A.
The
city council finds that there is a need for an alternative method
of enforcement for ordinances, permits and entitlements, reviews,
and city agreements. The city council also finds that an appropriate
method for enforcement of various violations is an administrative
citation program that will reduce the burden on the judicial system
while providing full due process for those cited.
B.
The
procedures established in this chapter are in addition to criminal,
civil or other legal remedies that may be available to the city of
Lemon Grove to enforce violations of the municipal code or applicable
state codes.
C.
The
city council finds that administrative penalties, which are authorized
by California Constitution Article XI, Section 7 and Government Code
Section 53069.4, are an appropriate method of enforcement.
D.
The
city council finds and determines that enforcement of the provisions
of the Lemon Grove Municipal Code and conditions on entitlements or
permits are municipal affairs as well as matters of purely local concern
to the citizens of Lemon Grove.
E.
The
city council finds that the adoption and implementation of this administrative
citation program is within the power and authority of the city of
Lemon Grove and will achieve the following goals:
1.
To
protect the public health, safety, and welfare of the citizens of
the city of Lemon Grove;
2.
To
help ensure compliance with the municipal code and state codes, ordinances,
permits and entitlements, reviews, and city agreements in a timely
and efficient manner;
3.
To
provide for an administrative process to appeal the imposition of
administrative citations and fines that will fully comport with due
process;
4.
To
provide a method to hold parties responsible when they fail or refuse
to comply with the provisions of the municipal code, ordinances, permits
and entitlements, reviews, and city agreements in the city of Lemon
Grove;
5.
To
reduce the burden on the judicial system and minimize the time and
expense of defending the citation on the part of the person cited.
(Ord. 356 § 2, 2006)
means a written notice that mandates corrective action and
establishes a fine as a penalty for noncompliance.
means and includes but is not limited to a development agreement,
owner participation agreement, disposition and development agreement,
road maintenance agreement, easement, license, other real property
use agreement, and agreement to implement an ordinance, plan, permit,
entitlement, or review approved by the city.
means the city manager of the city of Lemon Grove, or his
or her designee. "Enforcement officer" means any city employee or
agent of the city, as designated by the city manager, with the authority
to enforce the Lemon Grove Municipal Code, including, but not limited
to, a code enforcement officer, lifeguard, parking enforcement officer,
inspector, and the fire marshal.
means the person selected by the city manager to conduct
an administrative hearing pursuant to the provisions of this chapter.
means the Lemon Grove Municipal Code.
means and includes but is not limited to a conditional use
permit, sign permit, variance, specific plan, parcel map, subdivision
map, building or grading permit, encroachment or right-of-way permit,
business license, storm water permit, and any other permit required
by this code.
means a person, partnership, corporation, limited liability
company, nonprofit corporation, trustee, association or any other
legal entity, who the city manager determines is responsible for causing
or maintaining a public nuisance or a violation of the municipal code
or applicable state codes. The term "responsible person" includes
but is not limited to the following:
The owner, tenant, or occupant of real property;
The holder or the agent of the holder of any permit, entitlement,
or review;
The party or the agent of a party to an agreement covered by
this chapter;
The owner or the authorized agent of any business, company,
or entity subject to this chapter; or
The parent or legal guardian of any such person under the age of eighteen years and who violates any ordinance, regulation, permit, entitlement, review, or agreement described in Section 9.32.040.
means and includes but is not limited to a development review,
environmental impact report, mitigated negative declaration, negative
declaration, and determination of categorical exemption.
(Ord. 356 § 2, 2006)
A.
Any
person who violates any provision of the Lemon Grove Municipal Code
or regulation of the city, any condition of approval of a permit or
entitlement, any condition of an environmental review, or any term
or condition of any agreement with the city made pursuant to the police
power may be issued an administrative citation by an enforcement officer
as provided in this chapter. A violation of this code includes, but
is not limited to, all violations of the municipal code and the failure
to comply with any condition imposed by any entitlement, permit, city
agreement or environmental review issued or approved pursuant to this
code.
B.
Each
and every day that a violation of the municipal code exists constitutes
a separate and distinct offense. A separate citation may be issued
for each day a violation occurs.
C.
A civil
fine shall be assessed by means of an administrative citation issued
by the enforcement officer and shall be payable directly to the city
of Lemon Grove.
D.
Fines
shall be assessed in the amounts specified by resolution of the city
council, or where no amount is specified:
1.
A
fine not exceeding one hundred dollars for a first violation;
2.
A
fine not exceeding two hundred dollars for a second violation of the
same ordinance or permit within eighteen-month period from the date
of the first violation;
3.
A
fine not exceeding five hundred dollars for the third violation of
the same ordinance or permit within eighteen-month period from the
date of the first violation.
4.
A
fine not exceeding one thousand dollars for each additional violation
of the same ordinance or permit within eighteen-month period from
the date of the first violation.
E.
A second
or subsequent violation need only be of the same ordinance, term,
or condition to require the larger fine, and need not involve the
same personnel or property, provided that the same responsible person
is cited. The fine amounts shall be cumulative where multiple citations
are issued.
F.
If the
violation pertains to building, plumbing, electrical, or other similar
structural or zoning issues, that do not create an immediate danger
to health and safety, then the responsible person shall be issued
a warning prior to being issued the first violation. The warning will
advise the responsible person of the nature of the violation and the
date upon which the violation shall be corrected. The responsible
person will be given no more than fifteen days to correct the violation.
If the violation is not corrected within that time period, an administrative
citation with a fine shall be issued.
(Ord. 356 § 2, 2006)
A.
An administrative
citation on a form approved by the city manager may be issued to the
responsible person by an enforcement officer for violations of the
municipal code or applicable state code in the following manner:
1.
Personal
Service. In any case where an administrative citation is issued:
a.
The enforcement officer shall attempt to locate and personally serve
the responsible person and obtain the signature of the responsible
person on the administrative citation.
b.
If the responsible person served refuses or fails to sign the administrative
citation, the failure or refusal to sign shall not affect the validity
of the administrative citation or of subsequent proceedings.
2.
Service
of Citation by Mail. If the enforcement officer is unable to locate
the responsible person, the administrative citation shall be mailed
to the responsible person by certified mail, postage prepaid with
a requested return receipt. Simultaneously, the citation may be sent
by first class mail. If the citation is sent by certified mail and
returned unsigned, then service shall be deemed effective pursuant
to first class mail, provided the citation sent by first class mail
is not returned.
3.
Service
by Citation by Posting Notice. If the enforcement officer does not
succeed in personally serving the responsible person, or by certified
mail or regular mail, the enforcement officer shall post the administrative
citation on any real property within the city in which the city has
knowledge that the responsible person has a legal interest, and such
posting shall be deemed effective service.
B.
The
enforcement officer must complete a declaration of service.
(Ord. 356 § 2, 2006)
A.
Each
administrative citation shall contain the following information:
1.
Date,
approximate time, and address or definite description of the location
where the violation(s) was observed;
2.
The
code sections or conditions violated and a description of the violation(s);
3.
An
order to the responsible person to correct the violations within the
time specified, if applicable, and an explanation of the consequences
of failure to correct the violation(s);
4.
The
amount of the fine for the violation(s);
5.
An
explanation of how the fine shall be paid and the time period by which
it shall be paid;
6.
A
notification that payment of the fine does not excuse or discharge
the failure to correct the violation and does not bar further enforcement
action by the city;
7.
A
statement that if the fine is not timely paid, a late payment penalty
of twenty-five percent of the amount of the fine will be added to
the fine;
8.
Identification
of rights of appeal, including the time within which the citation
may be contested and the place to obtain a request for hearing form
to contest the administrative citation; and
9.
The
name and signature of the enforcement officer, the name and address
of the responsible person, and, if possible the signature of the responsible
person.
(Ord. 356 § 2, 2006)
A.
Upon
receipt of a citation, the responsible person must do the following:
1.
Pay
the fine to the city within thirty days from the correction date of
the administrative citation. All fines assessed shall be payable to
the Lemon Grove city treasurer. Payment of a fine shall not excuse
or discharge the failure to correct the violation(s) nor shall it
bar further enforcement action by the city; or
2.
Contest
the administrative citation and request an administrative hearing
within thirty days from the correction date of the administration
citation.
(Ord. 356 § 2, 2006)
A.
Recipient
of an administrative citation may contest that there was a violation
of any ordinance, regulation, permit, entitlement, or agreement covered
by this chapter, or that he or she is the responsible person by completing
a request for hearing form and returning it to the city within thirty
days from the correction date of the administration citation.
B.
The
request for hearing form must be accompanied by either an advanced
deposit of the fine or a request for hardship waiver. Any administrative
citation fine which has been deposited shall be refunded if it is
determined, after a hearing, that there was no violation(s) as charged
in the administrative citation.
(Ord. 356 § 2, 2006)
A.
A person
who files a request for an administrative hearing may also request
at the same time a hardship waiver of the fine deposit. To seek such
a waiver and obtain a separate hearing on the request, the responsible
person must check the box indicating this request on the form contained
on the reverse side of the citation and attach a statement of the
grounds for the request. To be effective, this form requesting the
waiver and the administrative hearing must be received by the city
manager's office within fifteen days of the date the citation is issued.
B.
The
waiver request will be decided by the city manager and issue the advance
deposit hardship waiver only if the responsible party submits to the
city manager a sworn affidavit, together with any supporting documents
or materials, demonstrating to the satisfaction of the city manager
the person's actual financial inability to deposit with the city the
full amount of the fine in advance of the hearing.
C.
The
city manager shall inform the responsible party in writing of whether
the waiver was approved, by serving the party personally or by mail
at the addressed provided in the waiver application. The city manager's
determination is final and is not subject to appeal or judicial review.
D.
If the
waiver is denied, the responsible party shall pay the fine amount
within ten days. Failure to make the deposit by the time required
shall be deemed an abandonment of the contest and renders the fine
delinquent.
(Ord. 356 § 2, 2006)
A.
The
city manager shall select a fair and impartial hearing officer from
a panel of hearing officers selected by city council for the administrative
citation hearing. The hearing officer shall not be a Lemon Grove city
employee.
B.
The
employment, performance evaluation, compensation and benefits of the
hearing officer, if any, shall not be directly or indirectly conditioned
upon the amount of administrative citation fines upheld by the hearing
officer.
(Ord. 356 § 2, 2006)
A.
No hearing
to contest an administrative citation before a hearing officer shall
be held unless and until a request for hearing form has been completed
and submitted, and, the fine has been deposited in advance, or a an
advance deposit hardship waiver has been issued.
B.
A hearing
before the hearing officer shall be set for a date that is not less
than fifteen and not more than sixty days from the date that the request
for hearing is filed in accordance with the provisions of this chapter.
The responsible party requesting the hearing shall be notified of
the time and place set for the hearing at least ten days prior to
the date of the hearing.
C.
At least
ten days prior to the hearing, the recipient of an administrative
citation shall be provided with copies of the citations, reports and
other documents submitted or relied upon by the enforcement officer.
If, after copies of documents have been provided to the responsible
party, the city determines to submit to the hearing officer additional
documents then, whenever possible, a copy of such documents shall
be provided to party prior to the hearing. No other discovery is permitted.
Formal rules of evidence shall not apply.
D.
The
hearing officer shall only consider evidence that is relevant to whether
the violation(s) occurred and whether the responsible person has caused
or maintained the violation(s). Courtroom rules of evidence shall
not apply. Relevant hearsay evidence and written reports may be admitted
whether or not the speaker or author is present to testify if the
hearing officer determines that the evidence is reliable. Admission
of evidence and the conduct of the hearing shall be controlled by
the hearing officer in accordance with the fundamentals of due process.
The hearing officer may limit the total length of the hearing to one
hour, and shall allow the responsible party at least as much time
to present its case as is allowed the city.
E.
At the
hearing, the responsible party requesting the hearing shall be given
the opportunity to present, either them self or through a representative,
evidence and testimony concerning the administrative citation. The
city's case shall be presented by an enforcement officer or by any
other authorized agent of the city.
F.
The
failure of the responsible party, either personally or through counsel,
of an administrative citation to appear at the administrative citation
hearing shall constitute a forfeiture of the fine and a failure to
exhaust his or her administrative remedies.
G.
The
hearing officer may consolidate administrative citations issued to
the same responsible person.
H.
The
hearing officer may continue the hearing and request additional information
from the enforcement officer or the recipient of the administrative
citation prior to issuing a written decision.
(Ord. 356 § 2, 2006)
A.
After
considering all of the testimony and evidence submitted at the hearing,
the hearing officer may announce a decision orally, but in any event,
shall prepare a written decision. The decision shall be provided to
the parties within ten days of the hearing and shall either affirm
the issuance of the citation as issued or dismiss the citation. The
decision shall briefly state the reasons for the conclusion of the
hearing officer. The city may serve the notice of decision for the
administrative hearing to the responsible person personally or through
certified and first class United States mail. The decision of the
hearing officer shall be final. If the hearing officer determines
that First Amendment rights are involved, the decision shall be issued
orally at the conclusion of the hearing and shall be effective immediately.
A written decision shall thereafter be issued as provided hereinbelow.
B.
If the
hearing officer affirms the issuance of the administrative citation,
then the deposit with the city shall be retained by the city. If a
hardship waiver was granted, the decision shall set forth a payment
schedule for the fine.
C.
If the
hearing officer determines that the administrative citation should
be canceled and the fine was deposited with the city, then the city
shall refund the deposit within ten days of the hearing officer's
decision.
D.
The
hearing officer shall not have the power to reduce the fine. The hearing
officer may impose conditions and deadlines to correct any violations
or require payment of any outstanding penalties.
(Ord. 356 § 2, 2006)
The hearing officer is authorized to assess any reasonable costs.
Administrative costs may include scheduling and processing of the
hearing and all subsequent actions.
(Ord. 356 § 2, 2006)
A.
The
failure of any person to pay the civil fines imposed by an administrative
citation within the time specified on the citation may result in the
filing of a claim with the Small Claims Court or the Superior Court
for recovery of the fine. The only issue to be adjudicated by the
court shall be whether or not the fines were paid. A person cited
may only obtain judicial review of the validity of the citation by
writ of mandate after exhausting their administrative remedies by
requesting and participating in an administrative hearing before a
hearing officer. In the court action, the city may also recover its
collection costs, including the cost of the hearing officer, and any
court fees, according to proof.
B.
In lieu
of or in addition to the filing of a court action, the city may impose
a code enforcement lien, in the amount of the fine plus interest and
late charges, on the real property upon which the violation occurs.
Any lien imposed pursuant to this chapter shall attach upon the recordation
of a notice of code enforcement lien in the office of the county recorder.
C.
The
city at its discretion may pursue any and all legal and equitable
remedies for the collection of unpaid fines, interest and penalties.
The use of one recovery method does not preclude the use of any other
recovery method.
(Ord. 356 § 2, 2006)
If the violation is corrected within a reasonable time after
the decision of the hearing officer, the city manager shall have the
discretion to reduce any cumulative fines to a total of not less than
one thousand dollars upon good cause shown by the responsible person.
The determination of the city manager shall be final and shall not
be subject to appeal or judicial review. Fines shall not otherwise
be reduced.
(Ord. 356 § 2, 2006)
Any responsible party who fails to pay a fine imposed by this
chapter on or before the date that payment is due, shall also be liable
for the payment of a late payment charge of twenty-five percent of
the fine. In addition, delinquent fines shall accrue interest at the
rate of ten percent per month, excluding penalties, from the due date.
(Ord. 356 § 2, 2006)
Either the city or the appellant aggrieved by a decision of
a hearing officer on an administrative citation may obtain review
of the administrative decision by filing a petition for review with
the San Diego Superior Court in accordance with the timelines and
provisions as set forth in California Government Code Section 53069.4.
Such procedure shall be available under this chapter, notwithstanding
that the term or condition being enforced pursuant to this chapter
may not be a matter covered by Section 53069.4(a). Judicial review
of a citation shall not be available without first exhausting all
available administrative remedies and participating in a hearing as
provided in this chapter.
(Ord. 356 § 2, 2006)
Failure to comply with any procedural requirement of this chapter,
to receive any notice or decision specified in this chapter, or to
receive any copy required to be provided by this chapter shall not
affect the validity of proceedings conducted hereunder unless the
responsible person is denied constitutional due process thereby.
(Ord. 356 § 2, 2006)
