2003-06 Violation & Citation ORDINANCE NO. 2003-06
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ENCINITAS,
CAL~ORNIA, AMENDING CHAPTER 1.08 OF THE ENCINITAS MUNICIPAL
CODE TO ESTABLISH AN ADMINISTRATIVE CITATION PROCEDURE AND
CIVIL PENALTIES FOR VIOLATIONS OF THE MUNICIPAL CODE
WHEREAS, the City Council desires to provide effective methods to enfome the
provisions of the Municipal Code by establishing additional methods of enforcement
allowed by law.
NOW THEREFORE, the City Council does ordain as follows:
SECTION 1:
Section 1.08.080 of Chapter 1.08 of the Encinitas Municipal Code shall be renumbered to
1.08.085, and a new Section 1.08.080 shall be adopted to read as follows:
"1.08.080 Administrative Citations.
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 fmc. 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. Said reasonable period of time shall be at least five
days, but not more than forty-five 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 Adminlgtrative 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 1.08.050 A of this Code. I'fthe violation would
otherwise constitute a misdemeanor, the fine shall not exceed the maximum amount of
the fine established for a misdemeanor in Section 1.08.050 B of this Code.
F. Time to Pa,/. All fines shall be paid to the City within thirty (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 per/od, 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 Heating.
1. Any person issued an Administrative Citation may contest the issuance of the
Citation by filing a written request for hearing no later than fifteen (15) 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 Paragraph I of this Section.
3. The person requesting the heating shall be notified of the time and place set for
the hearing at least ten (10) calendar days prior to the date of the heating. The heating
shall be set for a date that is not less than fifteen (15) calendar days from the date that a
completed request for administrative heating 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 (3) 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 heating. 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 (5) days of
service of the decision, or at least twenty-four (24) hours before the heating, whichever is
sooner.
J. Appointment of Hearing Officer. The City Manager shall designate a fair and
impartial Heating Officer for the Administrative Citation heatings.
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. Ifa 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 thirty (30) days after the hearing. The City may charge a
reasonable fee for reproducing the tapes. Ifa 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 roles 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 role 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 thirty (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 thirty (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 Heating Officer may file an appeal with the San Diego County Superior Court within
twenty (20) days of the service of the Hearing Officer's decision, in accordance with the
provisions in California Government Code Section 53069.4.
SECTION 2: Chapter 1.08 of the Encinitas Municipal Code shall be amended to add
Section 1.08.083 to read as follows:
"1.08.083 Civil Penalties. 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."
SECTION 3: Chapter 1.08 of the Encinitas Municipal Code shall be amended to add
Section 1.08.035 to read as follows:
"1.08.035 Persons Responsible. 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.
SECTION 4: Chapter 1.08, Section 1.08.040 of the Encinitas Municipal Code shall be
amended to read as follows:
"1.08.040 Nature of Violations.
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.
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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.
SECTION 5: Chapter 1.08, Section 1.08.050 of the Encinitas Municipal Code shall be
amended to delete paragraphs C and D, re-letter paragraph E as paragraph D, and adopt a
new paragraph C to read as follows:
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.
SECTION 6: Chapter 1.08, Section 1.08.060, paragraph B, of the Encinitas Municipal
Code shall be amended to read as follows:
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 ~he
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. (GC section 38773.5.)
SECTION 7: Chapter 1.08, Section 1.08.070 of the Encinitas Municipal Code shall be
amended by changing the title of the section to read as follows:
"1.08.070 Administrative Nuisance Abatement and Cost Recovery."
SECTION 8: Chapter 1.08, Section 1.08.070, Paragraph A. 2, of the Encinitas Municipal
Code shall be amended to read as follows:
"1. The City Manager, or the City Manager's designee, shall serve as the heating
officer and shall set an administrative heating 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 heating, 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;
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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
ten days and publication thereof in a newspaper of general cimulation."
SECTION 9: Chapter 1.08, Section 1.08.070 of the Encinitas Municipal Code shall be
amended bX adding the following sentence to the end of Paragraph B.4:
"The cost of abatement may include related administrative costs."
SECTION 10: Chapter 1.08, Section 1.08.070, Paragraph C.2 of the Encinitas Municipal
Code shall be amended to read as follows:
"2. No less than 30 days prior to the heating, 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 mall 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 often days
and publication thereof in a newspaper of general circulation."
SECTION 11: Chapter 1.08, Section 1.08.070 of the Encinitas Municipal Code shall be
amended by adding the following to the end of Paragraph C:
"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 may 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."
SECTION 12: Chapter 1.08, Section 1.08.070 of the Encinitas Municipal Code shall be
amended by adding the following as Paragraph D:
i'D. Summary Abatement.
1. If a Code Enfomement 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 Paragraph A.
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 5
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 enfomement file.
5. A heating to assess costs shall be held pursuant to Paragraph C."
SECTION 13: Chapter.l.08, Section 1.08.090 of the Encinitas Municipal Code shall be
amended by replacing the term "Code Citation Officer", wherever it appears, with the
term "Code Enforcement Officer".
SECTION 14: Chapter 1.08, Section 1.08.090, Paragraph A, of the Encinitas Municipal
Code shall be amended to read as follows:
"A. A Code Enfomement 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."
SECTION 15: This ordinance shall be effective 30 days after its adoption and the City
Clerk shall certify to the adoption of this Ordinance and cause the same to be published at
least once in a newspaper of general circulation within 15 days of its adoption.
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INTRODUCED AND FIRST READ at a regular meeting of the City Council of the City
of Encinitas, California, held the 12.t.h day of ~'ah ,2003, and thereafter PASSED
AND ADOPTED at a regular meeting of said City Council held the 19 day of
March ,2003, by the following vote, to wit:
AYES: Bond, Dalager, Guerin, Houlihan, Stocks.
NOES: None.
ABSENT: None.
APPROVED:
J~erome Stash'Mayor
eborah Cervone, City Clerk
CERTIFICATE OF CITY CLERK
Ii Deborah Cervone, City Clerk of the City of Encinitas, California, do hereby certify the
foregoing to be a tree and correct copy of Ordinance No. 2aan-n~ ~_ duly
pas. sed and adopted by the City Council of said City on the date and by the vote therein
recited and that the same has been duly published according to law.
Deborah Cervone, City Clerk
(SEAL OF CITY)
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