Any Enforcement Officer shall have the authority to gain compliance with all provisions of this Code. These powers include the power to issue a notice of violation and administrative penalties, as described below in Sections 1-12-410 and 1-12-415, the power to inspect public and private property, and to seek and employ whatever remedies are available under this Code.
(a)
Subject to subsection (e) of this section, whenever an Enforcement Officer finds that a provision of this Code has been violated, including but not limited to a failure to comply with a condition imposed by any agreement, entitlement, permit, license or environmental document issued or approved by or on behalf of the City or failure to comply with any County, State or Federal laws the violation of which constitutes a public nuisance, and such officer determines to pursue administrative enforcement of the violation pursuant to this Chapter, he or she shall issue the responsible party a written notice of the violation providing that the City will abate the violation and providing the responsible party with an opportunity to appeal the notice of violation and show cause at a hearing as to why such condition should not be abated by the City at the responsible party's expense ("notice of violation"). Failure to appeal pursuant to Section 1-12-425 of this Chapter constitutes a waiver of the right to appeal the notice of violation and a failure to exhaust administrative remedies. Such notice of violation shall be served on the responsible party in the manner described in subsection (b) of this section. The Enforcement Officer shall include in the notice of violation the following information:
(1)
The date and location of the violation, including the address or other definite description of the location where the violation occurred, or is occurring.
(2)
The sections of the Code being violated and a description of each such violation.
(3)
Actions required to correct or abate the violation, and the period of time during which such required actions shall be commenced and completed, such period of time to be determined in the manner set forth in subsection (d) of this section.
(4)
A statement that the failure to correct and abate the violation, will result in the Enforcement Officer ordering the violation or violations abated, and ordering that the responsible party bear the costs of such abatement including all administrative costs incurred by the City.
(5)
An order prohibiting the continuation or repeated occurrence of a violation of this Code described in the notice of violation.
(6)
A statement that the responsible party may appeal the notice of violation by filing with the City Clerk, on the form provided for that purpose, a request for hearing within 15 calendar days of the date the notice of violation is served that includes the following information:
(i)
If the responsible party appeals the notice of violation, the responsible party may appear before the Hearing Body and show cause why the violations and conditions specified in the notice of violation should not be abated by the City at the responsible party's expense.
(ii)
Upon failure to appear for the hearing, or the failure to correct and abate a condition which is determined to constitute a violation, the Hearing Body may order the violation or violations abated, and may order that the responsible party shall bear the costs of such abatement including all administrative costs incurred by the City.
(iii)
Failure to appeal the notice of violation constitutes a waiver of the right to appeal the notice of violation. Failure to appeal also waives the right to seek further administrative remedies.
(7)
The signature of the citing Enforcement Officer.
(b)
Service of notice of violation shall be made upon the responsible party or the owner, personally or by First Class U.S. mail, with certificate of mailing, and if by such mail to the owner it shall be sent to the last known address listed on the most recent tax assessor's records. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by First Class U.S. mail, service shall be deemed complete at the time of deposit into the United States mail. Where service is by First Class U.S. mail upon the owner, a copy of the notice of violation shall be conspicuously posted at the affected property for a period of not less than three calendar days prior to the first date that commencement of corrective action or abatement is to be undertaken. The failure of any person to receive a notice of violation that was sent via First Class U.S. mail shall not affect the validity of any enforcement proceedings under this Chapter.
(c)
Proof of service of the notice of violation shall be certified by a written declaration under penalty of perjury executed by the person effecting service, declaring the date, time, and manner that service was made, and the date and place of posting, if applicable. The declaration, along with the certificate of mailing, shall be affixed to a copy of the notice of violation and retained by the Enforcement Officer.
(d)
The time allowed for abatement of a violation shall be a "reasonable time" in the judgment of the Enforcement Officer, based upon the circumstances of the particular violation, taking into consideration the means required to abate the violation, the period of time that the nuisance has existed, and the potential threat to public health and safety created by the violation. If the violation pertains to building, electrical, or other similar structural or zoning issues where the violation does not create an immediate threat to health or safety, the responsible party shall be provided not less than 10 calendar days in which to correct, abate, or otherwise remedy the violation.
(e)
The failure of a notice of violation to satisfy all of the requirements of this provision shall not affect the validity of any other enforcement proceedings under this Code.
(a)
Whenever an Enforcement Officer finds that a provision of this Code has been violated, including, but not limited to, a failure to comply with a condition imposed by any agreement, entitlement, permit, license or environmental document issued or approved by or on behalf of the City or failure to comply with any County, State or Federal laws the violation of which constitutes a public nuisance, such Enforcement Officer is authorized to issue administrative penalties. Administrative penalties may be issued for the enforcement of any section or provision of this Code. Such penalties may be issued to the responsible party.
(b)
Administrative penalties shall be issued on forms approved by the City Attorney. Each penalty shall indicate, at a minimum, the following information:
(1)
The name of the person or entity to whom the penalty is issued.
(2)
The address or location where the violation is observed.
(3)
The section of this Code that is being violated.
(4)
The date by which an appeal of the penalty must be sought before the penalty becomes final.
(5)
The procedure for seeking an appeal of the penalty.
(6)
The amount of the administrative penalty to be imposed for each violation in accordance with California Government Code Section 36900.
(7)
The manner of payment of the administrative penalty.
(8)
If the violation pertains to building, electrical, or other similar structural or zoning issues where the violation does not create an immediate threat to health or safety, the responsible party shall be provided not less than 10 calendar days in which to correct, abate, or otherwise remedy the violation before a penalty is imposed.
(c)
Service of the penalty shall be made upon the responsible party or the owner, personally or by First Class U.S. mail, with certificate of mailing, and if by such mail to the owner it shall be sent to the last known address listed on the most recent tax assessor's records. In the case of personal service, service shall be deemed complete at the time of such delivery. In the case of service by First Class U.S. mail, service shall be deemed complete at the time of deposit into the United States mail. Where service is by First Class U.S. mail upon the owner, a copy of the penalty shall be conspicuously posted at the affected property. The failure of any person to receive a copy of the penalty that was sent via First Class U.S. mail shall not affect the validity of any enforcement proceedings under this Chapter.
(d)
The payment of a penalty by or on behalf of any responsible party shall not relieve such party from the responsibility of correcting, removing or abating the violation, nor prevent further proceedings under this Chapter or any other lawful authority to achieve the enforced correction, removal or abatement of the violation.
(e)
A responsible party may appeal the imposition of any penalty or the amount of such penalty by filing a request for hearing form in accordance with the provisions of Section 1-12-425 of this Chapter.
(f)
Each and every day during any portion of which any violation is committed, continued, or permitted shall be deemed a separate and distinct violation. A penalty may continue to accrue on a daily basis until the violation is corrected.
(g)
Administrative penalties shall not be assessed at more than Five thousand dollars cumulatively per calendar year for a single-family home for any single violation which is accruing due to failure to correct.
(a)
If a penalty is imposed and the responsible party fails to timely and properly appeal such imposition, the responsible party against whom a penalty is imposed shall pay any such penalty within 30 days of the imposition thereof. Any penalty imposed shall be payable to the City, or to a collection agency if the penalty has been assigned to a collection agency pursuant to subsection (c) of this section.
(b)
If the amount of any penalty imposed for a violation relating to real property has not been satisfied in full within 60 days of the date due and has not been successfully challenged in court, the penalty amount may become a special assessment and lien against the affected property, as provided in Section 1-12-600 of this Chapter. If the City elects to make the amount of any penalty a special assessment or lien against the affected property, a statement of the amount due, and any additional costs or expenses that might be recoverable as part of the enforcement action, shall be prepared and submitted to the City Council for confirmation in accordance with the procedures described in Section 1-12-600.
(c)
Notwithstanding subsection (b) of this section, the amount of any unpaid penalty may be collected by commencement of a civil action to collect such penalty, or in any other manner provided by law for the collection of debts, including assignment of the debt to a collection agency. Subject to the requirements of this Chapter and other applicable law, amounts assigned for collection are subject to collection agency rules, regulations and policies. The City shall be entitled to recover any and all costs associated with collection of any such penalty.
(d)
The payment of a penalty by or on behalf of any responsible party shall not relieve such party from the responsibility of correcting, removing or abating the violation, nor prevent further proceedings under this Chapter or any other lawful authority to achieve the enforced correction, removal or abatement of the violation.
(a)
Any person appealing a notice of violation or penalty must obtain a "request for hearing" form from the City Clerk's Office and return it fully completed within 15 days from the date of service of the notice of violation or penalty. At the time of returning the request for hearing form to the City Clerk's Office, the person or entity requesting the appeals hearing shall pay an appeals processing fee established by the City Council. Failure to submit a completed appeals form or to pay the appeals processing fee constitutes a waiver of the right to appeal the notice of violation or penalty and a failure to exhaust administrative remedies. Imposition of a penalty shall be stayed during the pendency of an appeal therefrom which is properly and timely filed.
(b)
The hearing on appeal shall be set for a date not less than 15 days nor more than 45 days from the date the request for hearing form is filed, unless the Enforcement Officer determines that the matter is urgent or that good cause exists for an extension of time, in which case the date for such hearing may be shortened, or extended, as warranted by the circumstances.
(c)
Any other hearing set pursuant to a request for hearing shall be set for a date not less than 15 days nor more than 45 days from the date the request for hearing was received by the City Clerk.
(d)
A hearing under authority of this section shall be conducted according to the procedures set forth in this subsection. The failure of any interested party to appear at the hearing shall constitute a waiver of the right to such hearing and a failure by such party to exhaust their administrative remedies.
(1)
When a request for hearing is filed, the City Clerk shall set the time and place for hearing pursuant to subsection (b) or (c) of this section, and shall serve a notice of hearing by regular mail to the appellant at the address provided in the request for hearing form. The time for such hearing shall be no sooner than 10 days from the date of said notice of hearing.
(2)
At the place and time set forth in the notice of hearing, the Administrative Hearing Body shall conduct a hearing on the issues subject to the appeal, the alleged violations and/or the imposition and amount of any penalty. The Administrative Hearing Body shall provide for any interested person or persons to appear and object to the determination that is the subject of the appeal, including, but not limited to, whether a violation has occurred and/or that the violation continues to exist, or any matter pertaining to any penalty. The Administrative Hearing Body may consider any written or oral testimony and evidence regarding the issue presented by the alleged appellant, the owner, any officer, employee, or agent of the City, and any other interested party.
(3)
After receiving all of the evidence presented, the public portion of the hearing shall be closed. The Administrative Hearing Body may then deliberate and consider what action, if any, should be taken, or may adjourn the hearing and take the matter under consideration.
(4)
Within 30 days following the conclusion of the hearing, the Administrative Hearing Body shall issue written findings and make a determination regarding the issue on appeal.
(i)
The Administrative Hearing Body shall issue written findings and make a determination regarding the existence of the violation and/or the failure of the responsible party to take required corrective action within the specified time period, or the validity of any penalty imposed. If the Administrative Hearing Body finds by a preponderance of the evidence that a violation occurred, or that a violation was not corrected within the time period specified in the notice of violation or with the issuance of the penalty, the Administrative Hearing Body shall issue its decision including any Administrative Order in accordance with Section 1-12-430, below. If the Administrative Hearing Body finds that no violation occurred, that the violation was corrected within the specified time period, or that the appellant is not the responsible party, the Administrative Hearing Body shall issue a decision with written findings of those facts.
(5)
The appellant shall be served with a copy of the decision of the Administrative Hearing Body, including an Administrative Order if one is issued, in the manner and method set forth in Section 1-12-410(b) of this Article.
(a)
The Administrative Hearing Body considering any appeal of the imposition of a penalty pursuant to Section 1-12-425 may confirm, vacate, or modify but not increase, any such penalty imposed, and order the payment thereof. The decision shall state that review of the decision may be had by filing an appeal pursuant to Section 1-12-450, and shall specify the time limits for such filing.
(b)
The Administrative Hearing Body considering any appeal of a notice of violation, if it determines that a violation exists, may issue an Administrative Order imposing the remedies provided in this subsection. Notice concerning judicial review of the decision shall be given as provided in Section 1-12-800(d). The remedies for a violation found as a result of such a hearing shall be as follows:
(1)
Requiring the responsible party to correct or eliminate the violation or nuisance condition, including a proposed schedule for correction or elimination.
(2)
Authorizing the City to enforce the Administrative Order and abate or cause the abatement of the violation where the responsible party has refused or has otherwise neglected to take appropriate steps to correct or eliminate the violation. The Administrative Order shall specify that if the City undertakes to abate or eliminate the violation it shall be entitled to recovery of all costs and expenses incurred in performing such work, and shall also be entitled to recover its administrative costs. Administrative costs shall include costs incurred by the City in connection with the proceeding, including attorney's fees, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and the cost of any re-inspection and other costs necessary to enforce the Administrative Order. Such costs, if unpaid, may be recovered by the City through a lien on the affected property or through a special assessment as provided in Section 1-12-600 of this Chapter.
(3)
Any other order or remedy that is in the interests of justice.
(a)
Any penalty imposed by the Administrative Hearing Body shall be paid to the City within 30 days from the date of the decision, unless an extension of time is requested by the violator and granted by the Administrative Hearing Body.
(b)
Any appeals processing fee that is paid pursuant to Section 1-12-425(a) of this Article shall be refunded to the payee if it is determined by the Administrative Hearing Body that the person assessed the penalty was not responsible for the violation or that there was no violation as charged in said notice.
(c)
Payment of any penalty that is upheld or otherwise imposed by the Hearing Body shall not excuse or permit any continuation or repeated occurrence of the violation that is the subject of the penalty.
(d)
Any penalty imposed by the Administrative Hearing Body shall accrue from the date specified in the penalty and shall continue to accrue on a daily basis until the violation is corrected. The determination of compliance or elimination of the violation shall be made by the Enforcement Officer, unless such determination was made by the Administrative Hearing Body as a result of the hearing. The Administrative Hearing Body, in its discretion, may suspend the imposition of any penalty for a period of time not to exceed 60 days during which the responsible party applies for permits required to achieve compliance, and such permit applications are actively pending before, or have already been issued by, the City, the State, or other appropriate governmental agency.
(e)
Any penalty assessed by the Administrative Hearing Body is a debt owed to the City. In addition to all other means of enforcement and/or collection, any such penalty may be enforced as a personal obligation of the responsible party. If the violation is in connection with real property, such penalty may be enforced by imposition of a lien or special assessment upon the real property. Any lien or special assessment imposed upon the real property shall remain in effect until the penalty is paid in full.
(a)
Any person or entity aggrieved by a decision of the Administrative Hearing Body may seek review of said decision by filing a request for City Manager review. The request for City Manager review must be filed with the City Clerk's office within 15 days from the date of issuance of Administrative Hearing Body Decision. Upon timely receipt of a request for City Manager review, the City Manager may consider any written or oral testimony and evidence presented. The City Manager will issue a final written decision within 30 days from the receipt of request for City Manager review.
(b)
Any person or entity aggrieved by the City Manager Review decision issued pursuant to subsection (a) of this section relating to a decision of a Hearing Body made pursuant to subsection (a) of Section 1-12-430 may obtain judicial review of said decision pursuant to Government Code Section 53069.4 by filing an appeal to the Superior Court for the County of Alameda, subject to the time limits described in Section 1-12-800, below.
(c)
Any person or entity aggrieved by the City Manager Review decision issued pursuant to subsection (a) of this section relating to a decision of a Hearing Body made pursuant to subsection (b) of Section 1-12-430 may obtain review of said decision in the Superior Court for the County of Alameda by filing with said court a Petition for Writ of Mandate, subject to the time limits described in Section 1-12-800 of this Chapter.