The procedures adopted in this chapter for the selection of
administrative hearing officers 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)
The administrative hearing officer ("hearing officer") shall
conduct all administrative appeal hearings of any timely and properly
filed appeal from a notice of public nuisance and order to abate ("notice
and order") 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 notice and order, rescind the notice and order in part
or in its entirety, and/or reduce the amount or waive payment of the
public nuisance 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)
After the city has determined that a timely and complete appeal
of a notice and order has been filed, the city manager or designee
shall be appointed the hearing officer for purposes of presiding over
the particular hearing which corresponds with the appeal.
(Ord. 870 § 2, 2004; Ord. 1078 § 2, 2014)
Once the hearing officer is selected, the citing officer or
designee shall contact the hearing officer to schedule a date, time,
and location for the administrative appeal hearing. The administrative
appeal hearing shall be scheduled as soon as practicable but allowing
sufficient time for providing notice of the hearing.
(Ord. 870 § 2, 2004)
Once the date, time and place for the administrative appeal
hearing is determined, the citing officer or designee shall prepare
a notice of administrative appeal hearing ("hearing notice"), which
shall be in substantially the same form as follows:
"You are hereby notified that a hearing will be held before
the Administrative Hearing Officer at __________ on the _____ day
of _____, _____, at the hour of _____ to hear your appeal of the Notice
of Public Nuisance and Order to Abate served upon you. You may be
present at the hearing. You may be, but need not be, represented by
an attorney. You may present any relevant evidence at the hearing
and you will be given a full opportunity to cross-examine all witnesses
testifying against you."
(Ord. 870 § 2, 2004)
The citing officer or designee shall cause a copy of hearing
notice to be provided to each appellant either by causing a copy of
said notice to be delivered to each appellant personally or by causing
a copy of said notice to be delivered by certified mail, postage prepaid,
return receipt requested, and addressed to each appellant at the address
shown on the appeal.
(Ord. 870 § 2, 2004)
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. The declaration shall be affixed
to a copy of the hearing notice and retained by the citing officer
or designee.
(Ord. 870 § 2, 2004)
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 notice and order, 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 notice and order, 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 a notice of public nuisance and order
to abate, the hearing officer may decide to uphold the notice and
order, establish a modified schedule for compliance, overturn some
or all of the findings of the citing officer and/or rescind the notice
and order in part or in its entirety, and/or reduce the amount or
waive payment of the public nuisance administrative fine. In the event
the hearing officer determines to rescind the notice and order in
its entirety, the recipient of the notice and order shall not be required
to pay the public nuisance administrative fine imposed by said notice
and order.
(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 a notice of public nuisance
and order to abate shall state whether the notice and order 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 notice and order 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 notice and order. 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)
