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05-13-2008 CC Rpt A22 THE ATTACHED ORDINANCE NO. 209 WAS CONSIDERED BY THE CITY COUNCIL AT THEIR LAST MEETING; THE ORDINANCE IS NOW BEING PRESENTED FOR ADOPTION. 11, /9Z2 110 CITY COUNCIL ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHINO HILLS, ADDING CHAPTER 1.18 AND SECTION 1.36.060 AND AMENDING SECTION 1.04.080 OF THE CHINO HILLS MUNICIPAL CODE TO CREATE AN ADMINISTRATIVE CITATION PROGRAM FOR VIOLATIONS OF THE CHINO HILLS MUNICIPAL CODE. THE CITY COUNCIL OF THE CITY OF CHINO HILLS DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Chapter 1.18 is added to the Chino Hills Municipal Code, as follows: Chapter 1.18 ADMINISTRATIVE CITATIONS Sections: al 1.18.010 Purpose 1.18.020 Definitions 1.18.030 Enforcement Authority 1.18.040 Scope 1.18.050 Administrative Citation 1.18.060 Compliance Orders 1.18.070 Administrative Fine 1.18.080 Issuing Permits Or Licenses 1.18.090 Administrative Review and Hearing 1.18.100 Judicial Review/Right To Appeal 1.18.110 Collection and Lien Procedures 1.18.010 Purpose A. This Chapter is adopted pursuant to the City's police powers and Government Code § 53069.4 for the purpose of making any violation of the Chino Hills Municipal Code subject to an administrative fine and to set forth procedures for the imposition and collection of such fines. B. The purpose and intent of this ordinance is to ensure the health, safety, and welfare of the City's residents and to provide an efficient and cost effective method of enforcing the Chino Hills Municipal Code and the City's ordinances. The purpose and intent of the City's imposition of fines is to encourage compliance with and deter future 4101 violations of the Chino Hills Municipal Code. C. The administrative enforcement procedures set forth in this ordinance are in addition to all other legal remedies, criminal or civil, which the City may choose to pursue. Nothing in this ordinance is intended to, or does, supersede, replace or 1 as, otherwise limit the now existing powers of the City to enforce its laws. The use of this chapter is at the sole discretion of the City. 1.18.020 Definitions A. Administrative Citation. "Administrative Citation" or"citation" means a citation issued pursuant to this chapter. B. Citee. "Citee" means the person(s) to whom an Enforcement Officer issued an administrative citation pursuant to this chapter, and includes any of the following: 1. A person who causes a code violation to occur. 2. A person who maintains or allows a code violation to continue, by his or her action or failure to act. 3. A person whose agent, employee, or independent contractor causes a code violation by its action or failure to act. 4. A person who is the owner of, and/or a person who is a lessee or sub lessee with the current right of possession of, real property where a property-related code violation occurs. 5. A person who is the on-site manager of a business who normally works daily at the site when the business is open and is responsible for the activities on such premises. C. Department Director. "Department Director" means the director or designee for the department responsible for issuing a citation pursuant to this chapter. D. Enforcement Officer. "Enforcement Officer" means any individual authorized ill to issue an Administrative Citation pursuant to this Chapter. E. Violation. "Violation" means any condition caused or permitted to exist in violation of any provision of this code or any ordinance of the city or of any condition of any permit (as that term is defined in Section 16.02.280) or license required by this code and issued by the City. A violation may include failure to correct, abate or remove any condition expressly prohibited by this code or any ordinance of the City or any such permit or license. 1.18.030 Enforcement Authority. A. The following designated officers and employees have the authority to administer and enforce the provisions of this chapter: 1. Community Services Director 2. Community Development Director 3. All sworn officers of the Chino Hills Police Department as authorized by the Chief of Police 4. Neighborhood Services Manager as authorized by the Community Services Director to enforce provisions of the Chino Hills Municipal Code 5. Code Enforcement Officers as authorized by the Community Services Director to enforce provisions of the Chino Hills Municipal Code 6. Environmental Program Coordinator as authorized by the Community ii. Services Director to enforce provisions of the Chino Hills Municipal Code 7. Assistant Community Development Director as authorized by the Community Development Director to enforce provisions of title 15 or 16 of the Chino Hills Municipal Code 2 of 12 111118. Building Inspectors as authorized by the Community Development Director to enforce provisions of title 15 or 16 of the Chino Hills Municipal Code. B. In addition to the officials designated above, the City Manager may designate any individual to administer and enforce the provisions of this chapter. 1.18.040 Scope A. Any Violation is subject to citation under this chapter. B. The procedures established in this chapter supplement and are in addition to any criminal or civil remedy established by law. Use of the provisions of this chapter does not waive the City's ability to use any other enforcement remedies found within this code. 1.18.050 Administrative Citation. A. Issuing Administrative Citations. An Enforcement Officer may issue an Administrative Citation in a form approved by the City Manager to the Citee for any violation by either personal service or by mail as described in Sections 1 or 2 below. If after reasonable efforts the Enforcement Officer is unable to serve the citation by such methods, then the Enforcement Officer may serve the citation by posting the citation as described in Section 3 below. If after reasonable efforts the Enforcement Officer is unable to serve the citation by personal service, or by mail, or by posting as described 41110 below, then the Enforcement Officer may serve the citation by publication as set forth in Section 4 below: 1. Personal Service. In any case where an Administrative Citation is issued by personal service: a. The Enforcement Officer must personally serve the Citee and ask the Citee to sign the Administrative Citation. The signature of a Citee acknowledging receipt of an Administrative Citation cannot be construed as an admission of responsibility. b. If the person served with the Administrative Citation refuses or fails to sign the Administrative Citation, the failure or refusal to sign does not affect the validity of the Administrative Citation or of subsequent proceeding, and service is complete if the Enforcement Officer attempted to provide a copy of the citation to the Citee and obtain the signature of the Citee c. Service under this subsection is effective at the time the notice is personally served. 2. Service of Citation by Mail. In any case where an Administrative Citation is served by mail, the Administrative Citation must be mailed to the Citee by certified mail, postage prepaid with a requested return receipt, and by first class mail. Service of the Administrative Citation is deemed effective upon return. If the Administrative Citation is returned unsigned, then service is deemed effective pursuant to first class mail ten (10) days after the citation is placed in the mail with first class postage, provided the citation sent by first class mail is not returned. 3. Service of Citation By Posting. If the Enforcement Officer is unable to serve illthe Administrative Citation by personal service, or by certified or first-class mail, a copy of the citation may be posted on any real property within the City in which the Enforcement Officer has reasonable belief that the Citee may be found or in which the 3 of 12 ilpCitee has a legal interest. Service under this subsection is deemed effective twenty- four hours after the notice is posted. 4. Service of Citation By Publication. If the Enforcement Officer cannot serve the Administrative Citation by personal service, or by certified or first class mail, or by posting, the citation may be published in a newspaper likely to give actual notice to the party subject to the citation. The publication must be once a week for four successive weeks in a newspaper published at least once per week. Service under this subsection is deemed effective twenty-four hours after the fourth weekly publication of the notice. B. The Administrative Citation must contain the following information: 1. The date the Administrative Citation is issued; 2. The code section(s) violated and a brief description of the conditions resulting in the Violation(s); 3. The date, approximate time, and address or description of the location where the Violation(s) occurred; 4. The amount of fine imposed for the Violation; 5. The manner by which the Administrative Citation may be paid, including location where payments may be tendered and the due date for paying the fine; 6. A description of the penalties for failure to pay the fine; 7. A brief description of the Administrative Citation review process, including the time within which the Administrative Citation may be contested and the manner in which a request for review of the citation may be requested; 8. To the extent reasonably practical, the full legal name of the Citee, the Citee's dicurrent residential address and mailing address, the Citee's telephone number and the Citee's signature; 9. An order prohibiting the continued or repeated occurrence of the Violation described in the Administrative Citation; and 10.The name of the Enforcement Officer. 1.18.060 Compliance Orders. A. Issuing Compliance Orders. Before issuing an Administrative Citation for any violation of building, plumbing, electrical, mechanical, or similar structural or zoning regulations set forth in this code or incorporated by reference, or any Violation of Title 15 or 16 of this code, the Enforcement Officer must first issue a written compliance order to the person(s) responsible for the Violation unless the Violation constitutes an immediate threat to public health or safety. The compliance order must contain all of the following: 1. The date on which, and geographic location where, the Violation was observed; 2. The section number of this code violated; 3. A description of the conditions causing the code Violation; 4. Actions required to correct the Violation; 5. A reasonable time period for the correction of the Violation; and 6. Notice that if the Violation is not corrected by the date specified in the 10 compliance order, that an Administrative Citation may be issued and administrative fines imposed for failure to correct Violations by the date specified. 4 of 12 IliB. Correction of Violation. No further action is required if the Enforcement Officer determines that all Violations in the compliance order were cured. If the Enforcement Officer determines that all Violations were not corrected within the time specified, an Administrative Citation may be issued to each person named in the compliance order as a responsible person. 1.18.070 Administrative Fines. A. Any responsible person who receives an Administrative Citation is subject to the payment of fines as set out in the penalty schedule for administrative fines as adopted by City Council resolution. An administrative penalty may be assessed by means of an Administrative Citation issued by an Enforcement Officer, and is payable directly to the City Treasurer. A portion of each penalty constitutes reimbursement for the City's administrative expenses in issuing and processing the citation. Penalties must be collected in accordance with the procedures specified in this chapter. Payment of a penalty does not excuse the failure to correct the Violation nor does it bar further enforcement action by the City. In the case of Violations of the building, plumbing or electrical codes, or Title 15 or 16 of this Code, an Administrative Citation cannot be issued until after the responsible party is provided notice and a reasonable opportunity to correct the Violation, and failed to do so. B. Payment of Administrative Fines. An Administrative Citation fine must be paid to the City within thirty (30) days from the date of the Administrative Citation fine or, illif a request for an initial Administrative Review is submitted and the review held, then within fifteen (15) days after the date of the notice of the conclusion of that initial Administrative Review, whichever is later. C. Delinquency Penalty. Any person who fails to pay to the City the amount of any fine imposed pursuant to the provisions of this section, is liable for the payment of an additional delinquency penalty. The delinquency penalty is equal to one hundred (100) percent of the amount due the city not to exceed one hundred (100) dollars, or if a portion of the fine amount was timely paid one hundred (100) percent of the amount of the fine remaining unpaid to the city not to exceed one hundred (100) dollars. D. Failure of any person to pay the fines assessed by an Administrative Citation may result in the matter being referred for collection which may include, without limitation, the filing of a small claims court action. 1.18.080 Issuing Permits or Licenses If an Enforcement Officer issues an Administrative Citation because the Citee lacks a required Permit (as that term is defined in Section 16.02.280) or license required by this code, and the fine is delinquent, the City will not issue the Permit or license, until the delinquent fine, and any applicable penalties and interest, is paid. 1.18.090 Administrative Review and Hearing. 4111/ A. Initial Administrative Review— Request. The Citee may request an initial administrative review of the citation within fifteen (15) days of its issuance by submitting a request to the City Clerk. This request must be made in writing and set forth with particularity the reasons the Citee believes a Violation did not occur or that the Citee 5 of 12 ipwas not responsible for the Violation(s); must include a copy of the citation; and contain the address to which the conclusions of the City's review should be mailed. A request for an initial administrative review is a mandatory prerequisite to a request for an administrative hearing. B. Initial Administrative Review— Procedure. The City Clerk will forward the Initial Administrative Review Request to the Department Director supervising the Enforcement Officer who issued the Administrative Citation for review. C. Initial Administrative Review— Decision. 1. Within fifteen (15) days upon receiving the request, the Department Director will review the request and provide the City Clerk with written notification that: (a) The citation should be vacated because there was no Violation, or the Citee was not responsible for the Violation, and setting forth the basis for that conclusion; or (b) There is no justification found for vacating the citation. 2. The City Clerk will mail a copy of the Decision to the Citee at the address on the request for Initial Administrative Review along with a notice establishing the fine due date and the procedure for requesting an administrative hearing. D. Request for Hearing. If the Citee wishes to contest the conclusion of the initial administrative review, the Citee must request an administrative hearing within fifteen (15) days after the date the City served the Citee with notice of the initial administrative review decision. Requests must be submitted to the City Clerk and be accompanied by an advance deposit of the fine or request a hardship waiver. E. Hardship Waiver. Citees financially unable to make an advance deposit of opthe administrative fine may file for a hardship waiver. The request must be filed with the City Clerk. 1. The City Clerk will review the request and determine whether a waiver is justified. A waiver may only be approved if the request for waiver is accompanied by an affidavit signed under penalty of perjury, together with any supporting documents or materials demonstrating the Citee's actual financial inability to deposit the full amount of the fine 2. The City Clerk will inform the Citee in writing within fifteen (15) days regarding whether the waiver was approved. The determination must be served upon the Citee by mail at the address provided in the waiver application. The City Clerk's determination is final. 3. Should the City Clerk determine that a waiver is unjustified, the Citee must deposit the fine amount with the City not later than fifteen (15) days after the date of that decision. Failure to make a deposit within fifteen (15) days after waiver denial is deemed a waiver of the Citee's right to an administrative hearing and the administrative fine will be deemed delinquent. F. Notification of Hearing. Upon receipt of the payment of the Administrative Fine and request for a hearing, the City shall give notice to the Citee of the time, date, and location of the hearing. The hearing shall be held not less than fifteen (15) days nor more than sixty (60) days after the receipt of the request. Any documentation, other than the Administrative Citation, that the enforcement official has submitted or will submit to the hearing officer shall be sent to the Citee by regular first class mail at least 0 five days before the date on which the hearing is scheduled. The documentation shall be made available upon request at the time of the hearing. G. Selection of hearing officer. The City Manager may designate the hearing officer for the Administrative Citation hearing by appointment or contract. 6 of 12 H. Evidentiary Rules. The City bears the burden of proving a Violation of the ID code by a preponderance of the evidence. The Administrative Citation and any additional reports submitted by the enforcement official constitutes prima facie evidence of the respective facts contained in those documents. Both the Citee and the Enforcement Officer have the opportunity to testify, cross-examine witnesses and present additional evidence concerning the Administrative Citation. Evidence may include, without limitation, witness testimony, documents, or other similar evidence. Formal rules of evidence do not apply, but all evidence presented must be relevant and material to the issues of whether the Violation alleged in the citation occurred or whether the Citee was responsible for the Violation. I. Waiver of Personal Appearance at Hearing. In lieu of personally appearing at an administrative hearing, the Citee may request that the hearing officer decide the matter based upon the citation itself and written argument and any documentary evidence signed under penalty of perjury submitted prior to the time of the scheduled hearing by the Citee. J. Failure to Appear at Hearing. Failure of a Citee to appear at the hearing is deemed a waiver of the right to be personally present at the hearing. The hearing officer must then decide the matter based upon the citation itself, any documentary evidence previously submitted, and any additional evidence that may be presented at the hearing by the Enforcement Officer. K. Attendance of Enforcement Officer. The Enforcement Officer who issued the Administrative Citation may, but is not required to, attend the administrative hearing. If 411 the Enforcement Officer does not attend, the Enforcement Officer may before the hearing date submit reports, photos, or other documentation regarding the Violation to the hearing officer for consideration at the hearing. L. Continuation of Hearings. The hearing officer may continue any hearing and request additional information from the Enforcement Officer or Citee before issuing a written decision. M. Decision of Hearing Officer. Based upon the evidence presented, the hearing officer shall provide a written decision to the parties within fifteen (15) days of the hearing with one of the following determinations: 1. Determine that the Violation for which the citation was issued occurred, and impose a fine in the amount set forth in the fine and penalty schedule, and if the Violation has not been corrected as of the date of the hearing, order correction or abatement of the Violation. In this event, the City can retain the fine deposited by the responsible person. 2. Determine that the Violation for which the citation was issued occurred, but that the responsible party has introduced credible evidence of mitigating circumstances warranting imposition of a lesser fine than that prescribed in the fine and penalty schedule, or no fine at all, and impose such lesser fine, if any; and if the Violation has not been corrected as of the date of the hearing, order correction or abatement of the Violation. In this event, the City can retain all or a portion of the fine deposited by the responsible person as applicable. 3. Determine that the Violation for which the citation was issued did not occur or 0 that the condition did not constitute a Violation of this code, or that the person cited was not the responsible party. In this event, the City shall refund the deposit, if any, within fifteen (15) days of the decision. A finding by the hearing officer that no Violation occurred constitutes a dismissal of the Administrative Citation at issue, but does not 7 of 12 111110 have any effect on any other Administrative Citations issued or any other action taken by the City. 4. The administrative hearing officer's decision must explain the basis for the decision and be served upon the responsible party by first class mail to the address stated on the request for hearing form. If applicable, the order must set forth the date by which compliance must be achieved and the imposed fine paid to the City. The order is final on the date of mailing, which is deemed the "date of service," and must notify the responsible person of the right to appeal to the Superior Court, as further described in Section 1.18.100. There is no right to an appeal other than as provided in Section 1.18.100. Should the hearing officer uphold the Administrative Citation and a hardship waiver was previously granted, the due date for paying the administrative fine will be thirty (30) days from the date of the notice of the hearing officer's decision. 1.18.110 Judicial Review/Right to Appeal. If an administrative order is rendered in favor of the City, the Citee may seek judicial review of the administrative order in the San Bernardino County Superior Court, Chino District, by filing an appeal of the administrative order pursuant to, and paying the fee required by, Government Code § 53069.4 within twenty (20) days after service of the administrative order. Pursuant to Government Code § 53069.4, the appealing party must serve a copy of the notice of appeal in person or by first-class mail upon the City Clerk. If no notice of appeal is filed within the twenty (20) day period, the decision is lipfinal. 1.18.120 Collection and Lien Procedures. A. Recovery of Administrative Citation Fines and Costs. In addition to any other legal remedy, the City may place a lien on property owned by the Citee in an amount equal to the sum of the fines delinquent for more than ninety (90) days, plus penalties and interest. Imposition of a lien must stem from a citation for the condition or use of real property, or its improvements that is owned by the Citee. B. Lien Procedure. 5. The City Manager may initiate proceedings to record a lien conforming with this code if the decision is not appealed. 6. Before recording the lien, the Department Director must submit a report to the City Manager, or designee, stating the amount due and owing. 7. The Department Director must then contact the City Clerk and arrange a time, date, and place for the City Council to consider the report and any protests or objections to it. 8. The Department Director must serve the Citee with a hearing notice not less than ten (10) days before the hearing date. The notice must set forth the amount of the delinquent administrative fine, and any penalties and interest that is due. Notice must be delivered first-class mail, postage prepaid, addressed to each Citee's address as it appears on the last equalized assessment roll or supplemental roll of the County of San • Bernardino, whichever is more current. Service by mail is effective on the date of mailing and failure of Citee to actually receive notice does not affect its validity. 9. At the conclusion of the hearing, the City Council will adopt a resolution confirming, discharging, or modifying the lien amount. 8 of 12 ill C. Recording a Lien. Within thirty (30) days following the City Council's adoption of a resolution imposing a lien, the Department Director will file same as a judgment lien in the San Bernardino County Recorder's Office. Before recordation of the lien, the City must give notice to the owner of record of the subject parcel in the manner required by Government Code § 38773.1(b). D. Administrative Fee. Each Citee against whose property an assessment is levied pursuant to this chapter will also be assessed an administrative fee in an amount established by City Council resolution based on the costs incurred in levying the assessment. The administrative fee will be included in the lien amount approved by the City Council and recorded against the Citee's property. E. Satisfaction of Lien. Once the City receives full payment for outstanding principal, penalties, and costs, the Department Director will either record a notice of satisfaction or provide the Citee with a notice of satisfaction for recordation at the San Bernardino County Recorder's Office. This notice of satisfaction will cancel the City's lien. SECTION 2. Definition of Day The following definition is added in alphabetical order to Chino Hills Municipal Code Section 1.04.080, as follows: "Day" means a calendar day, unless otherwise specifically expressed. I. SECTION 3. Section 1.36.060 is added to the Chino Hills Municipal Code to read in its entirety as follows: Section 1.36.060 Administrative Citation In addition to other penalties provided by law or by this code, any condition caused or permitted to exist in violation of any provision of this code or any ordinance of the city or of any condition of any Permit (as that term is defined in Section 16.02.280) issued by the City may be subject to Administrative Citation in accordance with Chapter 1.18 of this code. SECTION 4. Severability If any provision, clause, sentence, or paragraph of this chapter or the application thereof to any person, establishment, or circumstance shall be held invalid, such invalidity shall not affect the other provisions or application of this chapter which can be given effect without the invalid provision or application, and to this end, the provisions of this chapter are hereby declared to be severable. SECTION 5. Environmental Review This ordinance is exempt from review under the California Environmental Quality doAct (California Public Resources Code §§ 21000, et seq., "CEQA") and CEQA regulations (14 California Code of Regulations §§ 15000, et seq.) because it does not involve any commitment to a specific project which could result in a potentially significant physical impact on the environment; and establishes rules and procedures to implement an organizational or administrative activity that will not result in direct or 9 of 12 41110 indirect physical changes in the environment. Accordingly, this Ordinance does not constitute a "project" that requires environmental review. (See specifically 14 CCR § 15378(b)(2, 5).). SECTION 6. Effective Date This Ordinance shall be in full force and effect thirty (30) days after its final passage and adoption. SECTION 7. Upon the effective date of this Ordinance, the provisions hereof shall supersede any inconsistent or conflicting provisions of the San Bernardino County Code as the same were adopted by reference by City Ordinance Nos. 91-01 and 92-02. SECTION 8. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this Ordinance is, for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portion thereof be declared invalid or unconstitutional. SECTION 9. The City Clerk shall certify as to the adoption of this Ordinance 4111) and shall cause a summary thereof to be published within fifteen (15) days of the adoption and shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933. 41110 10 of 12