City of Indian Wells, CA ADMINISTRATIVE CITATIONS AND AUTHORITY

Any individual or legal entity who is the owner, tenant, co-tenant, lessee, sub-lessee, occupant or other person with any right to possession of the real property, owner or authorized agent of any business, company, or entity, or the parent or the legal guardian of any person under the age of 18 years, who causes, permits or maintains a Code violation; or

Any individual, legal entity or the parent or the legal guardian of any person under the age of 18 years, who causes, permits or maintains a Code violation.

(Ord. 721 § 1, 2019; Ord. 725 § 3, 2020)

§ 1.20.030 Authority.

A Compliance Officer may issue an administrative citation or administrative fine to any responsible party for a violation of the Code.

Each and every day, or portion thereof, that a violation of the Code exists constitutes a separate and distinct offense.

Any responsible party issued an administrative citation shall be responsible for payment of any administrative fine imposed, the amount of which shall be set forth in subsection (d). The City Council may amend the amount of fines from time to time by a separate resolution.

When an administrative fine is imposed, it shall be imposed in the following amounts:

Infractions. For any violation of the Code specified by the Code as an infraction, the amount of the administrative fine shall be the amounts set forth in Government Code Section 36900 as follows: (i) a fine not exceeding $100 for a first violation; (ii) a fine not exceeding $200 for a second violation of the same Code provision within one year; (iii) a fine not exceeding $500 for each additional violation of the same Code provision within one year. Notwithstanding the foregoing sentence, the administrative fine for a violation of a Building and Safety Code provision that is specified by the Code as an infraction shall be as follows: (i) a fine not exceeding $100 for a first violation; (ii) a fine not exceeding $500 for a second violation of the same Code provision within one year; (iii) a fine not exceeding $1,000 for each additional violation of the same Code provision within one year of the first violation.

Misdemeanors. For any violation of the Code specified by the Code to be punishable as a misdemeanor or for which no fine is specifically provided, the amount of the administrative fine shall be $1,000.

(Ord. 721 § 1, 2019)

§ 1.20.040 Service procedures.

A Compliance Officer may issue an administrative citation on a form approved by the City Manager to the responsible party for a Code violation in one of the following manners:

Personal Service.

The Compliance Officer may attempt to locate and personally serve the responsible party and, if possible, obtain the signature of the responsible party on the administrative citation.

The failure or refusal to sign shall not affect the validity of the administrative citation or of subsequent proceedings.

Service by Mail.

the Compliance Officer may serve an administrative citation on the responsible party by mail. Service by mail shall be made by sending the administrative citation to the responsible party's address as shown on public records or as known to the City. The administrative citation shall be sent by certified mail and by first class U.S. mail return receipt. Service by mail under this subsection (b) shall be deemed complete on the third day following its deposit into the U.S. Postal Service as first-class mail (postage prepaid) or the date on which the certified return receipt is signed for as delivered, whichever date is earlier.

Service by Posting.

Service can also be made by placing the administrative citation in a conspicuous location on the subject property or on any real property in which the City has knowledge that the responsible party has a legal or equitable interest.

(Ord. 721 § 1, 2019)

§ 1.20.050 Contents of notice.

Each administrative citation or notice of violation shall contain the following information:

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

The Code provision(s), section(s) or condition(s) violated and a brief description of the violation(s); and

A description of the action required to correct the violation(s); and

For non-emergency health and safety violations, an order to the responsible party to correct the violation(s) by a correction date and an explanation of the consequences of failure to correct the violation(s); and

(e)

The amount of any applicable administrative fine imposed for the violation(s); and

(f)

An explanation of how any administrative fine shall be paid, the deadline by which it shall be paid, and the place to which the fine shall be paid; and

(g)

An order prohibiting the continuation or repeated occurrence of the Code violation(s) described in the administrative citation; and

(h)

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

(i)

The name and signature of the Compliance Officer and, if possible, the signature of the responsible party. For purposes of signature of the responsible party, signature of receipt of certified mail shall be deemed signature of the responsible party.

(Ord. 721 § 1, 2019)

§ 1.20.060 Satisfaction of administrative citation.

Non-Emergency Health and Safety Violations. When a Compliance Officer finds that a non-emergency health and safety violation has occurred, the Compliance Officer shall have the authority to issue a Notice of Violation and/or an administrative citation that provides for a reasonable period of time, not to exceed 30 calendar days, to correct or otherwise remedy the non-emergency health and safety violation prior to the imposition of an administrative fine. The responsible party may request an extension of the correction period, provided that a written request is filed with the Compliance Officer before the correction period ends. The Compliance Officer may, in his or her discretion, grant a reasonable extension of the period of time to correct the violation if the responsible party has supplied substantial evidence showing that the correction cannot reasonably be made within the correction period. If the responsible party provides proof to the Compliance Officer, or designee, that the violation has been corrected within the period of time provided for correction, no administrative fines shall be assessed, and the administrative citation shall be canceled. If the non-emergency health and safety violation has not been corrected or otherwise remedied within the correction period, the Compliance Officer shall have the authority to issue a second administrative citation notifying the responsible party of the violation and impose an administrative fine.

Upon receipt of an administrative citation, the responsible party shall do all of the following:

Correct the violation(s) within a reasonable period of time or, if possible, within any provided correction period; and

Pay any administrative fine(s) to the City within 15 calendar days from the correction date on the administrative citation. All administrative fines assessed shall be payable to the City of Indian Wells. Payment of an administrative fine shall not excuse or discharge the failure to correct the violation(s) nor shall it bar further enforcement action by the City.

If the responsible party fails to correct all of the violation(s) set forth in the administrative citation, subsequent administrative citations may be issued for the continued violation(s). The amount of the fine for failure to correct the violation shall increase at the rate specified in Section 1.20.030 or as specified by a separate resolution of the City Council.

(Ord. 721 § 1, 2019)

§ 1.20.070 Appeal of administrative citation.

Any person or party in receipt of an administrative citation may contest that there was a violation of the Code or that he or she is the responsible party by completing a letter of appeal and request a hearing and filing it with the Compliance Officer as instructed within 15 calendar days following the date of service of the administration citation, together with an advance deposit of the total amount of any administrative fine imposed, or the timely filing of a letter requesting an advance deposit hardship waiver pursuant to Section 1.20.080. Any administrative fine that 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) or that there was no violation(s) as charged.

In addition to the requirements listed in subsection (a), any appeal of the administrative citation shall include a detailed written explanation as to the grounds for the appeal. Appeals shall be limited to only these written grounds.

Failure to timely and properly file an appeal from an administrative citation shall constitute a waiver of all rights to an administrative appeal hearing.

Appeals of administrative citations shall be conducted pursuant to Section 1.20.090 of this Chapter.

(Ord. 721 § 1, 2019)

§ 1.20.080 Advance deposit of hardship waiver.

Any party that intends to request a hearing to contest an administrative citation and that is financially unable to make the advance deposit of the fine may request an advance deposit hardship waiver.

The request shall be filed with the Compliance Officer within 10 days following the date of the issuance of the administrative citation.

Upon the City's receipt of the request, the requirement of depositing the full amount of the administrative fine as described in Section 1.20.070(a) shall be stayed unless or until the Compliance Officer makes a determination not to issue the advance deposit hardship waiver.

The Compliance Officer may waive the requirement for advance deposit only if the Responsible Party submits a written declaration, under penalty of perjury, that such party is financially unable to deposit the total amount of the administrative fine in advance of the hearing.

(e)

If the Compliance Officer declines an advance deposit hardship waiver, the Responsible Party shall remit the deposit to the City within five days of the date of that decision or 15 days from the date of service of the administrative citation, whichever is later.

(f)

The Compliance Officer's decision to grant or deny the request shall be final and in writing with stated reasons for the grant or denial. The Compliance Officer shall cause the decision to be served on the cited party.

(Ord. 721 § 1, 2019)

§ 1.20.090 Hearing procedure—Fees.

A request for a hearing shall be deemed filed upon receipt of payment of any hearing fee with the Compliance Officer, which may be established by City Council resolution, and the letter of appeal and request for hearing, as required under Section 1.20.070(b). Any hearing fee shall not exceed the reasonable cost to the City for conducting the hearing.

The hearing shall be set for a date not less than 15 and not more than 90 calendar days following the date the hearing request is filed, unless otherwise agreed to in writing by the parties. The party requesting the hearing shall be notified of the time and place set for the hearing at least 15 calendar days prior to the date of the hearing.

The hearing shall be before a Hearing Officer, who shall only consider evidence relevant to the hearing matter and grounds specified in the appeal.

The party requesting the hearing shall be given a reasonable opportunity to testify and present witnesses and evidence concerning the hearing matter. Rebuttal shall also be permitted.

(e)

Failure to appear at the hearing shall constitute a forfeiture of any administrative fine and a failure to exhaust administrative remedies.

(f)

Any documents submitted by the City shall constitute prima facie evidence of the respective facts contained in those documents.

(g)

If the City submits an additional written report concerning the hearing matter to the Hearing Officer for consideration at the hearing, then a copy of the report shall also be served on the party requesting the hearing in accordance with Section 1.20.040 at least five days prior to the date of the hearing.

(h)

At least 10 days prior to the date of the hearing, the party requesting the hearing shall be provided with copies of the citations, reports and other documents submitted or relied upon by the City. No other discovery shall be permitted. Formal rules of evidence shall not apply.

(i)

The Hearing Officer may continue the hearing and request additional information from the City or the party requesting the hearing prior to issuing a decision.

(j)

After considering all testimony and evidence submitted at the hearing, the Hearing Officer shall issue a written decision within 10 days following the date of the hearing and shall list in the decision the reasons for that decision. The decision of the Hearing Officer shall be the final administrative decision of the City.

(k)

Service of such decision shall be made in accordance with Section 1.20.040, addressed to the party that requested the hearing at the address provided by that party on the notice of appeal and request for hearing letter.

(l)

The Hearing Officer shall not be required to provide transcriptions of hearings but shall make available tapes of hearings for a fee that does not exceed the reasonable cost of providing such tapes. Such fee shall be established by the City Council by a resolution.

(Ord. 721 § 1, 2019)

§ 1.20.100 Hearing Officer's decision.

If the Hearing Officer determines that the administrative citation should be upheld, and no timely appeal therefrom is taken, then the City shall retain the administrative fine amount on deposit with the City.

If the Hearing Officer determines that the administrative citation should be upheld, and no timely appeal therefrom has been taken, and the administrative fine has not been deposited pursuant to an advance deposit hardship waiver, the Compliance Officer shall set an administrative fine payment schedule.

If the Hearing Officer determines that the administrative citation should be canceled and the administrative fine has been deposited with the City, then the City shall refund the entire amount within seven business days following the date of the decision, including any fees applicable under Section 1.20.090.

An appeal from the Hearing Officer's decision to Superior Court shall be made pursuant to Government Code Section 53069.4(b).

(Ord. 721 § 1, 2019)

§ 1.20.110 Failure to pay administrative fines.

Administrative fines shall be a debt to the City and subject to all remedies for debt collection permitted by law. The failure of any party to pay administrative fines within the time specified on the administrative citation may result in the matter being referred to the City Attorney to file a case in court. Alternatively, the City may pursue any other legal remedy to collect the administrative fines, including, without limitation, referral to a collection agency.

Any party who fails to pay to the City any administrative fine imposed pursuant to this Chapter on or before the time specified on the administrative citation shall also be assessed late payment charges in the amount of 50% of the amount of the fine per citation, plus interest at the maximum rate permitted by law. If within 30 days after the time specified on the administrative citation the party fails to pay to the City any such administrative fine, plus late payment charges and interest, then that party shall also be assessed another late payment charge in the amount of 50% of the amount of the original fine, plus interest at the maximum rate permitted by law. The City shall notify the responsible party of late payment charges pursuant to Section 1.20.040 of this Chapter. The notice shall contain a statement that administrative fines and late payment charges may be collected as a lien or special assessment via the California Franchise State Tax Board against any real property owned by the responsible party in connection with the violation(s). In addition, the City can contract with a third-party agency for fee collection.

If the responsible party has failed to pay all administrative fines within a specified period following the issuance of the third administrative citation for the same violation in connection with the same real property or has failed to pay any late payment charges, the City may collect such debts as a lien or special assessment against the subject real property. Prior to taking either action, the Compliance Office shall serve notice on the record property owner, as identified on the last equalized County assessment roll, of the planned lien or special assessment. Such notice shall be made pursuant to Section 1.20.040 of this Chapter and shall specify that property subject to a special assessment may be sold after three years by the tax collector for unpaid delinquent assessments. Any party issued an administrative citation with an administrative fine, or any other party with a legal or equitable interest in the property that is the subject of the administrative fine, may contest the imposition of a lien or special assessment for such only by seeking a hearing pursuant to Section 1.20.090 of this Chapter. Failure to seek such a hearing shall constitute a waiver of that party's right to contest the imposition of a lien or special assessment.

In order to pursue a lien or special assessment against real property pursuant to this Chapter, the following must occur:

Annually or more often as determined by the City Council, the City Council shall, by ordinance or resolution, confirm the amounts of the liens and special assessments sought to be collected from each respective property; and

The City Council's confirmation shall include the amounts of the administrative fines, any late payment charges associated therewith and any applicable interest. Upon such confirmation, the City Council shall authorize the City staff to take any further steps necessary to enforce collection of the liens and special assessments, including, but not limited to, the following:

(i)

Requesting the County Recorder to record a notice of any lien confirmed by the City Council against the respective property, and

(ii)

Requesting the County Tax Collector on behalf of the City to collect any special assessment confirmed by the City Council.

(Ord. 721 § 1, 2019)

§ 1.20.120 Notices.

Any administrative citation and notice given under this Chapter shall be served on the responsible party, or when required, to other persons or entities pursuant to Sections 1.20.110(c) and 1.20.040 of this Chapter.

Failure to receive actual notice specified in this chapter does not affect the validity of proceedings conducted hereunder.

(Ord. 721 § 1, 2019)

§ 1.20.130 Right to judicial review.

Any party aggrieved by a decision of a Hearing Officer pursuant to this Chapter may obtain review of the decision by filing a petition for review with the Riverside County Superior Court in accordance with the timelines and provisions as set forth in the Government Code and/or the Code of Civil Procedure, as applicable.

Nothing contained in this Section shall be construed to prohibit any party from seeking prompt judicial review of a decision of a City official regarding the issuance, denial, suspension or revocation of a permit or license for an activity protected by the First Amendment of the United States Constitution as provided by Code of Civil Procedure Section 1094.8. The City shall comply with all requirements described therein for prompt judicial review.

(Ord. 721 § 1, 2019)

§ 1.20.140 Contracting with the Office of Administrative Hearings.

Pursuant to Government Code Section 27727, the City Manager or designee is authorized to enter into a contract with the Office of Administrative Hearings of the State of California for services for an administrative law judge or a Hearing Officer to conduct proceedings pursuant to this Chapter. The duties and responsibilities of the Hearing Officer shall be set forth in the contract. Reimbursement to the Office of Administrative Hearings for the services of Hearing Officers shall be made as provided in the contract. If no provision for reimbursement is contained in the contract, reimbursement shall be made on a pro rata basis of actual cost to the Office of Administrative Hearings in providing the service including salaries, benefits, overhead and any travel expenses. Nothing contained in this Section in any way inhibits, limits, or otherwise restricts the City Manager's authority to enter into a contract with any private individual or entity, other than the Office of Administrative Hearings, to serve as the professional, qualified, and independent Hearing Officer.

(Ord. 721 § 1, 2019; Ord. 725 § 4, 2020)

§ 1.20.150 Alternative remedies.

In addition to, or as an alternative to the administrative proceedings set forth in this Chapter, the City may abate a public nuisance by any or all of the following:

An inspection warrant issued under Code of Civil Procedure Section 1822.050 et seq.;

An abatement warrant issued in accord with the statutory requirements of Code of Civil Procedure Section 1822.050 et seq.;

(3)

A civil action filed in the Superior Court;

(4)

Civil or criminal contempt proceedings;

(5)

A criminal citation or criminal complaint.

In any such administrative proceeding, warrant proceeding, civil action, civil contempt proceeding, or other special proceeding brought to the City to abate a nuisance, the City shall be entitled to recover its staff time charges, expert or consultant fees and abatement costs. In addition, the prevailing party shall recover its reasonable attorney fees if the City elects, at the initiation of the individual action or proceeding, to seek recovery of its own attorney fees. The amount of attorney fees awarded in such action, administrative proceeding or special proceeding shall not exceed the amount of reasonable attorney fees incurred by the City in the action or proceeding. (California Government Code Sections 38773.1 and 38773.5) Further, in any civil action to abate a public nuisance, the City shall be entitled to recover civil penalties of up to $1,000 per violation for each day a violation of this Code has been proven to exist. In deciding the amount of civil penalty to be imposed, the Court may consider the following non-exhaustive list of factors:

The nature of the violation;

The duration of the violation;

(3)

The number of violations;

(4)

The impact of the violation upon the community; and

(5)

The willfulness of the responsible party's misconduct.

The remedies set forth in this Chapter may be sought from the property owner as shown upon the last available assessment roll, from the occupant or from any other responsible party.

(Ord. 721 § 1, 2019; Ord. 732 § 3, 2022)

§ 1.20.160 Violations.

Maintenance of Public Nuisance or Violation of Order of Abatement. The owner or other person having charge or control of any such buildings or premises who maintains any public nuisance defined in this Chapter, or who violates any order of abatement made pursuant to Section 1.20.050 is guilty of a misdemeanor.

Failure to Vacate. Any occupant or lessee in possession of any such building or structure who fails to vacate the building or structure in accordance with an order given as provided in this Chapter is guilty of a misdemeanor.

Removal of Posted Order or Notice. Any person who removes any notice or order posted as required in this Chapter is guilty of a misdemeanor.