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HomeMy WebLinkAboutORD 13 (1999)ORDINANCE NO. x(1999) AN ORDINANCE OF THE CITY OF DIAMOND BAR ESTABLISHING ADMINISTRATIVE PROCEDURES AND PENALTIES FOR ALL VIOLATIONS OF THE DIAMOND BAR MUNICIPAL CODE AND AMENDING THE DIAMOND BAR MUNICIPAL CODE. THE CITY COUNCIL OF THE CITY OF DIAMOND BAR DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City of Diamond Bar Municipal Code is hereby amended by deleting Chapter 1.04 and adding a new Chapter 1.04 to read as follows: CHAPTER 1.04 PENALTIES — CIVIL REMEDIES. Section 1.04.010. Scope of Enforcement. (a). Violations of Municipal Code — No person shall violate any provisions or fail to comply with any of the requirements of this Code. Violations of this Code are punishable in accordance with this Chapter. If a violation constitutes a continuing violation or is otherwise of the nature that it can be remedied, the Responsible Person, as defined, shall correct the violation within thirty (30) days of issuance of the administrative citation. (b). Continuing Violations - Each and every day, or any portion thereof, during which any violation of any provision of this Code or any failure to comply with any requirement of this Code is committed, continued or permitted shall constitute a separate offense and shall be deemed punishable in accordance with this Chapter. (c). Administrative Citations Which May Be Treated as Misdemeanors. Any person who violates the same provision, or fails to comply with the same requirement, of any Code section subject to enforcement under this Chapter more than three (3) times within a twelve (12) month period shall be guilty of a misdemeanor for each violation committed thereafter within that same twelve (12) month period, and upon conviction thereof, shall be punishable by a fine not exceeding $1,000.00 or by imprisonment not exceeding six months, or by both such fine and imprisonment. (d). Nuisance — Any violation of any provision of this Code or any failure to comply with any of the requirements of this Code constitutes a nuisance, and may be abated by the City through civil process by means of restraining order, preliminary injunction, or in any other manner provided by law for the abatement of such nuisances. (e). Severability — The City Council declares that, should any title, chapter, provision, section, paragraph, sentence or word of this Code be rendered or declared invalid by any final court action by a court of competent jurisdiction, or by reason of any preemptive legislation, the remaining titles, chapters, provisions, sections, paragraphs, sentences and words of this Code are severable and shall remain in full force and effect. Section 1.04.020. Definitions. The following words and phrases, when used in the context of this Chapter, shall have the following meanings: (a). Enforcement Official — A person, who has Penal Code Citation Certification Training, designated by the City Manager as an Enforcement Official or any member of the Sheriff's Department who is authorized to enforce the provisions of the Diamond Bar Municipal Code. (b). Legal Interest - Any interest that is represented by a deed of trust, quitclaim deed, mortgage, judgement, lien, tax or assessment lien or other similar instrument, which is recorded with the County Recorder. (c). Responsible Person — Any person whom an Enforcement Official determines is responsible for causing or maintaining a violation of the Code. The term "Responsible Person" includes, but is not limited to, a property owner, tenant, person with a Legal Interest in real property, or person in possession of real property. Section 1.04.030. Administrative Citation. Any violation of any section of this Code shall be subject to issuance of an administrative citation by an Enforcement Official as provided in this Chapter. In the case of violations of the Building, Plumbing or Electrical Codes, an administrative citation shall not be issued until after the responsible person has been provided notice and a reasonable opportunity to correct the violation, and has failed to do so. Payment of any administrative citation shall not bar further enforcement action by the City if the violation is not corrected or otherwise continues. Section 1.04.040. Content of Administrative Citation. An administrative citation shall contain all of the following information: (a) The date and location of the violation and the approximate time the violation was observed. (b) The Code section violated and a description of how the section was violated. (c) The amount of the fine imposed for the violation, and where and when the fine shall be paid. (d) An order prohibiting another occurrence of the Code violation. (e) A description of the administrative citation review process, including the time within which to contest the administrative citation and the place from which to --- obtain a Request for Hearing Form to contest the administrative citation. (f) The name and signature of the citing Enforcement Official. Section 1.04.050 Procedure for Serving Administrative Citation. An Enforcement Official may issue an administrative citation, on a form approved by the City Manager, to a Responsible Person, as follows: (a) If the Responsible Person is an individual, the Enforcement Official shall attempt to locate the individual and issue to that individual an administrative citation. If the address of the individual is known to the City, a copy of the administrative citation also Shall be mailed to the individual by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice shall be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. (b) If the Responsible Person is a corporation, the Enforcement Official shall attempt to locate any one of the following individuals and issue to that individual an administrative citation: the president or other head of the corporation, a vice - resident, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process in a civil action. If the office address of any of the above listed individuals is known to the City, a copy of the administrative citation also shall be mailed to one of those individuals by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice shall be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. (c> If the Responsible Person is a business other than a corporation, the Enforcement Official shall attempt to locate the business owner and issue the business owner an administrative citation. If the Enforcement Official can locate only the manager of the business, the administrative citation may be given to the manager of the business. If the address of the business is known, a copy of the administrative citation also shall be mailed to that address to the attention of the business owner or a Responsible Person. The mailing shall be sent by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. if a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. (d) The Enforcement Official shall attempt to obtain on the administrative citation the signature of the Responsible Person, or in cases in which the Responsible Person is a corporation or business, the signature of the person served with the administrative citation. If a Responsible Person or person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation or of subsequent proceedings. (e) If the Enforcement Official is unable to locate a Responsible Person for the violation, the administrative citation shall be mailed to the Responsible Person by certified mail, postage prepaid, return receipt requested. Simultaneously, the same notice may be sent by regular mail. If a notice sent by certified mail is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the notice that was sent by regular mail is not returned. (f) If the Enforcement Official does not succeed in serving the Responsible Person personally, or by certified mail or regular mail, the Enforcement Official 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. (g) If the Enforcement Official does not succeed in serving the Responsible Person personally, by certified mail or regular mail, and the City is not aware that the Responsible Person has a Legal Interest in any real property within the City, the Enforcement Official shall cause the administrative citation to be published once a week for four successive weeks in a local newspaper published at least once a week. Section 1.04.060 Administrative Fine. The fine imposed pursuant to this Article for a particular violation shall be in the amount set forth in the Schedule of Fines and Penalties established by Resolution of the City Council. The Schedule of Fines and Penalties shall specify the amount of any late payment charges imposed for failure to pay the fine by the due date. Section 1.04.070 Payment of Administrative Fine. The administrative fine shall be paid to the City within thirty (30) days from the date of service of the administrative citation. If, after a hearing requested pursuant to Section 1.04.080, the Hearing Officer determines that the administrative citation should be canceled, the administrative fine shall be refunded. Section 1.04.080. Request for Administrative Hearing. Any Responsible Person to whom an administrative citation is issued may contest the citation no later than thirty (30) days from the date of service of the administrative citation by (1) completing a Request for Hearing Form and returning it to the City; and (2) either depositing the administrative fine with the City or providing notice that a request for an Advance Deposit Hardship Waiver has been filed pursuant to Section 1.04.090. A Request for Hearing Form may be obtained from the department specified on the administrative citation. The person requesting the hearing shall be notified by certified mail, return receipt requested, of the time and place of the hearing at least ten (10) days before the date of the hearing. Any documentation, other than the administrative citation, which the Enforcement Official has submitted or will submit to the Hearing Officer shall be sent to the person requesting the hearing by certified mail, return receipt requested, and regular via first class mail at least five (5) days before the date of the hearing. If the information sent by certified mail is returned unsigned, then service shall be deemed effective by regular first class mail. Any information submitted by the Enforcement Official shall also be made available to the person requesting the hearing at the time of the hearing. Section 1.04.090. Advance Hardship Waiver Deposit. Any Responsible Person who requests a hearing to contest an administrative citation and who is financially unable to deposit the administrative fine as required in Section 1.04.070. may file a request for an Advance Deposit Hardship Waiver. The request shall be filed with the Development Services Division on an Advance Deposit Hardship Waiver application form, available from the department, no later than ten (10) days. after service of the administrative citation. The City Manager or his/her Designee may issue an Advance Deposit Hardship Waiver only if the person requesting the waiver submits to the City Manager or his/her Designee a sworn affidavit, together with any supporting documents, demonstrating to the satisfaction of the City Manager or his/her Designee the person's financial inability to deposit with the City the full amount of the fine in advance of the hearing. Written proof of financial hardship, at a minimum must include tax returns, financial statements, bank account records, salary records or similar documentation demonstrating that the Responsible Person is unable to deposit the penalty. The City Manager or his/her Designee shall issue a written decision specifying the reasons for issuing or not issuing the waiver. The decision shall be served upon the person requesting the waiver by certified mail, return receipt requested and regular first class mail. If the City Manager or his/her Designee determines that the waiver is not warranted, the person shall remit the full amount of the fine to the City within ten (10) days of receipt of the City Manager or his/her Designee's written decision. Section 1.04.100. Time for Administrative Hearing. Only after a Request for Hearing Form is filed, and the Responsible Person requesting the hearing has either deposited the administrative fine in full or obtained an Advance Deposit Hardship Waiver, shall the City set the date and time for the Administrative Hearing. The hearing shall be set for a date not less than fifteen (15) days nor more than sixty (60) days after the Request for Hearing Form is filed, and the administrative fine is deposited with the City or an Advance Deposit Hardship Waiver is issued. The City shall send notice of the date, time, and place of the hearing to the person requesting the hearing by certified mail, return receipt requested at least ten (10) days before the date of the hearing. Section 1.04.110. Request for Continuance of Hearing. The Responsible Person requesting a hearing may request one continuance, but in no event may the hearing begin later than ninety (90) days after the Request for Hearing Form is filed, and the administrative fine is deposited with the City or an Advance Deposit Hardship Waiver is issued. Section 1.04.120. Appointment of Administrative Hearing Officer. The hearing shall be conducted by an Administrative Hearing Officer appointed by the City Manager to perform such hearings. Section 1.04.130. Procedures at Administrative Hearing. The Responsible Person may attend the hearing in person or in lieu of attending may submit written argument and documentation under penalty of perjury prior to the time scheduled for the hearing. Administrative Hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case and to cross-examine witnesses. The City bears the burden of proof at an Administrative Hearing to establish a violation of the City Code. The administrative citation and any additional reports submitted by the Enforcement Official shall constitute prima facie evidence of the facts contained in those documents. The Administrative Hearing Officer must use a preponderance of evidence as the standard of evidence in deciding the issues. Section 1.04.140. Failure to Attend Administrative Hearing. If the Responsible Person fails to attend the hearing or fails to submit arguments in writing, the Administrative Hearing Officer will render a decision based on the documents that have been received and the Responsible Person will be deemed to have waived his/her right to an Administrative Hearing. Under those circumstances, the Administrative Hearing Officer may request additional information from either the Responsible Person or the Enforcement Official as may be necessary to render a decision. If service of the Administrative Hearing is made by posting the citation on real property within the City in which the Responsible Person has a Legal Interest, and the Responsible Person provides verifiable and substantial evidence that removal of the administrative citation from the property by a third party caused the Responsible Person's failure to attend the scheduled hearing, the Responsible Person shall be entitled to an Administrative Hearing. Section 1.04.150. Decision of Administrative Hearing Officer. No later than thirty (30) days after the date on which the Administrative Hearing concludes, the Administrative Hearing Officer shall issue a written decision to uphold or cancel the administrative citation. The Administrative Hearing Officer shall set forth the reasons for the decision. The decision shall be served upon the Responsible Person by the applicable method set forth in Section 1.04.050. If the Administrative Hearing Officer upholds the administrative citation, the City shall retain the -- fine deposited by the Responsible Person. If the Administrative Hearing Officer upholds the administrative citation and the fine has not been deposited pursuant to an Advance Deposit Hardship Waiver, the Administrative Hearing Officer shall specify in the decision a payment schedule for the fine. If the Administrative Hearing Officer cancels the administrative citation, any fine deposited with the City shall be promptly refunded. If the Administrative Hearing Officer determines that the violation for which the citation was issued occurred, but that the Responsible Person has introduced credible evidence of mitigating circumstances warranting imposition of a lesser penalty than that prescribed in the penalty schedule, the Administrative Hearing Officer may impose a lesser penalty or no penalty at all. The Administrative Hearing Officer's written decision is final, and shall notify the Responsible Person of his/her right to appeal as provided in Section 1.04.160. Section 1.04.160. Appeal of Decision of Administrative Hearing Officer. Within twenty (20) days after service of the decision of the Administrative Hearing Officer upon the Responsible Person, he/she may seek review of the decision by filing a notice of appeal with the municipal court. The Responsible Person shall serve upon the City Clerk either in person or by first class mail a copy of the notice of appeal. If the Responsible Person fails to timely file a notice of appeal, the Administrative Hearing Officer's decision shall be deemed confirmed. Section 1.04.170. Late Payment Charges. Any person who fails to pay to the City on or before the due date an administrative fine imposed pursuant to the provisions of this Chapter, shall be liable for the payment of any applicable late payment charges set forth in the Schedule of Fines and Penalties established by Resolution of the City Council. 6 Section 1.04.180. Collection of Administrative Fine. The City may collect any past -due administrative fine or late payment charges by use of any available legal means. Section 1.04.190. Failure to Pay Administrative Fine. Failure to pay an administrative fine is a misdemeanor. In that event, or if the City prevails in an appeal to the municipal court pursuant to Section 1.04.160, and the Responsible Person fails to comply with the final Administrative Order, the City may file a criminal misdemeanor action against the Responsible Person. Filing a criminal misdemeanor action does not preclude the City from using any other legal remedy available to gain compliance with the Administrative Order. SECTION 2 The City Clerk is directed to certify to the passage and adoption of the Ordinance and to cause it to be published or posted as required by law. SECTION 3 If any section, subsection, sentence, clause, portion, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of any competent jurisdiction, such decision shall not affect the validity of the remaining sections, subsections, sentences, clauses, portions, or phrases of this Ordinance. The City Council hereby declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, portion, or phrase without regard to whether any other section, subsection, sentence, clause, portion, or phrase of the Ordinance would be subsequently declared invalid or unconstitutional. PASSED, APPROVED AND ADOPTED this 2nd day of November—,1999. ayor / I, Lynda Burgess, the City Clerk of the City of Diamond Bar, do hereby certify that the — foregoing Ordinance was introduced at a regular meeting of the City Council of the City of Diamond Bar California, held on the 19t11ay of October , 1999, and was finally passed at a regular meeting of the City Council of the City of Diamond Bar, held on the 2 n r� day of NnuemhP r , 1999, by the following vote: AYES: COUNCIL MEMBERS: Ansari, Herrera, MPT/O' Connor, M/ Chang NOES: COUNCIL MEMBERS: Hu f f ABSENT: COUNCIL MEMBERS: None ABSTAINED: COUNCIL MEMBERS: None ATTEST: 4LD&URGESS , ity Clerk City of Diamond Bar