 10, Ord. 1523, eff. July 7, 2020)

The County shall take all reasonable steps to ensure that the identity and personal information of any person making a complaint to the County concerning a violation of this chapter shall remain confidential. It is declared and found by the Board that the public interest served by encouraging complaints to the County without fear of retribution clearly outweighs the public interest served by disclosure of the complainant’s identity and information. (§ 11, Ord. 1523, eff. July 7, 2020)

All violations of this chapter constitute a public nuisance and associated enforcement costs are considered costs of abatement. All unpaid abatement costs may be secured by a nuisance abatement lien recorded on title to the property where the violation occurred and by special assessment placed on the tax bill of said property. All steps taken to impose a lien and create a special assessment shall comply with applicable requirements of state law. (§ 12, Ord. 1523, eff. July 7, 2020)