A.
No person
shall violate or fail to comply with any provision or requirement
of this code or any other city ordinance. Any person who shall violate
or fail to comply with any provision or requirement of this code or
any other city ordinance, or a condition of any permit issued pursuant
to this code or any other city ordinance, shall be guilty of a misdemeanor,
unless (1) such a violation or failure is designated as an infraction
or is subsequently prosecuted as an infraction, in which case such
person shall be guilty of an infraction; or (2) such a violation or
failure is prosecuted as a civil administrative action pursuant to
this chapter. Any person, business, organization, corporation or other
entity that fails to pay an administrative fine or to comply with
an administrative order is guilty of a misdemeanor as provided in
this chapter. The determination of whether a violation will be prosecuted
criminally shall be subject to the sole discretion of the city attorney
or city prosecutor, depending on which official is responsible for
prosecution of such violations as crimes.
B.
Every
day any violation of this code or any other city ordinance shall continue
shall constitute a separate offense.
C.
Unless
otherwise specifically provided in this code or by the city council,
any person guilty of a misdemeanor for violation of a provision of
this code shall be punished by a fine of not more than one thousand
dollars, or by imprisonment for a period of not more than six months,
or by both such fine and imprisonment.
D.
Unless
otherwise provided by law, any person who has committed an infraction
shall be punished for a first violation by a fine not exceeding one
hundred dollars; by a fine not exceeding two hundred dollars for a
second violation of the same provision of this code occurring within
one year; and by a fine not exceeding five hundred dollars for each
additional violation of the same provision of this code occurring
within the same year.
Notwithstanding the foregoing, any person who has been convicted
of violating any provision of a building and safety code of the city,
or failing to comply with any of the requirements thereof, where such
violation or failure is deemed to be an infraction, is punishable
for a first violation by a fine not exceeding one hundred dollars;
by a fine not exceeding five hundred dollars for a second violation
of the same provision of this code occurring within one year; and
by a fine not exceeding one thousand dollars for each additional violation
of the same provision of this code occurring within the same year.
E.
Notwithstanding
any other provision of this code, when a person under eighteen years
of age is charged with a violation of this code, and such person is
issued a notice to appear in a traffic court of competent jurisdiction
as a result thereof, the charge shall be deemed to be an infraction
unless the minor requests that a petition be filed pursuant to Section
601 or 602 of the Welfare and Institutions Code.
F.
The
violation of any of the provisions of this code or any city ordinance
constitutes a nuisance and may be abated by the city through civil
process by means of restraining order, preliminary of permanent injunction
or in any other manner provided by law for the abatement of such nuisances.
The prevailing party in any action, administrative proceeding, or
special proceeding to abate a nuisance pursuant to this section shall
be entitled to its reasonable attorneys' fees if: (1) the city elected
to seek recovery of its own attorneys' fees at the initiation of the
action, administrative proceeding, or special proceeding; and (2)
the award of attorneys' fees does not exceed the amount of reasonable
attorneys' fees incurred by the city in the action or proceeding.
G.
The
city council declares that, should any provision, section, paragraph,
sentence or word of this code or city ordinance be rendered or declared
invalid by any final court action by a court of competent jurisdiction,
or by reason of any preemptive legislation, the remaining provisions,
sections, paragraphs, sentences and words of this code and such ordinance
shall remain in full force and effect.
(Ord. 1485 § 2, 2006; Ord. 1518 § 2, 2008)
Whenever any person is arrested for any violation of this code,
the arrested person shall be taken without unnecessary delay before
a magistrate who has jurisdiction over the offense and is nearest
or most accessible with reference to the place where the arrest is
made, when the person arrested:
A.
Fails
to present a driver's license or other satisfactory evidence of identity
for examination;
B.
Refuses to give a written promise to appear in court, in accordance with Chapter 1.08 of this code;
C.
Demands
an immediate appearance before a magistrate.
(Ord. 1485 § 2, 2006)
In addition to, or in place of, any other remedy which is allowed
by law, whether administrative, criminal, civil, or equitable, there
is hereby established an administrative penalty that may be imposed
in connection with any violation of this code.
(Ord. 1485 § 2, 2006)
The following words and phrases, when used in the context of
this chapter, shall have the following meanings:
means any city police officer, or other officer or employee
authorized by the city manager or otherwise by law, to issue administrative
citations pursuant to this chapter.
means the city manager of the city of Buena Park, or the
city manager's designee.
means any ownership interest of any person in real property
as evidenced by title or ownership documents or instruments which
have been recorded with the Orange County recorder's office or which
are on file with, or in possession of, any other governmental entity.
Legal interest shall also include the property interest of lessees
or tenants of real property, as well as all sublessors thereof.
means any natural person, business, organization, corporation
or other entity.
means any natural person, business, organization, corporation,
or other entity determined by a citing official to be responsible
for causing, maintaining, permitting, or allowing a violation of this
code. Responsible person includes but is not limited to any person,
business, organization, corporation, or other entity having an ownership
or possessory interest in property, or any agent thereof with actual
or apparent authority, possession, or control of property, as well
as any other person, business, organization, corporation or other
entity that creates, permits, or allows a violation of this code to
occur or be maintained.
(Ord. 1485 § 2, 2006)
Any person violating or who has violated any section of this
code that is subject to this chapter may be issued an administrative
citation by a citing official as provided in this chapter.
(Ord. 1485 § 2, 2006)
An administrative citation shall contain all of the following
information:
A.
The
date and location of the violation and the approximate time the violation
occurred or was detected;
B.
The
code section violated and a description of the violation;
C.
The
amount of the fine imposed for the violation, and the time within
which and the place at which the fine shall be paid;
D.
An order
prohibiting another occurrence of the code violation;
E.
A description
of the administrative citation review process, including the time
within which to contest the administrative citation and the place
from which to obtain a request for hearing form to contest the administrative
citation;
F.
The
name and signature of the citing official.
(Ord. 1485 § 2, 2006)
Except as provided below, the citing official may issue an administrative citation, on a form approved by the city manager or, pursuant to this chapter, serve a compliance order as described in Section 1.04.260 on a responsible person using either of the following methods:
A.
Personal
Service. The citing official may issue the administrative citation
or serve a compliance order by personal delivery thereof to a responsible
person. The citing official shall attempt to obtain on the administrative
citation or compliance order the signature of the responsible person.
If the responsible person or person served refuses or fails to sign
the administrative citation or compliance order, the failure or refusal
to sign shall not affect the validity of the citation, the compliance
order or of subsequent proceedings. Service shall be deemed effective
on the date of delivery.
B.
Mail.
The citing official may mail the administrative citation or compliance
order to the responsible person by registered mail. Service shall
be deemed effective on the date of mailing.
C.
Posting.
If the citing official does not succeed in serving the responsible
party personally or by registered mail, the citing official shall
post the administrative citation or compliance order on any real property
within the City in which the responsible person has a legal interest
and, when so posted, shall be deemed effective service as of that
date.
D.
Publication.
If the citing official does not succeed in serving the responsible
person personally, by registered mail or by posting, the citing official
shall cause the administrative citation to be published once a week
for four successive weeks in a local newspaper published, in English,
at least once a week. Service shall be deemed effective upon the final
date of publication.
(Ord. 1485 § 2, 2006)
A.
For
any violation of this code for which there is no specific administrative
penalty established in this code or by the city council, the fine
shall be in the amount of one hundred dollars for a first violation;
two hundred dollars for a second violation of the same provision of
this code occurring within a twelve month period; and five hundred
dollars for each additional violation of the same provision of this
Code occurring within a twelve month period.
B.
Administrative
fines assessed pursuant to an administrative citation are a debt owed
to the city.
(Ord. 1485 § 2, 2006)
The fine imposed pursuant to this chapter for a particular violation
and for any subsequent violation of the same code section, shall be
in the amount set forth, if any, in the bail schedule established
by resolution of the city council. The administrative fine shall be
paid to the within twenty days from the date of service of the administrative
citation. If, after a hearing requested pursuant to this chapter,
the hearing officer determines that the administrative citation should
be cancelled, the administrative fine shall be refunded in accordance
with the provisions of this chapter.
(Ord. 1485 § 2, 2006)
A.
Any
responsible person to whom an administrative citation is issued may
contest the citation by (1) completing a request for hearing form
and returning it to the finance department; and (2) either depositing
the administrative fine with the finance department or providing notice
that a request for an advance deposit hardship waiver has been filed
pursuant to this chapter. A request for hearing form may be obtained
from the finance department.
B.
Any
responsible person desiring an administrative hearing shall file with
the finance department a completed request for hearing form and the
administrative fine or completed hardship waiver form pursuant to
this chapter within twenty days from the date of service of the administrative
citation. In the event of any dispute as to the date of filing, the
date indicated on a file stamped copy in the finance department's
office or a finance department-file stamped copy in the possession
of the responsible party shall control. The responsible person's failure
to file the request for hearing form and the fine or hardship waiver
form within twenty days of the date of service of the administrative
citation shall constitute a waiver of the right to a hearing.
C.
The
person requesting the hearing shall be notified by registered mail
of the time and place of the hearing at least ten days before the
date of the hearing. Any documentation, other than the administrative
citation the citing official has submitted or will submit to the hearing
officer, shall be served on the person requesting the hearing by registered
mail at least five days before the date of the hearing.
(Ord. 1485 § 2, 2006)
A.
Any
responsible person who requests an administrative hearing and who
is financially unable to deposit the administrative fine as provided
in this chapter may file a request for an advance deposit hardship
waiver. The request shall be filed with the finance department on
an advance deposit hardship waiver application form, available from
the finance department, no later than twenty days after service of
the administrative citation. The responsible person's failure to file
a completed form, with all supporting documents, within twenty days
after service of the administrative citation shall constitute a waiver
of the right to receive a hardship waiver. In the event of any dispute
as to the date of filing, the date indicated on a file stamped copy
in the finance department's office or a finance department-file stamped
copy in possession of the responsible party shall control.
B.
The
city manager may issue an advance deposit hardship waiver only if
the person requesting the waiver submits a sworn affidavit, together
with any supporting documents, demonstrating to the satisfaction of
the city manager, the person's financial inability to deposit with
the city the full amount of the fine in advance of the hearing. The
city manager shall issue a written decision specifying the reasons
for issuing or not issuing the waiver. The decision shall be served
upon the person requesting the waiver by registered mail. The decision
shall be deemed served on the date of mailing. If the city manager
determines that the waiver is not warranted, the person shall remit
the full amount of the fine to the finance department within ten days
of service of the city manager's written decision. The city manager's
decision whether to issue a hardship waiver shall be final.
(Ord. 1485 § 2, 2006)
Only after a request for hearing form is received by the finance
department within the required period, and the responsible person
requesting the hearing has either deposited the administrative fine
in full or obtained an advance deposit hardship waiver (hereinafter
a "perfected appeal"), shall the city set the date and time for the
administrative hearing. The hearing shall be set for a date not less
than fifteen days nor more than sixty days after an appeal becomes
a perfected appeal. The city shall send notice of the date, time,
and place of the hearing to the person requesting the hearing by registered
mail at least ten days before the date of the hearing.
(Ord. 1485 § 2, 2006)
The responsible person requesting a hearing may request one
continuance, and the city may continue the hearing on its own initiative,
but in no event shall the hearing begin later than ninety days after
the date the appeal becomes a perfected appeal.
(Ord. 1485 § 2, 2006)
The city manager shall establish procedures for the selection
of administrative hearing officers. In no event, however, shall the
same person who issued the administrative citation or any person who
has been "adverse" to the recipient of the citation in any other legal
or administrative proceeding, be the administrative hearing officer.
(Ord. 1485 § 2, 2006)
Administrative hearings are informal, and formal rules of evidence
and discovery do not apply. Each party shall have the opportunity
to present evidence in support of that party's case and to cross-examine
witnesses. The city bears the burden of proof at an administrative
hearing to establish a violation of this code. Administrative citations,
compliance orders and any additional reports submitted by the citing
official shall constitute prima facie evidence of the facts contained
in those documents. The administrative hearing officer must use preponderance
of evidence as the standard of review in deciding the issues.
(Ord. 1485 § 2, 2006)
If the responsible person fails to attend the scheduled hearing,
the hearing will proceed without the responsible person, and the responsible
person will be deemed to have waived the right to an administrative
hearing.
(Ord. 1485 § 2, 2006)
The administrative hearing officer shall issue a written decision
entitled "administrative order" no later than thirty days after the
date on which the administrative hearing concludes. The administrative
order shall include the administrative hearing officer's written decision
to uphold, modify or cancel the administrative citation. The decision
shall set forth the reasons for the decision. If the administrative
hearing officer upholds the administrative citation, the city shall
retain the fine deposited by the responsible person. If the administrative
hearing officer upholds the administrative citation and the fine has
not been deposited pursuant to an advance deposit hardship waiver,
the administrative hearing officer shall specify in the decision a
payment schedule for the fine. If the administrative hearing officer
cancels the administrative citation, any fine deposited with the city
shall be promptly refunded. The administrative order shall be served
upon the responsible person by registered mail. Service shall be deemed
effective on the date of mailing. The administrative order shall become
final on the date of service, and shall provide notice to the responsible
person of the right to appeal as provided in this chapter.
(Ord. 1485 § 2, 2006)
Any person who fails to pay to the city, on or before the due
date, any administrative fine imposed pursuant to the provisions of
this chapter, shall be liable for the payment of the applicable late
payment charges as follows:
A.
For
payments received within thirty days after the due date, a late fee
in the amount of fifty percent of administrative fine due;
B.
For
payments received more than thirty days after the due date, a late
fee in the amount of fifty percent of administrative fine due, plus
an additional ten percent of the overdue administrative fine for each
month the payment is overdue. The maximum late fee shall be one hundred
percent of the overdue administrative fine.
(Ord. 1485 § 2, 2006)
The city may collect any past-due administrative fine or late
payment charges by use of any available legal means, including the
lien procedure set forth in this chapter.
(Ord. 1485 § 2, 2006)
Within twenty days after service of the decision of the administrative
hearing officer upon the responsible person, the responsible person
may seek de novo review of the decision by filing a notice of appeal
with the Orange County Superior Court. The responsible person shall
serve upon the finance department, either in person or by registered
mail, a copy of the notice of appeal. If the responsible person fails
to timely file a notice of appeal, the administrative hearing officer's
decision shall be deemed confirmed.
(Ord. 1485 § 2, 2006)
The responsible person seeking review of an administrative order
must pay a fee of twenty-five dollars, or such other fee as may be
established by city council resolution, to the Orange County Superior
Court. In the event that the court finds in favor of the responsible
person, the city will refund this fee to the responsible person.
(Ord. 1485 § 2, 2006)
Failure to comply with an administrative order after it becomes
final, or to pay an administrative fine or late payment charges, is
a misdemeanor. Filing a criminal misdemeanor action does not preclude
the city from using any other legal remedy available to gain compliance
with an administrative order, or to collect any past-due administrative
fine or late payment charges.
(Ord. 1485 § 2, 2006)
The conviction and punishment of any person for failure to comply
with the provisions of this chapter shall not relieve such person
from paying any tax, fee, penalty, or interest due and unpaid at the
time of such conviction, nor shall payment prevent a criminal prosecution
or a civil or administrative penalty for the violation of any of the
provisions of this chapter. All remedies shall be cumulative, and
the use of any one or more remedies by the city shall not bar the
use of any other remedy for the purpose of enforcing the provisions
of this chapter.
(Ord. 1485 § 2, 2006)
The administrative remedy provided in this chapter for any continuing
violation of this code related to building, plumbing, electrical,
mechanical or other similar structural or zoning issues, that does
not create an immediate danger to health or safety, may be exercised
in place of, or in addition to, any other remedy which is allowed
by law, whether administrative, criminal, civil, or equitable. If
a violation is not prosecuted criminally, the city may proceed with
civil or administrative proceedings pursuant to this chapter.
(Ord. 1485 § 2, 2006)
Whenever the citing official determines that there exists a
continuing violation of any provision of this code related to building,
plumbing, electrical, mechanical or other similar structural or zoning
issues, that does not create an immediate danger to health or safety,
the citing official shall issue or cause to be issued a written compliance
order to any responsible person, and such order shall be served by
the citing official as provided in this chapter.
(Ord. 1485 § 2, 2006)
A compliance order shall contain all of the following information:
A.
The
date and location of the violation and the approximate time the violation
occurred;
B.
The
municipal code section violated and a description of the violation;
C.
The
action required to correct the violation and the date by which such
action must be completed. Except as otherwise provided in this section,
the date for compliance shall not be less than thirty days from the
date the compliance order is served;
D.
The
consequences of failing to correct the violation, including a description
of the administrative hearing procedure and appeal process;
E.
The
time period after which administrative fines will begin to accrue
if there is not full compliance with the order;
F.
The
amount of the fine that will be imposed if there is not full compliance
with the order;
G.
The
name and signature of the citing official.
(Ord. 1485 § 2, 2006)
A.
If the
citing official determines that all violations specified in the compliance
order have been corrected within the time set forth in the order,
no further action shall be taken against the responsible person regarding
the violations.
B.
When
a compliance order is issued, if the responsible person provides written
notice that the violation has been corrected, and if the citing official
finds compliance, the citing official shall deem the date the written
notice was postmarked or personally delivered to the city official
to be the date the violation was corrected. If, however, a final inspection
confirms compliance before mailing or personal delivery of a written
notice, or if no written notice is provided, the date of final inspection
shall be the date the violation was corrected.
(Ord. 1485 § 2, 2006)
If the responsible person fails to fully comply with the compliance
order within the time specified therein, the citing official may issue
an administrative citation as provided in this chapter. The issuance
of the administrative citation does not obviate the responsible person's
obligation to fully comply with the compliance order.
(Ord. 1485 § 2, 2006)
A.
If an
administrative citation is appealed by the responsible person and
an administrative hearing is held as provided in this chapter, the
administrative hearing officer shall issue a written decision entitled
"administrative order" no later than thirty days after the date on
which the administrative hearing concludes. The administrative hearing
officer shall make findings within the administrative order regarding
the existence of the violation(s) specified in the compliance order,
and regarding whether the responsible person took the required corrective
action within the time period set forth in the compliance order. If
the administrative hearing officer concludes that the violation continues
to exist, the administrative order shall set forth a schedule for
correction. If the administrative hearing officer determines that
the violation(s) set forth in the compliance order did not exist,
or that the violation(s) was (were) timely corrected, all proceedings
regarding the violation(s) shall immediately cease and the administrative
citations shall be canceled. If the administrative hearing officer
cancels the administrative citation, any fine deposited with the city
shall be promptly refunded. The administrative order shall be served
upon the responsible person by registered mail. Service shall be deemed
effective on the date of mailing.
B.
The
administrative order shall impose administrative fines and costs as
provided in this chapter.
C.
The
administrative order shall become final on the date of service, and
shall notify the responsible person of the right to appeal as provided
in this chapter. The administrative order shall set a deadline for
compliance with its terms in the event that the responsible person
fails to file an appeal.
(Ord. 1485 § 2, 2006)
The administrative hearing officer shall assess against the
responsible person administrative costs for any violation found to
exist, or for any violation which was not timely corrected. The administrative
costs include any and all costs incurred by the city in connection
with prosecuting the violation, including but not limited to costs
of investigation, staffing costs in preparation for the administrative
hearing and for the hearing itself, attorneys' fees and costs and
costs for all inspections necessary to enforce the compliance order
and the administrative order. The administrative order shall specify
the date by which the costs must be paid to the city.
(Ord. 1485 § 2, 2006)
A.
If the
responsible person fails to satisfy in full the assessed administrative
fines and costs by the time specified in the administrative order,
and no timely appeal of the administrative order has been filed with
the Orange County Superior Court, the city may recover the outstanding
fines and costs by imposing a lien against the real property on which
the violation occurred.
B.
Prior
to recording the lien with the Orange County Recorder's Office, the
city council shall conduct a hearing to hear any protest or objection
to the lien. The citing official shall serve notice of the hearing
upon the owner of record of the real property, based on the last equalized
assessment roll or the supplemental roll, whichever is more current.
The notice of hearing shall include the time, date, and place of the
hearing, and shall be served upon the owner of record by certified
mail return receipt and by first class mail at least ten days before
the date of the hearing. If the owner of record, after diligent search,
cannot be found, the notice may be served by posting a copy thereof
in a conspicuous place upon the property for a period of ten days
and by publication of the notice at least ten days prior to the hearing
in a newspaper of general circulation published in Orange County and
distributed within the city. If there is no such newspaper, then service
of the notice may be provided in any manner authorized by law.
C.
If the
city council determines that the lien should be imposed, then the
citing official shall prepare and file with the finance department
a report stating the amount due and owing.
D.
After
the report is filed with the finance department, the citing official
may cause the lien to be recorded with the county recorder. Once recorded,
the lien shall have the force and effect and priority of a judgment
lien.
E.
The
remedies set forth in this section are not exclusive and may be used
in addition to those set forth elsewhere in this code or in state
law. The city may collect any past-due fines and costs by use of any
available legal means.
(Ord. 1485 § 2, 2006)
