The enforcement of this code and applicable state codes throughout
the city is an important public service and is vital to the protection
of the public's health, safety, and quality of life. There is a need
for alternative methods of code enforcement, and a comprehensive code
enforcement system uses a combination of judicial and administrative
remedies to gain compliance with code regulations. There is a need
to draft precise regulations that can be effectively applied in judicial
and administrative proceedings, and there is a need to establish uniform
procedures for administrative enforcement hearings.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
The following definitions apply in interpreting and enforcing
this chapter:
include administrative abatement, summary abatement, civil
penalties, notices of violation, administrative citations, recordation
of notices of violation and certificates of noncompliance, and the
withholding or revocation of permits as authorized by this code.
means the actual costs incurred by the city from first discovery
of a violation through the appeal process and until compliance is
achieved, including staff time inspecting property, documenting violations,
sending notices, and interviewing and responding to witnesses/complaining
parties; laboratory, photographic, printing and other expenses incurred
to document or establish the existence of a violation; scheduling
and processing of any administrative hearing and related actions;
and time and resources necessary to prepare for and participate in
any appeal hearing. The amount of administrative costs shall not exceed
the actual cost incurred in performing inspections and enforcement
activity, including permit fees, fines, late charges, and interest.
means an administrative hearing officer's written decision
and order.
means any neutral third party contracted by the city to preside
over administrative hearings.
means a monetary fine imposed by the city for acts or omissions
determined to violate this code.
means the director of any city department, including, but
not limited to, the Director of Community Development, the Director
of Public Works, the Director of Finance, and the Director of Environmental
Management.
means any city employee or agent of the city with the authority
to enforce any provision of this code.
means a notice of violation, a notice and order for civil
penalties, a notice of ineligibility for land development, a notice
of hearing, and any notice and order that may be issued by the city
pursuant to this code or any state code.
means a natural person, firm, association, business, trust,
organization, corporation, partnership, company, or other entity,
which is recognized by law as the subject of rights or duties.
means a person in charge of a premises or location, or a
person responsible for an event or incident, and includes any of the
following:
A person who owns a property where a violation exists.
A person in charge of or exercising control over a premises
where a violation exists.
A person renting, leasing, or using a premises where a violation
exists.
If a person is a minor under the age of 18, the parents or guardians
of the minor shall be the responsible party.
If a person is a business entity, the manager or on-site supervisor
where a violation exists shall be a responsible party.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
The procedures established in this chapter shall be in addition
to criminal, civil, or other legal and equitable remedies established
by law which may be pursued to address violations of this code or
applicable state codes, including cease and desist orders for violations
that pose a threat to health, safety, welfare, or the environment.
The use of this chapter shall be at the sole discretion of the city.
(Ord. CS-434 § 3, 2022)
A.
Unless
otherwise specified in this code, the City Manager or designee or
designated enforcement officer shall have the power to inspect public
and private property, and use the judicial and administrative remedies
available under this code and state law to enforce any violation of
any provision of this code, any permit or license approved pursuant
to any provision of this code, any condition of approval of a permit
or entitlement granted pursuant to any provision of this code, any
required environmental mitigation measure, any term or condition of
any city agreement pursuant to a police power, or any order issued
by or on behalf of the city or by an administrative hearing officer
contracted with the city.
B.
The City Manager or designee or designated enforcement officer shall have the power to issue the following notices, orders, and citations in accordance with the procedures set forth in Section 1.10.040 of this chapter, unless another procedure is specified in this section:
1.
Notice
of violation. A notice of violation may be issued to a responsible
party pursuant to the procedures of Article I of this chapter.
2.
Administrative
citation. An administrative citation may be issued to a responsible
party pursuant to the procedures of Article II of this chapter.
3.
Compliance agreement and order. At the discretion of the Code Enforcement Manager and in consultation with the City Attorney, a compliance agreement and order may be executed with a property owner and any responsible party(ies) to ensure ongoing and long-term actions to remedy any violation of this code or other violation as stated in Section 1.10.020(A) of this chapter. The compliance agreement and order may contain a compliance schedule with milestones, penalty payment plans and due dates, action plans, compliance meetings, or other measures necessary to achieve and maintain compliance.
4.
Notice
of hearing.
b.
For all other violations of this code or other violations as stated in Section 1.10.020(A) of this chapter, a designated enforcement officer may issue a notice of hearing to a property owner and any additional responsible party if cure or abatement of the violation(s) is not achieved by the compliance date provided on the notice, administrative citation, or order, or within three business days of issuance if no date is provided.
c.
The following procedures shall apply when a notice of hearing is
issued:
i.
The city shall file the notice of hearing with the City Clerk's office.
ii.
The hearing shall be scheduled, noticed, and administered in accordance with Article III of Chapter 1.10 of this code.
iii.
The person requesting the hearing shall be notified of the time and
place set for the hearing at least 10 calendar days prior to the date
of the hearing.
iv.
If the enforcement officer submits an additional written report concerning
the violation to the administrative hearing officer at the hearing,
then a copy of that report shall also be served on the person requesting
the hearing at least five calendar days prior to the date of the hearing.
v.
Within 15 days of receipt of the notice of hearing, the property owner or responsible party shall pay an advance deposit of the full amount of any administrative penalties owed or file a request for an advance deposit hardship waiver pursuant to Section 1.10.120(F) of this chapter. A failure to comply with the requirements of this provision will not prohibit the city from proceeding with the hearing.
5.
Stop
work order and stop use order.
a.
Reason for issuance. Without advance written notice, a stop work
order or stop use order may be issued to a property owner or responsible
party to immediately cease any construction, installation, operation,
or activity, or to immediately cease the use of a building, building
component, structure, or mechanical device for any of the following
reasons:
i.
There is reasonable cause to believe that the construction, installation,
activity, existing condition, or method of operation creates an imminent
danger to public safety or health as a result of a violation of this
code or of other applicable law.
ii.
The activity is being performed or conducted by an individual who
does not hold the appropriate license, certification, or registration
as required by this code or by other applicable law.
iii.
The construction, installation, activity, or operation has not been
approved or has not been issued the appropriate permit as required
by this code or by other applicable law.
iv.
Where a permit has been issued and no imminent danger circumstances
defined in Section 1.10.020(B)(5)(a)(i) of this chapter exist, the
City Attorney's office must review the stop work order or stop use
order before issuance to ensure the work or use is unlawful.
b.
Issuance of order.
i.
Unless otherwise specified in this code, a stop work order or stop
use order shall be issued only upon the review and approval of the
Director of Community Development or designee. This section is not
intended to conflict with, override, or interfere with other sections
of this code that provide the building official, City Engineer, Director
of Public Works, City Planner, or their designee with primary stop
work order authority and enforcement responsibility.
ii.
A stop work order or stop use order shall be in writing and shall
be served using the procedures in Section 1.10.040(A)(2) of this chapter,
requiring posting and mailing.
iii.
The stop work order or stop use order shall include at least all
of the following:
(A)
The date and location of the violation(s) and, if applicable,
the approximate time the violation(s) were observed.
(B)
The code section(s) violated and describe how the section(s)
were violated.
(C)
A description of the application and the extent of the order
describing the object, component, or activity covered by the order.
A stop work order or stop use order issued in relation to the construction
of a building may not extend to other activities or portions of a
building, structure, building component, or mechanical device that
is not directly associated with the reason for the stop work order
or stop use order.
(D)
A description of the action required to correct the violation(s)
and a requirement that the corrective action take place immediately.
(E)
A reference that the stop work order or stop use order shall
remain in effect until the enforcement officer or City Manager or
designee determines that the conditions of the order are fulfilled,
or until the order is rescinded or overturned by the City Manager
or designee.
(F)
The signature of the issuing enforcement officer and the Director
of Community Development or designee, or if issued pursuant to another
chapter of this code, the signature of the issuing building official,
City Engineer, Director of Public Works, City Planner, or their designee.
The City Attorney's office must also review any stop work order or
stop work order issued pursuant to Section 1.10.020(B)(5)(a)(iv) of
this chapter.
(G)
Instructions for submitting a request to appeal the stop work
order or stop use order to the City Manager or designee, consistent
with Section 1.10.020(B)(5)(c) of this chapter.
(H)
A reference to the potential consequences should the property
owner or responsible party refuse to immediately comply with the conditions
of the stop work order or stop use order, including criminal prosecution;
civil injunction; administrative abatement; additional administrative
citations; an administrative hearing requested by the city to resolve
the violations; suspension, revocation, or stay of issuance of municipal
permits or other city authorizations; recordation of notices of violation,
certificates of noncompliance, or notices of ineligibility for land
development; bonding requirements; and referral to other enforcement
authorities.
iv.
The city may post a sign or notice to the public regarding the issuance
of a stop work order or stop use order. The sign or notice shall be
posted in a conspicuous location and shall remain where posted until
the enforcement officer or City Manager determines that the conditions
of the order are fulfilled, or until the order is rescinded or overturned
by the City Manager.
v.
The property owner or responsible party must furnish to the city
any additional information, investigations and reports necessary to
resolve the stop work order or stop use order conditions. The property
owner or responsible party must pay for all expenses associated with
furnishing these items, as well as any additional staff time to resolve
the stop work order or stop use order conditions.
vi.
Any person who continues or allows prohibited work or a prohibited
use after a stop work order or stop use order has been issued by the
city, or who removes a stop work order or stop use order posted by
the city, is in violation of the stop work order or stop use order.
This offense will be treated as a violation of this code and may be
prosecuted as an infraction or misdemeanor at the discretion of the
City Attorney. The city may use any other available legal or equitable
remedy to recover any penalties, costs, fees, and obtain compliance
with the stop work order or stop use order, as provided in this code
or other applicable law.
c.
Appeal of stop work order or stop use order to the City Manager or
designee.
i.
The recipient of a stop work order or stop use order or any person
who is adversely affected by the order may request to appeal the order
to the City Manager or designee within 30 calendar days of posting
of the order.
ii.
A request to appeal a stop work order or stop use order shall be
in writing and shall include a statement of the specific reasons why
the person believes that the issuance of the order is incorrect or
inappropriate. Request to appeal forms may be obtained from the city's
website, the code enforcement division, or the department or division
specified on the stop work order or stop use order.
iii.
The request to appeal shall be filed with the department or division
specified on the stop work order or stop use order.
iv.
Hearing on appeal and decision of City Manager or designee.
(A)
The City Manager or designee shall set a date, time, and location
for the appeal hearing on a date no later than 10 business days after
the request to appeal has been filed, unless the parties stipulate
to a later date.
(B)
At the hearing, the party contesting the stop work order or
stop use order shall have an opportunity to testify and to present
evidence concerning the stop work order or stop use order. Formal
rules of evidence shall not apply during the hearing.
(C)
Any city-issued notices, administrative citations, and additional
report(s) submitted by an enforcement officer shall constitute prima
facie evidence of the respective facts contained in those documents.
(D)
The City Manager or designee may continue the hearing and request
additional information from the enforcement officer, the recipient
of the stop work order or stop use order, or the property owner prior
to issuing a written decision.
(E)
The failure of any person requesting to appeal a stop work order
or stop use order to appear at any scheduled appeal hearing shall
result in the dismissal of the appeal and a failure to exhaust administrative
remedies.
(F)
The failure of any person to file a request for appeal in accordance
with the provisions of this section shall constitute a waiver of the
person's rights to an administrative determination of the merits of
the stop work order or stop use order. If no request for appeal is
filed, the stop work order or stop use order shall be deemed a final
order.
(G)
The City Manager or designee shall issue a written decision
within five business days following an appeal hearing of a stop work
order or stop use order. The written decision shall include information
about appeal rights and procedures if the decision adversely affects
the person requesting the appeal.
d.
Administrative review hearing.
i.
A person adversely affected by the decision of the City Manager or designee under Section 1.10.020(B)(5)(c) of this chapter concerning a stop work order or stop use order may file an appeal of the decision to be reviewed by an administrative hearing officer, in accordance with the procedures of Section 1.10.120 of this chapter and Article III of Chapter 1.10 of this code.
ii.
A request for a hearing to review the decision of the City Manager
or designee regarding a stop work order or stop use order shall include
a statement of the specific reasons why the person believes the decision
is incorrect or inappropriate.
iii.
A request for a hearing to review the decision of the City Manager
or designee regarding a stop work order or stop use order shall be
denied if the request is received more than 30 calendar days after
issuance of the decision.
7.
Notice of intent to determine ineligibility for land development.
a.
Any person who fails to perform construction, grading, building,
or other work in accordance with a city-issued permit or who performs
construction, grading, building, or other work in violation of applicable
provisions of this code, a city-issued permit or order, conditions
of approval, or other regulatory requirements, along with the property
owner, may be served a notice of intent to determine ineligibility
for land development, which prohibits the continuation of development
or construction activities on the property where the violation occurred.
b.
The notice of intent required by this section must:
i.
Be served on the responsible party and property owner personally,
or posted on the property and mailed by certified mail and first-class
mail to the address shown on the most recent tax assessment roll;
ii.
State the city's intent to record a notice of ineligibility for land
development against the property;
iii.
Fix a location, time, and date, not less than 15 calendar days after
delivery of the notice, at which an administrative hearing will occur;
and
iv.
Explain that during the hearing the responsible party and property
owner may submit written or oral comments or reasons why a notice
of ineligibility should not be recorded.
c.
The ineligibility hearing must:
i.
Be held at the appointed time, or at a time agreed to by all parties;
ii.
Provide the responsible party and property owner an opportunity to
present written or oral comments or reasons why a notice of ineligibility
should not be recorded against the property;
iii.
Result in a determination of whether a violation occurred, whether
it has been remedied, and whether to record a notice of ineligibility
for land development; and
iv.
Comply with the hearing requirements of this chapter to the extent
those requirements do not conflict with the requirements of this section.
d.
A notice of ineligibility for land development that is recorded in
accordance with this section remains in effect until the enforcement
officer records a release of notice of ineligibility for land development.
A release of notice of ineligibility for land development may be recorded
when the responsible party implements all required plans and best
management practices (if applicable) and remedies all noncompliant
site conditions as described in the notice of ineligibility for land
development. During the effective dates of any notice of ineligibility
recorded in accordance with this section, no application for a building
permit, administrative permit, site plan, use permit, variance, tentative
parcel map, tentative map, parcel map, final map, or any other permit
for the development of the property on which the violation occurred
will be approved.
e.
This remedy is not intended to conflict with any other notices that
may be recorded against a property for violations of this code.
8.
Bonding requirement. A responsible party may be required to post a bond or other security instrument to assure the correction of a violation of any provision of this code or other violation as stated in Section 1.10.020(A) of this chapter.
9.
Referral to other enforcement authorities. Where required or appropriate, violations of this code or other violations as stated in Section 1.10.020(A) of this chapter may be referred to agencies having authority over the action constituting a violation.
C.
Each
type of notice, order, or citation authorized by this code may be
issued alone, or it may be combined with any other type of notice,
order, or citation.
D.
The
City Manager may establish rules and procedures necessary to implement
the provisions of this chapter.
E.
This
section is not intended to replace or override any enforcement powers
that are provided to other designated city employees in this code
or in any other applicable law.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
Failure to comply with any procedural requirement of this chapter,
to receive any notice, decision, or order specified in this chapter,
or to receive any copy required to be provided by this chapter does
not affect the validity of proceedings conducted under this chapter
unless the responsible person is denied constitutional due process
by the failure.
(Ord. CS-434 § 3, 2022)
An enforcement officer may issue a notice of violation to a
responsible party in response to any violation of any provision of
this code, any permit or license approved pursuant to any provision
of this code, any required environmental mitigation measure, any term
or condition of any city agreement pursuant to a police power, or
any order issued by or on behalf of the city or by an administrative
hearing officer contracted with the city. The notice of violation
shall include the following information:
A.
The
name of the record owner of the property.
B.
Street
address.
C.
The
code section(s), provision(s), condition(s), or term(s) violated.
D.
A description
of how the property's condition violates the applicable code section(s),
provision(s), condition(s), or term(s).
E.
A description
of necessary corrections to bring the property into compliance.
F.
A reasonable
deadline or specific date to correct the violations listed in the
notice of violation.
G.
If the notice of violation is issued for a public nuisance under Chapter 6.16 of this code, an advisement that the responsible party has 10 calendar days from the date of mailing of the notice of violation to file an appeal, or 10 calendar days from the date of personal service of the notice of violation if served using this method.
H.
A reference
to the potential consequences should the property remain in violation
after the expiration of the compliance deadline, including criminal
prosecution; civil injunction; administrative abatement; administrative
citations; an administrative hearing requested by the city to resolve
the violations; suspension, revocation, or stay of issuance of municipal
permits or other city authorizations; recordation of notices of violation,
certificates of noncompliance, or notices of ineligibility for land
development; bonding requirements; and referral to other enforcement
authorities.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
A.
Except
for an initial notice of violation, whenever a notice, order, or administrative
citation is required to be given under this code for enforcement purposes,
the notice, order, or administrative citation shall be served on a
responsible party by any of the following methods unless different
provisions are otherwise specifically stated to apply:
1.
Personal
service.
2.
Posting
the notice, order, or administrative citation conspicuously on or
in front of the property that is the subject of the violation and
subsequently mailing a copy to a responsible party in the manner described
in subsection (A)(3) of this section. The form of the posted notice,
order, or administrative citation shall be approved by the City Attorney
or designee.
3.
Certified
mail, postage prepaid, return receipt requested to the property address
and any other mailing address(es) on file with the county tax collector
and the county assessor. The city may, but is not required to, provide
this form of notice to any other known address for a responsible party.
a.
Simultaneous to service by certified mail, the same notice, order,
or administrative citation may also be sent by regular mail to the
property address(es) on file with the county tax collector and the
county assessor.
b.
If a notice, order, or administrative citation sent by certified
mail is returned unsigned, then service shall be deemed effective
pursuant to any regular mailing. However, if the notice, order, or
administrative citation sent by both regular mail and certified mail
are returned, the notice, order, or administrative citation must be
served pursuant to subsection (A)(1) or (A)(2) of this section.
c.
Service by certified or regular mail in the manner described in this
subsection is effective on the date of mailing.
B.
The
failure of a responsible party to receive any notice, order, or administrative
citation served in accordance with this chapter shall not affect the
validity of any proceedings taken under this code.
C.
The
notice requirements in this section do not apply to initial notices
of violation, which may be sent by regular mail to the property address(es)
on file with the county tax collector and the county assessor. Service
of a notice of violation by regular mail is effective on the date
of mailing.
D.
If a
responsible party is not an individual, the enforcement officer shall
attempt to identify the property owner and issue the property owner
the notice, order, or administrative citation. If the enforcement
officer can only identify the manager or on-site supervisor of the
property, the notice, order, or administrative citation may be issued
in the name of the property owner and served upon the manager or on-site
supervisor in the manner provided in this chapter. A copy of the notice,
order, or administrative citation shall also be mailed to the property
owner in the manner prescribed by this section.
E.
If the
property that is the subject of a violation is owned by a corporation,
notices and administrative citations may be served by certified mail
to the registered agent for the corporation.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
A.
For
purposes of this chapter the enforcement officer may have a notice
recorded with the County Recorder's office against a property that
is the subject of a pending administrative enforcement action with
the city.
B.
The
notice of the pending administrative enforcement action shall be on
a form approved by the City Attorney or designee and shall describe
the nature of the administrative enforcement action, the owner's assessor's
parcel number, the parcel's legal description, a copy of the latest
notice of violation, and the governing code section(s).
C.
Notification
Letter.
1.
Prior to recording the notice of pending administrative enforcement action, the enforcement officer shall serve a notification letter on the responsible party and property owner stating that the notice of pending administrative enforcement action will be recorded unless a request for hearing form is filed pursuant to the procedures outlined in Section 1.10.120 of this chapter, except that the time to file the request for hearing form is 10 calendar days from the date of mailing of the notification letter.
2.
The notification letter shall be served on the responsible party and property owner pursuant to any of the methods of service set forth in Section 1.10.040 of this chapter. The enforcement officer may also send a courtesy copy of the letter to any other party with an interest in the property.
3.
If
a request for hearing form is not received by the city within 10 calendar
days of the date of mailing of the notification letter, the enforcement
officer may record the notice of pending administrative enforcement
action if the code violations remain. The failure of any person to
file a request for hearing form in accordance with these provisions
shall constitute a waiver of the right to an administrative hearing
and shall not affect the validity of the recorded notice of pending
administrative enforcement action.
D.
Hearing
Prior to Recordation of Notice of Pending Administrative Enforcement
Action.
1.
Any hearing conducted upon receipt of a request for hearing form shall follow the procedures set forth in Section 1.10.120 and Article III of this chapter.
2.
The
purpose of the hearing is for the responsible party or property owner
to state any reasons why a notice of pending administrative enforcement
action should not be recorded. The administrative enforcement officer
shall only consider evidence that is relevant to the following issues:
a.
Whether the conditions listed in the notice of pending administrative enforcement action violate the Carlsbad Municipal Code or applicable state codes, or whether the conditions constitute any other violation as described in Section 1.10.020(A) of this chapter; and
b.
Whether the enforcement officer afforded the responsible party and
property owner with due process by adhering to the notification procedures
specified in this section.
3.
If
the administrative hearing officer affirms the enforcement officer's
decision to record the notice of pending administrative enforcement
action, the enforcement officer may record the notice.
4.
If
the administrative hearing officer determines that recordation is
improper, the administrative hearing officer shall invalidate the
enforcement officer's decision to record the notice of pending administrative
enforcement action.
E.
A copy of the recorded notice of pending administrative enforcement action shall be served on the property owner and responsible party pursuant to any of the methods of service set forth in Section 1.10.040 of this chapter.
F.
Prohibition
Against Issuance of Multiple Permits. The city may withhold permits
for any alteration, repair, or construction pertaining to any existing
or new structures or signs on the property, or any permits pertaining
to the use and development of the real property or the structure:
(1) if a request for hearing prior to recordation of notice of pending
administrative enforcement action has not been timely filed and the
notice is subsequently recorded; or (2) after an administrative hearing
officer affirms the enforcement officer's decision to record a notice
of pending administrative enforcement action and the notice is subsequently
recorded. The city may withhold permits until a certificate of compliance
or notice of release has been issued by the enforcement officer. The
city may not withhold permits which are necessary to obtain a certificate
of compliance or notice of release, or which are necessary to correct
serious health and safety violations.
G.
Upon
final resolution of the pending administrative enforcement action,
including the correction of all violations and payment of all outstanding
penalties, costs, and fees, the enforcement officer shall have a certificate
of compliance or notice of release filed with the County Recorder's
office releasing the property from the notice of pending administrative
enforcement action. The certificate of compliance or notice of release
shall be on a form approved by the City Attorney or designee.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
A.
In addition
to the assessment of any administrative penalties, the enforcement
officer is authorized to assess administrative costs against a responsible
party, as provided for in California Government Code Section 54988.
B.
The
city shall provide a responsible party and the property owner with
written notice of assessment of administrative costs on a form approved
by the City Attorney or designee, which shall include:
1.
The
basis for the administrative costs;
2.
The
code section(s) of the underlying administrative enforcement action;
3.
A
statement that the property owner has 45 calendar days after such
notice is issued to pay the administrative costs, after which time
the property may be subject to a proposed lien;
4.
A
statement that the property owner has an opportunity to appear before
the Planning Commission and be heard regarding whether the proposed
lien should become a lien and the lien amount.
C.
The notice of assessment of administrative costs shall be mailed using the service by mail procedures in Section 1.10.040 of this chapter.
D.
If the
property owner elects to appear before the Planning Commission and
be heard regarding whether the proposed lien should become a lien
and the lien amount, the Planning Commission shall conduct a hearing.
Written notice of the hearing shall be provided to the property owner
by mail at least 10 calendar days in advance of the hearing. After
the hearing, the Planning Commission shall make a written recommendation
to the City Council. The recommendation shall include factual findings
based on the evidence introduced at the hearing.
E.
The
City Council may adopt the Planning Commission's recommendation or
direct the matter be set for a new hearing before the City Council.
Written notice of the new hearing shall be provided to the property
owner by mail at least 10 calendar days in advance of the hearing.
F.
If the
City Council determines that the proposed lien shall become a lien,
the City Council may have a notice of lien recorded with the County
Recorder. The lien shall attach upon recordation and shall have the
same force, priority, and effect as a judgment lien, not a tax lien.
The notice of lien shall include the record owner or possessor of
the property, the last known address of the record owner or possessor,
the date upon which the lien was created against the property, and
a description of the real property subject to the lien and the amount
of the lien.
G.
The
failure of any person with a financial interest in the property to
actually receive the notice of the lien shall not affect the validity
of the lien or any proceedings taken to collect the outstanding civil
penalties.
H.
All
administrative costs assessed are cumulative. If a responsible party
fails to correct the violation(s), or has the same, similar, repeated,
or continuing violation(s), subsequent administrative costs may be
assessed.
I.
Payment
of administrative costs does not excuse the failure of a responsible
party to correct the violation(s) and does not bar further enforcement
action by the city.
J.
The
correction of a violation does not excuse the failure of a responsible
party to pay any outstanding administrative costs.
(Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
A.
Declaration
of Purpose. The City Council finds that there is a need for alternative
methods of code enforcement. The administrative assessment of civil
penalties along with an administrative hearing procedure is a necessary
alternative method of code enforcement, in addition to any other administrative
or judicial remedy established by law which may be pursued to address
violations of this code and applicable state codes.
B.
Authority.
1.
Any
person violating any provision of this code or applicable state code,
any permit or license approved pursuant to any provision of this code,
any condition of approval of a permit or entitlement granted pursuant
to any provision of this code, any required environmental mitigation
measure, any term or condition of any city agreement pursuant to a
police power, or any order issued by or on behalf of the city or by
an administrative hearing officer contracted with the city may be
subject to the assessment of civil penalties pursuant to the administrative
procedures provided in this section.
2.
Each
day a violation as described in Section 1.10.060(B)(1) of this chapter
exists constitutes a separate and distinct violation.
3.
Civil
penalties may be directly assessed by means of a notice and order
issued by any director or imposed, affirmed, or modified by an administrative
hearing officer.
4.
Civil
penalties shall be assessed at a daily rate determined by a director
or administrative hearing officer pursuant to the criteria listed
in Section 1.10.060(D)(3) of this chapter. The maximum rate shall
be $2,500.00 per violation. The maximum amount of civil penalties
shall not exceed $400,000.00 per parcel or structure for any related
series of violations, exclusive of administrative costs.
C.
Procedures—Notice
and Order.
1.
Whenever
a director determines that a violation as described in Section 1.10.060(B)(1)
of this chapter has occurred or continues to exist, a written civil
penalties notice and order may be issued to the responsible party.
2.
The
notice and order shall list all applicable sections violated and describe
how each section is or has been violated.
3.
The
notice and order shall refer to the dates and locations of the violations.
4.
The
notice and order shall describe the remedial action required to permanently
correct outstanding violations and establish time frames for completion.
5.
The
notice and order shall establish a daily amount of civil penalties.
A director shall determine the daily amount of civil penalties pursuant
to the criteria in Section 1.10.060(D)(3) of this chapter.
6.
The
notice and order shall identify a date when the civil penalties began
to accrue and a date when the assessment of civil penalties ended,
unless the violation is continuous. In the case of a continuous violation,
there shall be an ongoing assessment of penalties at the daily rate
established in the notice and order until the violations are corrected.
7.
If
a director determines that the violations are continuing, the notice
and order shall demand that the responsible party cease and desist
from further action causing the violations and commence and complete
all action to correct the outstanding violations under the guidance
of the appropriate city department(s) or division(s).
8.
The
notice and order shall enumerate any other consequences should the
responsible party fail to comply with the terms and deadlines as prescribed
in the notice and order.
9.
The notice and order shall explain the responsible party's right to appeal in accordance with Section 1.10.020 of this chapter and shall follow the appeal procedures set forth in Section 1.10.120 and Article III of this chapter. Unless contested, the notice and order shall be final and be enforced pursuant to this section.
10.
The notice and order shall be served upon the responsible party by any one of the methods of service provided in Section 1.10.040 of this chapter.
11.
The notice and order shall identify the factors used by a director
in determining the duration and the daily amount of civil penalties.
12.
More than one notice and order may be issued against the same responsible
party if it encompasses different dates or different violations.
D.
Determination
of Civil Penalties.
1.
In
determining the date when civil penalties start to accrue, a director
or administrative hearing officer may consider the date when the department
or division first discovered the violations as evidenced by the issuance
of a notice of violation or any other written correspondence.
2.
The
assessment of civil penalties shall end when all action required by
the notice and order has been completed.
3.
In
determining the amount of the civil penalty to be assessed at a daily
rate, a director or administrative hearing officer may consider some
or all of the following factors:
a.
The duration of the violation.
b.
The frequency or recurrence of the violation.
c.
The nature and seriousness of the violation.
d.
The history of the violation.
e.
Whether the offense impacted environmentally sensitive lands, a historical
resource, or a designated historical resource as defined throughout
this code.
f.
The willfulness of the responsible party's misconduct.
g.
The responsible party's conduct after issuance of the notice and
order.
h.
The good faith effort by the responsible party to comply.
i.
The economic impact of the penalty on the responsible party.
j.
The impact of the violation on the community.
k.
Any other factors that justice may require.
4.
The
City Manager may establish a penalty schedule for a director and administrative
hearing officer to use as a guideline in determining the amount of
civil penalties in appropriate cases. The City Manager may also establish
procedures for the use of this penalty schedule.
E.
Failure to Comply With Director's Notice and Order. When the responsible party fails to comply with the terms of the notice and order, a director shall schedule a civil penalties hearing in accordance with the administrative hearing procedures contained in Article III of Chapter 1.10 of this code, to the extent those procedures do not conflict with the requirements of this section. Failure to comply includes failure to pay the assessed civil penalties, failure to commence and complete corrections by the established deadlines, or failure to refrain from continuing violations as described in Section 1.10.060(B)(1) of this chapter.
F.
Civil
Penalties Hearing.
1.
The procedures for a civil penalties hearing are the same as the hearing procedures set forth in Article III of Chapter 1.10 of this code.
2.
The
administrative hearing officer shall only consider evidence that is
relevant to the following issues:
a.
Whether the responsible party has caused or maintained a violation
as described in Section 1.10.060(B)(1) of this chapter which existed
on the dates specified in the notice and order.
b.
If a notice and order was issued by a director, whether the amount
of civil penalties assessed by the director pursuant to the procedures
and criteria outlined in this section was reasonable.
G.
Administrative
Enforcement Order.
1.
Once
all evidence and testimony are completed, the administrative hearing
officer shall issue an administrative enforcement order which affirms
or rejects the director's notice and order or which modifies the daily
rate or duration of the civil penalties depending upon the review
of the evidence. The administrative hearing officer may increase or
decrease the total amount of civil penalties and costs that are assessed
by the director's notice and order.
2.
The
administrative hearing officer may issue an administrative enforcement
order that requires the responsible party to cease and desist from
committing the specified violations and to make specified corrections.
3.
As
part of the administrative enforcement order, the administrative hearing
officer may establish specific deadlines for the payment of penalties
and costs and condition the total or partial assessment of civil penalties
on the responsible party's ability to complete compliance by specified
deadlines.
4.
The
administrative hearing officer may issue an administrative enforcement
order that imposes additional civil penalties that will continue to
be assessed until the responsible party complies with the administrative
enforcement order and corrects the violation.
5.
The
administrative hearing officer may schedule subsequent review hearings
as necessary or as requested by a party to the hearing to ensure compliance
with the administrative enforcement order.
H.
Failure to Comply With the Administrative Enforcement Order. The failure of a responsible party to comply with the terms and deadlines set forth in the administrative enforcement order will trigger the enforcement provisions set forth in Section 1.10.130(C) of this chapter. If the civil penalties were initially imposed pursuant to a notice and order, the director shall monitor the violations and determine compliance.
(Ord. NS-591 § 1, 2001; Ord. CS-375 § 2, 2020; Ord. CS-434 § 3, 2022)
