HomeMy WebLinkAboutOrd 1892ORDINANCE NO. 1892
AN ORDINANCE OF THE CITY OF BURLINOAME
AMENDING TITLE 1 OF THE BURLINGAME MUNICIPAL CODE TO ADD A
CHAPTER 1.14, ADMINISTRATIVE REMEDIES
WHEREAS current Title 1 of the Burlingame Municipal Code provides for infraction and
misdemeanor penalties for violations of the Code in Chapter 1. 12, and states that such
violations constitute a public nuisance; and
WHEREAS the City has evaluated these provisions over time and has determined that
effective code enforcement requires the availability of administrative fines and penalties
in addition to the existing enforcement provisions in the Code; and
WHEREAS the City wishes to provide for the fair implementation of such administrative
remedies, ensuring both their effectiveness and that the due process rights of alleged
violators are adequately protected; and
WHEREAS the City has evaluated its own needs, due process considerations, and
existing models from other jurisdictions and has determined that the following protects
and balances the interests of the City and alleged violators;
NOW, THEREFORE, the City Council of the City of Burlingame does hereby ordain as
follows:
DIVISION 1:
Anew Chapter 1.14 is hereby added to Title 1 of the Burlingame Municipal Code as
follows:
Chapter 1.14
ADMINISTRATIVE REMEDIES
1. 14.010 Definitions.
For the purposes of this article, the following words shall have the meanings set
forth below:
(a) "Enforcement officer" shall mean any City employee or agent of the City
designated with the authority to enforce any provision of this code.
(b) "Enforcement official" means the principal supervisor for any City department
or division charged with responsibility for enforcement of any provision of this code.
1.14.020 Applicability.
hl addition to all other civil remedies and as an alternative to any criminal
remedies, the city may pursue an administrative citation or administrative compliance
order pursuant to this article as authorized pursuant to California Government Code
section 53069.4. Use of the administrative citation and administrative compliance order
shall be at the sole discretion of the enforcement officers and enforcement officials
authorized to proceed under this article. Payment of an administrative penalty under this
article shall not bar enforcement proceedings, including any alternative remedy, for any
continuation or repeated occurrence of any code violation.
(a) Enforcement. Enforcement and collection of the penalties, costs and other
charges pursuant to Sections 1.14.100 and 1.14.110 shall require the advice and consent
of the City Attorney.
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1.14.030 Amount of administrative penalties.
The amounts of administrative penalties for code violations shall be not less than
fiRy dollars ($50.00) nor more than the maximum amount of the penalty or penalties for
criminal violations as set forth in the Municipal Code. The schedule of administrative
penalties shall be set by the City Manager and shall specify the amount of any late
payment charges and any increased penalties for repeat violations. Such schedule shall
be publicly available in the Office of the City Clerk and posted and/or published in a
manner consistent with other City -designated fines and penalties.
1.14.040. Hearing officer.
The City Manager shall designate a hearing officer for administrative hearings
who shall not be the citing enforcement officer. The employment, performance
evaluation, compensation and/or benefits of the hearing officer shall not be directly or
indirectly conditioned upon the amount of administrative penalties or the rulings upheld,
revised or otherwise issued by the hearing officer. The hearing officer designated under
this section may be an employee of the City or an outside contractor, as determined by
the City Manager in his or her discretion.
1.14.050 Service of citations, orders and notices.
All citations, orders and notices required by this article may be served either by
personal delivery or certified mail, postage prepaid, return receipt requested, addressed to
a location reasonably calculated to give notice to the alleged violator, and shall be
deemed effective on the date of personal delivery or when delivery is attempted. If the
certified mail receipt is returned unsigned, then service may instead be effected by first
class mail, postage prepaid, provided that the notice sent by regular mail is not returned
by the postal service as undeliverable, and shall be deemed effective on the date three (3)
days following deposit in the mail. Service may be effected alternately or additionally by
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posting a copy of the order at a conspicuous location on any real property that is the
subject of the order.
1.14.060. Hearing.
(a) Notice and time of hearing. Written notice of hearing shall be served on any
person to whom the citation or compliance order was addressed and shall contain the
date, time and place at which the hearing shall be conducted. The hearing shall be set for
a date that is not less than fifteen (15) days and not more than sixty (60) days from the
date of the notice of hearing. The hearing officer may approve a continuance of the
hearing to any date for good cause.
(b) Hearing procedure. Hearings held pursuant to this Section shall be informal
and the rules of evidence shall not apply. However, at the hearing, the alleged violator
shall have the opportunity to testify, present evidence, and to cross-examine witnesses
concerning the administrative citation or compliance order. The alleged violator may
appear personally or through an attorney. Preheating discovery is not authorized.
Subpoena of witnesses and documents shall be permitted as authorized by law. The
hearing officer may conduct the hearing informally, both as to rules of procedure and
admission of evidence, in any manner which will provide a fair hearing, and may
continue the hearing to obtain additional evidence. The administrative citation or
administrative compliance order and any additional report submitted by the enforcement
officer, shall constitute presumptive evidence of the respective facts contained in those
documents.
(c) Failure to appear. The failure of any alleged violator to appear at the hearing
per notice or, in the alternative, to present writt
after
en or demonstrative evidence
shall constitute an admission of Lite
violation by the alleged violator and an exhaustion of
administrative remedies that may bar judicial review.
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1.14.070. Administrative order.
(a) Decision process. After considering all the testimony and evidence submitted
at the hearing, the hearing officer shall issue a written administrative order, including
findings regarding the existence of each violation and the extent of compliance, the
reasons for that decision and notice of the right to judicial review, within thirty (30) days
following completion of the hearing. The alleged violator shall be served with a copy of
the administrative order within ten (10) calendar days following its issuance. Service of
the administrative order shall be in a form consistent with that described in Section
1.14.050. The administrative order shall be final upon service on the violator, subject
only to judicial review as allowed by law.
(b) Penalty. If the hearing officer determines that the alleged violator committed
the violation alleged by a preponderance of the evidence, the hearing officer shall
establish an administrative penalty and a date the penalty and any administrative costs
shall be due and payable. If the hearing officer finds that the administrative citation
should not be sustained or that the amount of the administrative penalty should be
reduced, the City shall refund any appropriate amounts as designated in the order paid
pursuant to a previously imposed citation or penalty within thirty (30) days of the order.
(c) Administrative costs. The hearing officer may assess administrative costs
against the violator fr
om the date on which compliance was ordered. These
administrative costs may include any and all costs incurred by the City in connection with
the matter before the hearing officer, including, but not limited to, costs of inspection,
investigation, staffing costs incurred in preparation for the hearing and for the hearing
itself, and costs for all reinspection.
(d) Jurisdiction. After the administrative order becomes final, the hearing officer
shall maintain continuing jurisdiction until full compliance is achieved and shall have the
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power to modify the administrative
order, after
providing the
person subject to the
administrative order with notice and an opportunity
to be heard.
{e). Exception. The City Attorney has independent jurisdiction to pursue alternate
remedies for the same violations notwithstanding the pendency of administrative
proceedings pursuant to this article.
1.14.080. Determination of administrative penalties.
The hearing officer may impose administrative penalties in an amount not to
exceed the maximum provided in the schedule of administrative penalties in effect on the
date of the violation. In determining the amount of the administrative penalty, the hearing
officer may consider the duration of the violation, the frequency, recurrence and number
of violations, related or unrelated, by the same violator, the seriousness of the violation,
any good -faith compliance efforts, the economic impact of the violation on the
community and such other factors as justice may require.
1.14.090. Judicial review.
Any person subject to a decision of the hearing officer may obtain judicial review
of the decision in the superior court pursuant to the provisions of California Government
Code Section 53069.4.
1.14.100. Failure to pay administrative penalties and costs:
(a) Enforcement. Failure to pay the assessed administrative penalties and/or
administrative costs specifi
ed in the administrative order may be enforced as a personal
obligation of the violator, and/or if the violation is in connection with real property, alien
upon the real property, which shall remain in effect until all of the administrative
penalties, interest and administrative costs are paid in full.
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(b) Late payment charges. Late payment charges shall accrue and are payable as
specified in the schedule of administrative penalties.
(c) Notification of tax collector. The Director of Finance shall notify the county
tax collector of any administrative penalties and/or administrative costs imposed in
connection with real property that have not been satisfied in full within ninety (90) days
after the administrative order becomes final.
1.14.110. Liens.
(a) Procedure. Whenever the amount of any administrative penalty and/or
administrative cost imposed pursuant to this chapter in connection with real property has
not been satisfied in full within ninety (90) days after the administrative order becomes
final, this obligation may constitute a lien against any real property which was involved
in the violation. Interest shall accrue on the principal amount remaining, unsatisfied
pursuant to law.
(1) Prior to recording any such lien, the Director of Finance shall prepare
and file with the City Clerk a report stating the amounts due and owing. The City Clerk
shall fix a time, date and place for hearing such report and any protests or objections
thereto by the City Council. The Director of Finance shall cause written notice to be
served on each property owner whose interest is disclosed by the current county
equalized assessment roll not less than ten (10) days prior to the time set for the hearing.
(2) The lien shall be recorded with the county recorder. Once recorded, the
administrative order shall have the force and effect an
d priority of a judgment lien
governed by California Code of Civil Procedure Section 697.340 and may be extended as
provided in California Code of Civil Procedure Sections 683.110 through 683.220, as
these sections may be amended.
(b) Public hearing and protests of proposed liens. Any person owning a legal or
equitable interest in real property proposed to be subject to a lien pursuant to this section
may file a written protest with the City Clerk and/or may protest orally at the City
Council hearing. The grounds for protest or objection, and any evidence or testimony
submitted in support or in opposition to the imposition of a lien, shall be confined to
whether the amount of any administrative penalty and/or administrative cost imposed was
satisfied in full within the time allowed by law and/or was successfully challenged by a
timely appeal or writ of mandate. At the close of the hearing, the City Council shall adopt
a resolution confirming, discharging or modifying the amount of the lien based upon
evidence produced at the hearing.
(c) Recording of lien. Thirty (30) days following the adoption of a resolution by
the City Council imposing a lien, the Director of Finance shall file the same as a
judgment lien in the
office of the county recorder of San
Mateo County.
The
lien may
carry such additional
administrative charges as set forth by
resolution of the
City
Council.
(d) Satisfaction of lien. Once payment in full is received by the City for
outstanding penalties and costs, the Director of Finance shall either record a notice of
satisfaction or provide any property owner or financial institution having a legal or
equitable interest in the property with a notice of satisfaction so they may record this
notice with the office of the county recorder. Such notice of satisfaction shall cancel the
City's lien.
1.14.120. Administrative citation.
(a) Issuance. An enforcement officer may issue an administrative citation to any
person responsible for a City code violation. However, prior to the issuan
ce of an
adm nistrative citation for a violation which pertains to building, plumbing, electrical or
similar structural or zoning matters that do not create an immediate danger to health or
safety, the enforcement officer shall provide a reasonable period to correct or otherwise
remedy the violation of not less than ten (10) days.
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(b) Contents of administrative citation. Each administrative citation shall contain
the following information: the date of the violation; the address or description of the
location of the violation; the section or sections of this code violated and a description of
the acts or omissions constituting the violation; the amount of the penalty for the code
violation; a description of the penalty payment process, including a description of the
time within which and the place to which the penalty shall be paid; a notice of right to a
hearing, including the time within which the administrative citation may be contested,
and how to request a hearing; and the name of the citing enforcement officer.
(c) Request for administrative citation hearing. Any recipient of an administrative
citation may contest it before the hearing officer by requesting a hearing in writing and
submitting the request and an advance deposit of the administrative penalty or a request
for an advance deposit hardship waiver within thirty (30) calendar days from the date the
administrative citation is served.
(d) Hardship waiver. Any person who requests a hearing to contest an
administrative citation may request in writing an advance deposit hardship waiver,
including the reasons for the request. The Director of Finance may issue an advance
deposit hardship waiver if he or she is satisfied that the person is unable to deposit the
full amount of the penalty in advance of the hearing. The Director shall issue a written
determination of whether to issue the advance deposit hardship waiver. The written
determination shall be final, subject only to judicial review as provided by law. If the
Director determines not to issue an advance deposit hardship waiver, the person shall
remit the deposit to the City within ten (10) days of the date of that decision in order to
secure the hearing.
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1.14.1.M Administrative comp&ance order.
(a) Issuance. An enforcement official may issue a written compliance order,
providing a reasonable time for correction of not less than ten (I0). days, to any person
responsible for a Municipal Code violation.
(b) Contents of administrative compliance order. A compliance order issued
pursuant to this article shall contain the following information: the date and location of
the violation; the section of this code violated and a description of the violation; the
action required to correct the violation; the time period after which administrative
penalties will begin to accrue if compliance with the order has not been achieved; and the
amount of penalties that will begin to accrue.
(c) Compliance and failure to comply. If the enforcement official determines that
all violations have been corrected within the time specified in the compliance order or
within any amended orders, the enforcement official shall so advise each party to whom
the compliance order was addressed. If full compliance is not achieved within the time
specified in the compliance order or within any amended orders, the enforcement official
shall schedule a hearing before the hearing officer.
(d) Administrative order by hearing officer. If the hearing officer determines that
a violation occurred which was not corrected within the time period specified in the
compliance order, the hearing officer shall issue an administrative order which imposes
any or all of the following: an order to correct code violations, including a schedule for
correction, if appropriate; administrative penalties; and administrative costs as provided
in this article.
(e) Administrative penalties. The hearing officer may impose administrative
penalties for each day during which a violation occurs after complian
ce was ordered.
Administrative penalties assessed by the hearing officer shall be due by the date specified
in the administrative order.
to
DIVISION 2:
If any section, subsection, sentence, clause or phrase of this Ordinance is for any
reason held to be invalid, such decision shall not affect the validity of the remaining
portions of this Ordinance. The Council hereby declares that it would have adopted the
Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of
the fact that any one or more sections, subsections, sentences, clauses or phrases be
declared invalid.
DIVISION 3:
This Ordinance shall be published in a newspaper of general circulation in
accordance with California Government Code Section 36933, published, and circulated in
the City of Burlingame, and shall be in full force and effect thirty (30) days after its final
passage.
_U OA.
ANN KEIGil Mayor
I, MARY ELLEN KEARNEY, City Clerlc of the City of Burlingame, do hereby certify
that the foregoing ordinance was introduced at a regular meeting of the City Council held
21st,
on the
of
October
2013 and adopted thereafter at a regular meeting
of the City Council held on the 4thday of November
2013, by the following vote:
AYES: COUNCILMEMBERS: BAYLOCK, BROWNRIGG, DEAL, KEIGHRAN, NAGEL
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
MARY ELLEN KEARNEY, City
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