The procedures adopted in this chapter shall not replace, substitute
for, or in any way affect the administrative hearing board processes
created by the California codes, uniform codes and national codes
adopted by the city and the administrative hearings provided by such
codes shall be treated separate and apart from the administrative
appeal hearing procedures adopted herein.
(Ord. 870 § 2, 2004; Ord. 1002 § 1, 2010)
The administrative hearing officer ("hearing officer") shall
conduct all administrative appeal hearings of any timely and properly
filed appeal from an administrative citation pursuant to the procedures
set forth in this chapter. The hearing officer shall review all evidence,
documents, and written testimony and hear all oral testimony submitted
by the parties and render all decisions and findings in writing to
the appellant with a duplicate copy to the citing officer. The hearing
officer may decide to uphold the administrative citation, rescind
the citation in part or in its entirety, and/or reduce the amount
or waive payment of the administrative fine.
(Ord. 870 § 2, 2004)
The hearing officer's authority to hear and consider appeals
shall be limited to passing on only those appeals pertaining to matters
within his or her subject matter jurisdiction. The hearing officer
shall consider at the hearing on the appeal only those matters or
issues which are specifically raised by the appellant in his or her
appeal and which are relevant to the issues of the hearing. The hearing
officer shall not have the authority to waive any requirements of
the Municipal Code and/or any applicable statutes, rules, codes or
regulations, except as otherwise provided in this chapter.
(Ord. 870 § 2, 2004)
A notice shall be provided to each appellant either personally
or by certified mail, postage prepaid, return receipt requested ("hearing
notice"). The hearing notice shall indicate the date, time and location
of the administrative appeal hearing and include language indicating
that: (1) appellant may be, but needs not be, represented by an attorney;
(2) appellant may present any relevant evidence at the hearing and
will be given a full opportunity to cross-examine all witnesses testifying
against him or her.
(Ord. 870 § 2, 2004; Ord. 1002 § 3, 2010)
Proof of service of the hearing notice shall be certified at
the time of service by a written declaration under penalty of perjury
executed by the persons effecting service, declaring the date and
manner in which service was made.
(Ord. 870 § 2, 2004; Ord. 1002 § 4, 2010)
The citing officer shall prepare an administrative hearing packet
for the hearing officer to review prior to the hearing. The packet
shall include a copy of the administrative citation, a staff report,
and any evidence of the violation(s).
(Ord. 870 § 2, 2004)
At the administrative appeal hearing, the hearing officer shall
review all evidence, documents, and written testimony and hear all
oral testimony offered either in support of appellant's claim or in
support of the administrative citation, provided such evidence and
testimony is relevant to the issues of the hearing. The hearing officer
has the authority to determine the relevance of any evidence to the
issues of the hearing. The hearing officer also has the authority
to exclude unduly repetitious and cumulative evidence, regardless
of its relevancy.
(Ord. 870 § 2, 2004)
Each party appearing at the hearing shall have the following
rights: (a) to call and examine witnesses; (b) to introduce documentary
and physical evidence; (c) to cross-examine opposing witnesses; (d)
to impeach any witness regardless of which party first called the
witness to testify; (e) to rebut evidence; and (f) to be represented
by anyone who is lawfully permitted to do so.
(Ord. 870 § 2, 2004)
If the appellant fails to attend the scheduled administrative
appeal hearing, the hearing will proceed without appellant and he
or she will be deemed to have waived his or her rights to be orally
heard at the appeal hearing.
(Ord. 870 § 2, 2004)
Following the appeal of an administrative citation, the hearing
officer may decide to uphold the administrative citation, establish
a modified schedule for compliance, overturn some or all of the findings
of the citing officer and/or rescind the citation in part or in its
entirety, and/or reduce the amount or waive payment of the administrative
fine. In the event the hearing officer determines to rescind the administrative
citation in its entirety, the recipient of the administrative citation
shall not be required to pay the administrative fine imposed by said
citation.
(Ord. 870 § 2, 2004)
The hearing officer shall prepare and serve a written notice
of decision and compliance order ("decision and compliance order")
upon each appellant and the citing officer following the administrative
appeal hearing. The decision of the hearing officer shall be final,
except as otherwise provided by this chapter.
(Ord. 870 § 2, 2004)
The hearing officer shall serve the written notice of decision
and compliance order to each appellant within twenty calendar days
from the date the hearing is deemed closed. The hearing officer shall
also provide or cause to be provided a copy of the decision and compliance
order to the citing officer.
(Ord. 870 § 2, 2004)
The decision and compliance order for an administrative citation
shall state whether the administrative citation has been either upheld,
in full or in part, or rescinded, in full or in part. In addition,
the decision and compliance order shall contain a brief summary of
the evidence considered, findings of fact, a determination of the
issues presented, the effective date of the decision, and a compliance
order, if applicable, which shall specifically describe the actions
which shall be required to be taken to remedy the code violations
indicated in the decision and compliance order and shall require the
actions to be completed within a specified time period and by a specified
deadline. In addition, the decision and compliance order shall contain
a compliance order, if applicable, which shall require the administrative
citation recipient to pay all applicable administrative fines no later
than ten calendar days from the date of issuance of the notice of
decision and compliance order. The amount of the fine for which the
recipient shall be responsible shall be as set forth in the administrative
citation. Payment of the administrative fine shall be ordered to be
made to the issuing department or division unless otherwise directed
by the city.
(Ord. 870 § 2, 2004)
The hearing officer shall cause a copy of the notice of decision
and compliance order to be provided to each appellant either by causing
a copy of the decision and compliance order to be delivered to each
appellant personally or by causing a copy of said decision and compliance
order to be delivered to each appellant by certified mail, postage
prepaid, return receipt requested, and addressed to appellant at the
address shown on the appeal. A copy of the decision and compliance
order shall also be provided to the citing officer.
(Ord. 870 § 2, 2004)
The effective date of the hearing officer's notice of decision
and compliance order shall be as stated therein or, if none provided,
the date of the decision and compliance order.
(Ord. 870 § 2, 2004)
A.
Failure
to obey a notice of decision and compliance order shall be deemed
an infraction violation for purposes of this section. A fourth violation
and subsequent violations of this section within a twelve-month period
shall be deemed a misdemeanor.
B.
If,
after the notice of decision and compliance order becomes final, the
person(s) to whom the decision and compliance order is directed shall
fail, neglect or refuse to obey such order, the code compliance manager
or other authorized agent may: (a) cause such person to be prosecuted
for an infraction violation for the offense of contempt of the hearing
officer's decision and compliance order and/or (b) institute any appropriate
administrative or legal action or proceeding necessary to gain compliance.
C.
For
each day that the person(s) to whom the decision and compliance order
is directed fails, neglects or refuses to obey such order, a new offense
is committed.
(Ord. 870 § 2, 2004)
The prevailing party in any proceeding conducted pursuant to
this chapter and associated with the abatement of a public nuisance
shall be entitled to recovery of attorneys' fees incurred in any such
proceeding.
(Ord. 870 § 2, 2004)
