A.
It is
the purpose of this chapter to provide for the enforcement of the
provisions of this Code within the City.
B.
In addressing
a particular Code violation, the City may use one or more of the enforcement
procedures provided herein. Nothing in this chapter shall be deemed
to prevent the City from enforcing the provisions of this Code in
any manner authorized in law.
(Ord. 86-13; Ord. 91-25)
The City Manager may designate one or more enforcement officers
to enforce provisions of this Code in accordance with the provisions
of this chapter.
(Ord. 86-13)
A.
It is
unlawful for any person to create, cause, commit or maintain a public
nuisance within the City.
B.
A violation
of any regulatory provision of this Code constitutes a public nuisance.
(Ord. 86-13)
Whenever the term "person" is used in this Code, it shall mean
individuals, partnerships, corporations, limited liability companies,
non-profit corporations, trustees, associations or any other legal
entity. The persons responsible for violations of the Code on real
property include the owners, lessees, tenants, sublessors, sublessees,
occupants, operators, managers, or any other person who has custody
or control over the property.
(Ord. 2003-06)
A.
Continuing
Violations. Each separate day, or part thereof, during which a violation
of this Code is committed, continued, maintained, permitted or allowed
shall constitute a separate offense, punishable as such.
B.
Responsibility of New Owners. When a continuing violation of this Code is created or maintained on real property, each successive owner of the real property, including responsible persons described in Section 1.08.035, who neglects to abate the continuing violation is responsible for the violation in the same manner as the former owner.
C.
Aiding
and Abetting a Violation. Whenever an act or omission is unlawful
under this Code, it shall be unlawful for any person to aid, abet,
conceal, suffer, permit, allow or maintain such violation, or become
an accessory to such violation after the fact.
D.
Lapse
of Time. No lapse of time shall legalize a violation of this Code.
(Ord. 2003-06)
A.
Infraction.
Any person who violates a provision of this Code, where such violation
constitutes a crime, shall be guilty of an infraction, unless otherwise
expressed, punishable as follows:
B.
Misdemeanor.
Any person convicted of violating a provision of this Code, where
such violation is expressly made a misdemeanor, shall be punished
by a fine not exceeding $1,000.00, or by imprisonment not to exceed
six months, or by both such fine and imprisonment.
C.
Discretionary
Charging of Infractions and Misdemeanors. Notwithstanding any other
provision of this Code, any violation of this Code that constitutes
an infraction or a misdemeanor, may be charged as a misdemeanor or
an infraction, respectively, at the discretion of the City Attorney.
D.
Treble
Costs. Upon a second or subsequent offense within two years, the City
shall request as part of the criminal prosecution that the court order
the convicted defendant who owns the property on which the violation
is maintained to pay treble the costs incurred by the City in obtaining
the abatement of the nuisance, in accordance with law.
(Ord. 2015-09)
A.
A violation
of a provision of this Code may be redressed by civil action which
seeks, among other things, declaratory and injunctive relief. A public
nuisance that is not a violation of a provision of this Code may nonetheless
be redressed in accordance with the provisions of this section.
B.
Recovery
of Costs. In seeking a civil judgment against any person who creates,
causes, commits or maintains a public nuisance within the City, the
City may seek an award of damages in an amount equal to the expenses
incurred by the City in abating the nuisance, including court costs,
related administrative costs, and reasonable attorneys' fees. If the
City elects at the initiation of the action to seek recovery of its
attorneys' fees, then the other party may also recover attorneys'
fees if it is the prevailing party. However, in no case shall the
other party recover attorneys' fees in excess of the amount of reasonable
attorneys' fees incurred by the City.
C.
Treble
Costs. Upon a second or subsequent offense within two years, the City
shall request that the court order the person who creates, causes,
commits or maintains a violation of this Code within the City to pay
treble the costs incurred by the City in obtaining the abatement of
the violation, in accordance with law.
(Ord. 2003-06)
A.
Conduct
of Administrative Hearing. An administrative hearing may be conducted
for the purpose of abating a violation of this Code as follows:
1.
The
City Manager, or the City Manager's designee, shall serve as the hearing
officer and shall set an administrative hearing at which the City
presents its case in support of the contention that a violation of
this Code does in fact, and in law exist on real property within the
City limits.
2.
No
less than 30 days prior to the hearing, notice of the hearing shall
be:
a.
Served on the owner of record of the parcel of land on which the
nuisance is maintained, based on the last equalized assessment roll
or the supplemental roll, whichever is more current, in the same manner
as a summons is served in a civil action;
b.
Served by mail on any mortgagee or beneficiary of a deed of trust
recorded against the property where the nuisance is occurring, and
on any lessee or occupant of the real property; and
c.
Posted on the affected premises. If the owner of record, after diligent
search, cannot be found, the notice may be served by posting a copy
thereof in a conspicuous place upon the property for a period of 10
days and publication thereof in a newspaper of general circulation.
3.
Proof
of service and posting of the notice shall be made by declaration,
under penalty of perjury, and shall be retained as part of the code
enforcement file.
4.
The
responding parties shall be given a reasonable opportunity to present
a response to the City's presentation.
5.
If
the hearing officer determines, based upon competent, sworn evidence
that a violation of this Code does in fact and in law exist and that
the responding party or parties have created, caused, committed or
maintained the violation within the City, the hearing officer shall
issue an administrative order of abatement which:
a.
Describes the violation;
b.
Sets forth the time and manner in which the public nuisance is to
be abated;
c.
Directs the responsible party or parties to abate the violation;
and
d.
Includes a statement that if the violation is not timely abated by
the responsible party or parties, the City will cause the abatement
to be accomplished at the expense of the responsible party or parties.
6.
The
City may record an administrative order of abatement with the County
Recorder.
B.
Abatement
by the City.
1.
If
the responsible party or parties fail to comply fully with the administrative
order of abatement, the City may abate the violation in accordance
with law.
2.
In
abating the violation, the City Manager is authorized to utilize City
forces or private contract.
3.
To
abate the violation, the City forces are authorized to go upon the
affected premises in accordance with law.
4.
The
City Manager shall ensure that there is kept an account of the cost
incurred by the City in abating the violation on each premises and
shall cause to be prepared an itemized report, in writing, showing
the cost of abatement. The cost of abatement may include related administrative
costs.
C.
Hearing
to Assess Costs.
1.
If
the City is required to incur costs in abating the violation, the
City Manager, or the City Manager's designee, shall serve as the hearing
officer and shall set an administrative hearing:
2.
No
less than 30 days prior to the hearing, notice of the hearing shall
be:
a.
Served on the owner of record of the parcel of land on which the
nuisance is maintained, based on the last equalized assessment roll
or the supplemental roll, whichever is more current, in the same manner
as a summons is served in a civil action;
b.
Served by mail on any mortgagee or beneficiary of a trust recorded
against the property where the nuisance is occurring, and on any lessee
or occupant of the real property; and
c.
Posted on the affected premises. If the owner of record, after diligent
search, cannot be found, the notice may be served by posting a copy
thereof in a conspicuous place upon the property for a period of 10
days and publication thereof in a newspaper of general circulation.
3.
Proof
of service of the notice shall be made by declaration, under penalty
of perjury, and shall be retained as part of the code enforcement
file.
4.
The
responsible party or parties shall be given a reasonable opportunity
to present a response to the City's presentation.
5.
Upon
ascertaining that the costs claimed by the City in abating the violation
are correct and reasonable, the hearing officer may direct one of
the following:
a.
That an abatement lien be recorded against the property on which
the violation is maintained and that notice be given to the owner
of record of that property prior to such recordation, in accordance
with law; or
b.
That the costs of such abatement shall be a special assessment against
the land on which the violation is maintained, in accordance with
law, to be collected in the same manner as the real property tax is
collected.
6.
From
the date of recording at the county recorder's office, the nuisance
abatement lien shall have the force, effect, and priority of a judgment
lien. The lien must be foreclosed by an action brought by the City
for a money judgment. If a special assessment is placed on the property
it shall be a personal obligation of the property owners and may be
collected as such by a civil action, or any other means allowed by
law.
D.
Summary
Abatement.
1.
If a Code enforcement officer determines that a public nuisance, as defined by this chapter, exists and poses an immediate risk to the health, safety or welfare of the public or persons in the vicinity, the City may cause the abatement of the nuisance without the prior notice described in subsection A of this section.
2.
Within
24 hours after the determination is made by the City to summarily
abate the nuisance, notice of the determination shall be posted on
the property. Within five working days after the determination is
made by the City to summarily abate the nuisance, notice of the determination
shall be served on the owner of record of the parcel of land on which
the nuisance is maintained, based on the last equalized assessment
roll or the supplemental roll, whichever is more current, in the same
manner as a summons is served in a civil action, and served by mail
on any mortgagee or beneficiary of a trust recorded against the property
where the nuisance is occurring, and on any lessee or occupant of
the real property. All such notices need not be given prior to the
actual abatement, but the posting of the notice on the property shall
not occur later than the beginning of the abatement by the City.
3.
If
the owner of record, after diligent search, cannot be found, the notice
may be served by publication thereof in a newspaper of general circulation.
4.
Proof
of service and posting of the property shall be made by declaration,
under penalty of perjury, and retained as part of the Code enforcement
file.
(Ord. 2003-06)
A.
Administrative
Fines. Every violation of a provision of this Code, the penalty for
which is defined as an "infraction" or "misdemeanor," shall be subject
to an administrative fine. The provisions of this section are in addition
to all other legal remedies, criminal or civil, which may be pursued
by the City and nothing shall prevent the City from initiating a civil,
criminal or other legal or equitable proceedings as an alternative
to the proceedings set forth in this section, or abating a nuisance
and recovering the costs of abatement.
B.
Issuance
of Administrative Citations. Whenever a code enforcement officer finds
that a provision of this Code has been violated, the code enforcement
officer may issue an administrative citation to the person responsible
for the violation. The administrative citation shall state the fine
imposed by the City as a result of the violation. If the violation
pertains to building, plumbing, electrical, or other similar structural
or zoning issues that do not create an immediate danger to health
or safety, the Citation shall provide for a reasonable period of time
to correct the violation prior to the imposition of an administrative
fine. Reasonable period of time shall be at least five days, but not
more than 45 days, unless the code enforcement officer finds that
a greater length of time for compliance is necessary. The code enforcement
officer may also provide for the same reasonable period of time to
correct other types of violations.
C.
Contents
of an Administrative Citation. Each administrative citation issued
to a person shall contain the following:
1.
The
date of the violation.
2.
The
address or a legal description of the location where the violation
occurred.
3.
The
section of the Code violated and a description of the violation.
4.
A
description of the action required to correct the violation, if applicable.
5.
The
number of days allowed to correct the violation prior to the imposition
of the fine, if applicable.
6.
The
amount of the fine assessed for the violation.
7.
A
description of the fine payment process, including a description of
the due date and the place where the fine shall be paid.
8.
An
order prohibiting the continuation or repeated occurrence of the violation
described in the administrative citation.
9.
A
description of the administrative citation review process, including
the time within which the administrative citation may be contested
and where a request for hearing may be obtained.
10.
The name and signature of the code enforcement officer.
D.
Service
of the Administrative Citation. Service shall be made by:
1.
Personal
service by any of the methods for service of a summons in a civil
action pursuant to California Code of Civil Procedure Section 415.10;
or
2.
First
class mail. Service shall be complete at the time the citation is
deposited into the United States mail; or
3.
If
personal service or service by first class mail is not possible, service
shall be provided by publishing a notice in a newspaper of general
circulation and posting an 8-1/2″ x 11″ enlargement
of the administrative citation in a conspicuous location on the property.
E.
Amount of Fines. The amount of fines imposed pursuant to this section shall be established by resolution of the City Council. If the violation would otherwise constitute an infraction, the fine shall not exceed the maximum amount of the fine established for an infraction in Section 1.08.050A of this Code. If the violation would otherwise constitute a misdemeanor, the fine shall not exceed the maximum amount of the fine established for a misdemeanor in Section 1.08.050B of this Code.
F.
Time
to Pay. All fines shall be paid to the City within 30 calendar days
from the effective date of the administrative citation. The effective
date of an administrative citation shall be the date the citation
is issued, unless the code enforcement officer granted an opportunity
for the person cited to correct the violation. Where a correction
period has been granted, the effective date of the administrative
citation shall be on the final date of the correction period, if the
person has not corrected the violation. An administrative citation
fine shall be refunded if it is determined, after hearing that the
person charged was not the person responsible for the violation, or
there was no violation as charged in the administrative citation.
G.
Methods
of Collection. The City may use all available legal means to collect
any past due fines imposed by administrative citations, including,
but not limited to, contracting with collection agencies, filing liens
and seeking judgments in court.
H.
Request
for Hearing.
1.
Any
person issued an administrative citation may contest the issuance
of the Citation by filing a written request for hearing no later than
10 calendar days from the effective date of the citation. The written
request shall include a detailed written explanation of the reasons
for contesting the administrative citation.
2.
The person to whom an administrative citation is issued shall deposit the amount of the fine with the City Clerk at the time of the request for hearing, or request an advance deposit hardship waiver pursuant to subsection I of this section.
3.
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. The hearing shall be set for a date that is not less
than 15 calendar days from the date that a completed request for administrative
hearing is filed in accordance with the above provisions.
I.
Advance
Deposit Hardship Waivers.
1.
Any
person who requests an administrative hearing and is financially unable
to make the advance deposit of the fine, may file a request for an
advance deposit hardship waiver by completing a form approved by the
City Manager and submitting the form to the City Clerk within three
days after filing the request for a hearing.
2.
The
City Manager, or the City Manager's designee, may waive the requirement
of an advance deposit only if the applicant submits the required advance
deposit hardship waiver form and includes supporting documents demonstrating
to the satisfaction of the City Manager that it would be a significant
financial burden on the recipient of the administrative citation to
deposit the fine prior to the hearing. The City Clerk shall serve
written notice of the City Manager's determination on the recipient
of the administrative citation by first class mail, return receipt
requested. Service shall be deemed complete at the time the notice
is deposited into the mail and addressed to the person at the address
indicated on the hearing request form. Personal service may also be
used.
3.
If
an advance deposit hardship waiver is not granted, the recipient of
the administrative citation shall deposit the fine with the City Clerk
within five days of service of the decision, or at least 24 hours
before the hearing, whichever is sooner.
J.
Appointment
of Hearing Officer. The City Manager shall designate a fair and impartial
hearing officer for the administrative citation hearings.
K.
Hearing
Procedure.
1.
All
hearings shall be held before the hearing officer.
2.
Failure
of the party contesting the administrative citation to appear at the
hearing shall constitute forfeiture of the fine and a failure to exhaust
administrative remedies.
3.
The
administrative citation and any additional report submitted by the
code enforcement officer shall constitute prima facie evidence of
the violation. The code enforcement officer may present additional
evidence at the hearing.
4.
At
the hearing, the person contesting the validity of an administrative
citation shall be given the opportunity to testify and present evidence
concerning the administrative citation. Both parties may cross-examine
the witnesses.
5.
The
hearing officer may continue the hearing from time to time and provide
the person with additional time to remedy the violation. In addition,
the hearing officer may request additional information or evidence
from the code enforcement officer or the recipient of the administrative
citation prior to issuing a written decision.
6.
All
hearings shall be recorded by a video or audio device, unless the
City decides to utilize a court reporter. If a court reporter is not
utilized, the City is not required to provide a transcription of the
hearing, but shall make the video or audio tape available to the person
cited within 30 days after the hearing. The City may charge a reasonable
fee for reproducing the tapes. If a court reporter is utilized, the
recipient of the administrative citation may obtain a copy of the
transcript upon payment of any applicable reasonable fees or costs.
The City may destroy such tapes or transcripts after all appeals of
the administrative citation are exhausted.
7.
The
hearing need not be conducted in accordance with technical rules of
evidence. Any relevant evidence shall be admitted if it is the type
on which reasonable persons are accustomed to rely in the conduct
of serious affairs, regardless of the existence of any common law
or statutory rule that might consider such admission improper in a
civil action. Oral evidence shall be taken only on oath or affirmation.
Irrelevant or unduly repetitious evidence shall be excluded.
8.
After
considering all of the testimony and evidence submitted at the hearing,
the hearing officer shall issue a written decision to affirm or cancel
the administrative citation. The written decision shall include the
hearing officer's findings and information regarding the recipient's
appeal rights to the Superior Court. The recipient of the administrative
citation shall be served with a copy of the hearing officer's written
decision by first class mail, or by personal service. The decision
of the hearing officer shall be the City's final administrative decision.
9.
If
the hearing officer determines that the administrative citation should
be affirmed, the fine on deposit with the City shall be retained.
In addition, the hearing officer shall assess the cost of holding
the hearing to the violator, and order the violator to pay the hearing
costs to the City within 30 days.
10.
If the hearing officer determines that the administrative citation
should be upheld, and the fine has not been deposited pursuant to
an advance deposit hardship waiver, the hearing officer shall set
forth in the decision a payment schedule for the fine and the cost
of the hearing.
11.
If the hearing officer determines that the evidence presented does
not support the issuance of the administrative citation, the fine
shall be deemed null and void and the City shall, within 30 calendar
days, refund the amount of the fine. In addition, the City shall not
assess hearing costs.
L.
Right
to Judicial Review. A person aggrieved by the administrative decision
of a hearing officer may file an appeal with the San Diego County
Superior Court within 20 days of the service of the hearing officer's
decision, in accordance with the provisions in California Government
Code Section 53069.4.
(Ord. 2003-06; Ord. 2017-07; Ord. 2022-06)
Civil penalties for violations of the Encinitas Municipal Code are hereby established. As an alternative to the administrative citation process, in any civil action filed by the City to enforce the provisions of this Code, the City may request the Court to impose civil penalties in the maximum amount that could have been imposed by the City by the administrative citation process in Section 1.08.080.
(Ord. 2003-06)
A.
To file
a complaint alleging a violation of one or more of the provisions
of this Code, the complaining citizen shall submit, in writing, a
statement signed under penalty of perjury which sets out the location
of the alleged violation, the person involved and each and every fact
upon which the complaint is based.
B.
Upon
receipt of a properly prepared citizen's complaint, the City of Encinitas
may direct an investigation into the alleged violation and take further
action as appropriate.
(Ord. 2003-06)
A.
A Code
Enforcement Officer is authorized to issue a criminal or administrative
citation for a violation of portions of the Municipal Code which the
Officer is authorized to enforce.
B.
The
City Manager is authorized to appoint one or more City employees to
serve as a Code Enforcement Officer, so long as the person:
1.
Has
satisfactorily completed a course of initial instruction in criminal
enforcement procedures required by the City;
2.
Has
satisfactorily completed an examination demonstrating competence to
apply the City's Code enforcement policies; and
3.
Has
demonstrated the ability to perform the tasks of a code enforcement
officer.
C.
The
appointment of a Code Enforcement Officer shall be in writing and
shall include a designation of the portions of the Municipal Code
which that code enforcement officer is authorized to enforce. The
appointment shall include the issuance of an identifying badge.
D.
The
City Manager shall approve a course of refresher training and periodic
recertification for appointed Code Enforcement Officers.
F.
A Code
Enforcement Officer whose appointment is revoked shall not be reappointed
until the person has satisfactorily completed a course of instruction
required by the City.
G.
In their
capacity as law enforcement officers for the City, members of the
Sheriff's Department are authorized to enforce the provisions of this
Code.
(Ord. 2003-06)
