The administrative appeals officer (appeals officer) shall conduct
all administrative appeal hearings of any timely and properly filed
appeal from any notice of public nuisance and order to abate (notice
and order) pursuant to the administrative appeal procedures set forth
in this chapter. The appeals officer shall review all evidence, documents,
and written testimony and hear all oral testimony submitted by the
parties at or before the scheduled administrative appeals hearing
and render all decisions and findings in writing to the appellant
with a duplicate copy to the code compliance chief or other authorized
agent. The appeals officer may decide to uphold the notice and order,
establish a modified schedule for compliance, or overturn the findings
and determinations set forth in the notice and order and not require
that the property owner or party otherwise responsible for the violation(s)
take any action otherwise required by the notice and order.
(Ord. 504 § 2, 1999; Ord. 776 § 80, 2016)
The appeals 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 appeals officer
shall consider at the hearing on the appeal only those matters or
issues which were specifically raised by the appellant in his or her
appeal and which are relevant to the issues of the hearing. The appeals
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. 504 § 2, 1999)
As soon as practicable after receiving the written appeal, the
appeals officer shall fix a date, time and place for the hearing of
the appeal at the earliest reasonable date at least ten calendar days
from the date the appeal was filed with the city clerk.
(Ord. 504 § 2, 1999; Ord. 570 § 3, 2002; Ord. 709 § 2, 2012)
As soon as practicable after scheduling the public nuisance
administrative appeal hearing, the hearing officer shall prepare a
notice of administrative appeals 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 Appeals Officer at _____________ on the _____________
day of _____________, _____________, at the hour of _____________
upon 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. 504 § 2, 1999)
The appeals officer shall provide a copy of the hearing notice
to the city clerk or designee who shall, at least ten calendar days
prior to the date scheduled for the appeal hearing, cause a copy of
the 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. The city clerk or designee shall
also provide a copy of said hearing notice to the issuing officer
or authorized agent.
(Ord. 504 § 2, 1999)
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 issuing officer
or authorized agent.
(Ord. 504 § 2, 1999)
The issuing officer or authorized agent shall prepare an administrative
hearing packet for the appeals 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). The staff report should include
a written case history, a summary of the different inspections, the
status of pending permit applications, a record of conversations or
correspondence with the property owner or person otherwise responsible
for the violation(s), and recommended corrections and repairs.
(Ord. 504 § 2, 1999)
The appeals officer shall hear any evidence offered either in
support of appellant's claim or in support of the notice and order,
provided such evidence is relevant to the issues of the hearing. The
appeals officer has the authority to determine the relevance of any
evidence to the hearing. The appeals officer also has the authority
to exclude unduly repetitious and cumulative evidence, regardless
of its relevancy.
(Ord. 504 § 2, 1999)
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. 504 § 2, 1999)
If appellant fails to attend the scheduled administrative appeals
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 appeals hearing.
(Ord. 504 § 2, 1999)
The appeals officer shall prepare and serve a written notice
of decision and compliance order ("decision and compliance order")
upon the appellant and the issuing officer or authorized agent following
the appeals hearing. The decision of the appeals officer shall be
final.
(Ord. 504 § 2, 1999)
The appeals officer shall serve the decision and compliance
order to each appellant within thirty calendar days from the date
the hearing is deemed closed. The appeals officer shall also provide
or cause to be provided a copy of the decision and compliance order
to the issuing officer or authorized agent.
(Ord. 504 § 2, 1999)
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 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.
(Ord. 504 § 2, 1999)
The appeals officer shall cause a copy of the decision and compliance
order to be provided to each appellant either by causing a copy of
said notice and order to be delivered to each appellant personally
or by causing a copy of said notice and order to be delivered by certified
mail, postage prepaid, return receipt requested, and addressed to
each appellant at the address shown on the appeal.
(Ord. 504 § 2, 1999)
Proof of service of the decision and compliance order 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 decision and compliance order and retained
by the issuing officer or authorized agent.
(Ord. 504 § 2, 1999)
The effective date of the appeals officer's decision and compliance
order shall be as stated therein.
(Ord. 504 § 2, 1999)
Any party contesting the imposition of the public nuisance administrative
fine may seek judicial review of the imposition of the fines by filing
an appeal pursuant to California Government Code Section 53069.4(b)(1)
after said party has exhausted all available administrative remedies
relating to the underlying violation.
(Ord. 504 § 2, 1999)
The decision and compliance order shall be filed in the office
of the county recorder to certify that: (a) the subject property is
being maintained in violation of the municipal code and/or applicable
statute, rule, code and regulation; and (b) the property owner has
been so notified.
(Ord. 504 § 2, 1999)
Whenever it is determined that the corrections ordered by the
decision and compliance order have been completed so that the premises
no longer exists in a condition that is in violation of the municipal
code and/or applicable statute, rule, code and regulation, a notice
of compliance shall be recorded in the office of the county recorder
certifying that all required corrections have been made and that the
subject premises is no longer being maintained as a public nuisance.
(Ord. 504 § 2, 1999)
The failure to comply with a final decision and compliance order
shall be deemed a misdemeanor offense. If, after the 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 enforcement chief or other authorized agent
may: (a) cause such person to be prosecuted for a misdemeanor violation;
and/or (b) institute any appropriate legal action or proceeding necessary
to abate or enjoin the conditions causing the nuisance.
(Ord. 504 § 2, 1999)
After a decision and compliance order becomes final, the issuing
officer or other authorized agent shall prepare a demand for payment
of all applicable public nuisance administrative fines if the city
determines that the person to whom the compliance order is directed
failed, neglected or refused to obey any orders or adhere to the terms
and conditions set forth in the compliance order.
(Ord. 504 § 2, 1999)
The demand for payment shall include all of the following, which
shall be consistent with the information contained in the final decision
and compliance order:
A.
The
name of the person(s) responsible for payment of the public nuisance
administrative fines;
B.
The
street address or a definite description of the location where the
violation occurred;
C.
The
deadline or specific date by which the violations were to have been
corrected;
D.
The
date of the follow up inspection where continuing violation conditions
were discovered;
E.
The
code violation(s) noted at the follow up inspection;
F.
The
amount of the public nuisance administrative fine which shall be immediately
due and payable;
G.
The
place where the fine must be paid; and
H.
A
description of the process by which the city may collect any unpaid
fines.
(Ord. 504 § 2, 1999)
The demand for payment may be in letter form or any other form which conveys the information set forth in Section 13.90.220.
(Ord. 504 § 2, 1999)
The demand for payment shall be served upon the person(s) responsible
for payment of the public nuisance administrative fines either personally
or by certified mail, postage prepaid, return receipt requested, at
their address as it appears on the last equalized assessment roll
of the county or as otherwise known to the issuing officer or authorized
agent. If an address of any such person does not appear on the last
equalized assessment roll or is not otherwise known to the issuing
officer or authorized agent, then a copy of the demand for payment
shall be addressed to such person(s) and mailed to the address of
the subject premises. The failure of any such person to receive a
copy of the demand for payment shall not affect the validity of any
proceedings or actions taken under this title. Service by certified
mail in the manner herein provided shall be affixed to the copy of
the demand for payment and retained by the issuing officer or authorized
agent.
(Ord. 504 § 2, 1999)
Service of the demand for payment which is personally served
shall be deemed completed at the time of such delivery. Service of
a demand for payment which is served by mail is deemed completed on
the date said demand is deposited in the mail.
(Ord. 504 § 2, 1999)
Proof of service of the demand for payment 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, together with any
receipt card returned in acknowledgment of receipt by certified mail
shall be affixed to a copy of demand for payment and retained by the
issuing officer or authorized agent.
(Ord. 504 § 2, 1999)
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. In no action, administrative proceeding, or special proceeding
shall an award of attorney's fees to a prevailing party exceed the
amount of reasonable attorney's fees incurred by the city in the action
or proceeding.
(Ord. 504 § 2, 1999; Ord. 776 § 81, 2016)
