Chapter 1.10
ADMINISTRATIVE CITATIONS
Sections:
1.10.040 Administrative citation.
1.10.050 Contents of citation.
1.10.090 Administrative hearing request.
1.10.100 Advance fine deposit hardship waiver.
1.10.110 Administrative hearing procedure.
1.10.120 Decision of the hearing officer.
1.10.130 Right to judicial review.
1.10.140 Recovery of fines and administrative charges.
1.10.150 Allocation of recovered fines and administrative charges.
1.10.160 Failure to comply with final order to correct violation.
1.10.010 Title and purpose.
The city council finds that there is a need for an alternative method of enforcement for violations of the Benicia Municipal Code and other city standards, regulations and policies to protect the public health, safety and welfare of the community. The council finds and declares that an appropriate method of enforcement for these violations and to encourage compliance is an administrative citation program. The council further finds that continued violations are a drain on personnel and resources, require resources over and above the level of enforcement services usually provided, and constitute a public nuisance. These costs should be paid by the responsible person or persons. The purpose of this chapter is to provide for an administrative process that has objective criteria for the imposition of fines and provides for a fair process to appeal the issuance of administrative citations. (Ord. 18-18 § 1).
1.10.020 Applicability.
A. This chapter provides for administrative citations which are in addition to all other legal remedies, including criminal, civil or other legally established procedures, which may be pursued to address violations identified in this chapter.
B. This chapter applies to the following acts or omissions:
1. All violations of the Benicia Municipal Code;
2. All violations of city standards, regulations and policies;
3. All violations of the uniform, technical or other codes or ordinances adopted or incorporated by reference by the city;
4. All other state laws applicable to and enforced by the city of Benicia;
5. Failing to comply with any order or condition issued by a commission, board, hearing officer or city staff authorized to issue orders and conditions, including but not limited to the city’s building official, code enforcement official, fire marshal, fire chief, public works director, planning commission, historic preservation review commission, or city council; and
6. Failing to comply with any condition imposed by any entitlement, permit, contract or environmental document issued or approved by the city.
C. This chapter establishes the administrative procedures for the imposition, enforcement, collection and administrative review of fines and penalties imposed pursuant to Government Code Section 53069.4.
D. Use of this chapter shall be at the sole discretion of the city. (Ord. 18-18 § 1).
1.10.030 Definitions.
For the purposes of this chapter, the following definitions apply:
“Civil fine” is the monetary sanction established by resolution by the city council that is imposed by the issuance of a citation.
“Days” shall mean calendar days. In the event a specified time period ends on a weekend or city holiday, then the time period shall end on the next business day.
“Director” shall mean any department head in the city, including the following: city manager, assistant city manager, police chief, fire chief, community development director, public works director, finance director, parks and community services director, library director and any of their designated agents or representatives.
“Enforcement officer” shall mean any city employee or agent of the city with the authority to enforce any provision of this chapter.
“Hearing officer” shall mean any person appointed by the city manager to preside over the hearings described in this chapter. The hearing officer can have no pecuniary interest in the outcome of the hearing, or interest in or bias regarding the case. If the appointee is a city employee, the appointee cannot work in the department that is administering the citation, nor can any decision of the hearing officer be made subject to the employee’s performance evaluation in his/her regular job.
“Responsible person” shall mean the person or persons whom the director or designee determines is responsible for causing or maintaining any violation of this code or other provisions of this chapter, including but not limited to a property owner, tenant, person with legal interest in real property, or person in possession of real property and their employees and agents to whom a citation has been issued. The term “person” means any natural person, firm, association, business, trust, organization, corporation, partnership, company or any other legal entity. (Ord. 18-18 § 1).
1.10.040 Administrative citation.
A. Authority to Issue Citation. Whenever an enforcement officer charged with the enforcement of this code has determined that a code violation has occurred, the enforcement officer shall have the authority to issue an administrative citation, on a form approved by the city manager, to any responsible person, imposing civil fines for the violations.
B. Prior Written Warning Requirement. When the violation pertains to building, plumbing, electrical or other similar structural or zoning issues that create an immediate danger to health or safety, a citation may be issued without a warning notice. For all other violations, a citation shall not be issued pursuant to this chapter unless the responsible person has first been personally served or sent via first class mail a written warning notice providing the following information:
1. Date and approximate time the violation was observed by the enforcement officer;
2. Name and address of the responsible person and address or definite description of the location where the violation occurred;
3. Section or sections of the municipal code violated and a short description of the facts that create the violation;
4. Action required to correct the violation and a reasonable period by which such action must be completed to prevent the imposition of an administrative citation;
5. The consequences of failing to correct the violation, including the amount of fines that can be imposed for each violation; that each day a violation exists can be considered a separate violation; and that unpaid fines are subject to administrative late fees and interest charges.
Service of the written warning notice will be deemed complete if personally served on the responsible party or mailed to the responsible person’s address shown on the last Solano County equalized property tax assessment rolls or to any other address known for the responsible person. The notice shall become effective on the date of personal service or first class mailing. The failure of a responsible person to receive a warning notice shall not invalidate any proceeding taken pursuant to this chapter if service was given in the manner set forth in this section.
C. Citations for Acts Committed Outside Enforcement Officer’s Presence. An officer may issue a citation for a violation not committed in the officer’s presence if the officer has determined through investigation that the responsible person did commit or is otherwise responsible for the violation.
D. Continuing Nature of Violations. Each municipal code section violated is a separate offense with an independent fine. Each day a prohibited condition, use or activity under the code exists is a separate and distinct offense. A single citation may charge multiple violations covered by this chapter. (Ord. 18-18 § 1).
1.10.050 Contents of citation.
Each citation shall include all of the following information:
A. Date and, if applicable, approximate time the violation was observed by the enforcement officer;
B. Name and address of the responsible person in violation and address or definite description of the location where the violation occurred;
C. Section or sections of the municipal code violated and a short description of the facts that create the violation;
D. Action required to correct the violation and the date by which such action must be completed to prevent the imposition of the next administrative fine;
E. Amount of the fine for each violation and procedure to pay the fine;
F. Consequences of failing to correct the violation, including any late fees and interest charges that will accrue if not timely paid, and which shall constitute a civil debt;
G. A description of the administrative citation appeal process and the manner by which a hearing on a citation may be obtained (including the form to be used, where it may be procured from, and the period in which a request must be made in order to be timely);
H. Description of the procedure, including the time within which to make a request for a hardship waiver of the advance fine deposit when requesting an appeal hearing; and
I. The name and signature of the officer, and the signature of the responsible person, if he or she is physically present and will sign the citation at the time of its issuance. The refusal of a responsible person to sign a citation shall not affect its validity or any related subsequent proceeding, nor shall signing a citation constitute an admission that a person has committed a violation of the code. (Ord. 18-18 § 1).
1.10.060 Service of citation.
An administrative citation shall be served in one of the following methods:
A. An enforcement officer may personally serve the citation on the responsible person. The citation shall become effective on the date of personal service.
B. An enforcement officer may mail the citation by first class mail and certified mail, return receipt requested, to the responsible person. The citation shall be mailed to the responsible person’s address shown on the last Solano County equalized property tax assessment rolls or to any other address known for the responsible person. The citation shall become effective on the date of the first class mailing. The failure to serve any responsible person shall not invalidate any proceeding taken pursuant to this chapter.
C. An enforcement officer shall post the property where the violation occurs in a conspicuous place with the citation when the responsible person resides at an unknown address. A copy of the citation shall also be mailed by first class mail to the responsible person at the property where the violation occurs. The citation shall become effective on the date of the first class mailing.
D. Failure of a responsible person to receive a citation or notice shall not invalidate any fine, late charge, action or proceeding that is imposed or brought pursuant to this chapter, if service was given in a manner stated in this section. (Ord. 18-18 § 1).
1.10.070 Amount of fines.
A. The amounts of fines for violations imposed pursuant to this chapter shall be established by resolution by the city council, including escalating fine amounts for repeat violations within a 12-month period. The director of the department issuing the citation shall have the discretion to reduce the total fine amounts when there are multiple violations, keeping in mind the ultimate goal is abatement of the violations. In no case can the fines for each violation exceed the amounts established by city council resolution, which shall be in conformance with state law.
B. An administrative late fee charge established by city council resolution shall be owed for fines not paid within 30 days of their due date.
C. The city council may, by resolution, also establish and impose a daily interest charge on fines that are not fully paid to the city within 45 calendar days of their issuance when they are not contested, or within 45 calendar days of their nonpayment following the decision of a hearing officer or judicial officer to uphold or confirm the fine. Interest shall not be imposed on a late charge and shall not exceed the maximum rate allowed by law. The rate of interest and the commencement of its accrual may be modified by resolution of the city council. (Ord. 18-18 § 1).
1.10.080 Payment of fines.
A. The fine shall be paid to the city finance department within 15 calendar days from the effective date of the citation.
B. Any administrative citation and/or administrative charge paid shall be refunded if it is determined after a hearing that the person issued the administrative citation was not the responsible person or that there was no violation as identified in the administrative citation.
C. Payment of a fine shall not excuse the responsible person from correcting the violation. The issuance of a citation and/or payment of a fine does not bar the city from taking any other enforcement action regarding a violation that is not corrected, including issuing additional administrative citations, taking city abatement action, and/or filing civil and/or criminal complaints. (Ord. 18-18 § 1).
1.10.090 Administrative hearing request.
A. Any responsible person receiving an administrative citation may contest that there was a violation pursuant to this chapter or that he or she is the responsible person and may request an appeal hearing as follows:
1. A request for hearing form shall be obtained from the city clerk, and shall be completed and returned to the city clerk’s office along with the entire amount of the fine (or request for a hardship waiver pursuant to BMC 1.10.100) within 15 calendar days from the issuance of the citation. If the office of the city clerk does not receive the request with the total fine amount or a request for a hardship waiver within the required period, the responsible person shall have waived the right to a hearing and the citation shall be deemed final.
2. The request for hearing form shall contain a brief statement outlining the responsible person’s basis for contesting the citation and an address at which notice of any additional proceeding, correspondence or the decision of the hearing officer may be received.
3. Only after a completed request for hearing form has been filed with the city clerk, and the responsible person has submitted the advance fine deposit or has obtained a hardship waiver, shall the city set the date, time and place for the hearing. The hearing shall be set for a date not less than 15 days nor more than 60 days after the city clerk received the request and the advance fine deposit or an approved hardship waiver.
4. The responsible person requesting the hearing shall be notified by first class mail of the time and place set for the hearing at least 10 days prior to the date of the hearing. The notice shall be sent to the address provided on the request for hearing form filed by the responsible person. Service shall become effective on the date of first class mailing. Failure of the responsible person requesting the hearing to receive such notice shall not affect the validity of any proceedings taken.
5. The responsible person or the city may request one continuance, but in no event may the hearing be continued more than 30 days after the date of the originally scheduled hearing unless the hearing officer finds circumstances warrant a longer continuance not to exceed 90 days after the date of the originally scheduled hearing.
6. All reports or documentation supporting the issuance of the administrative citation shall be served on the responsible person at the address provided on the request for hearing form as soon as possible after the completed request is received, but at least five days before the hearing. Failure to receive such reports or documentation shall not invalidate the citation or any hearing, city action or proceeding conducted pursuant to this chapter.
7. The responsible person requesting the hearing shall provide any supporting documentation to the city clerk at least five days before the hearing. The hearing officer shall have the latitude to accept additional documentation at the hearing as needed to conduct a fair hearing.
B. A timely request for a hearing shall not excuse a responsible person from the duty to immediately abate a violation of the code, nor from any other responsibility or legal consequences for a continuation or repeated occurrence(s) of a violation of the code.
C. The failure of any responsible person to file a request for hearing in accordance with the provisions of this section shall be deemed to be a waiver of his or her right to an administrative hearing and the citation will be deemed final. (Ord. 18-18 § 1).
1.10.100 Advance fine deposit hardship waiver.
Any responsible person who requests a hearing to contest an administrative citation and is financially unable to deposit the fine as required in BMC 1.10.090 may file a request for hardship waiver as follows:
A. The request for waiver shall be made on a form obtained from the city clerk and shall be submitted to the city clerk along with all supporting documentation within 15 days of the effective date of the citation.
B. The requirement of depositing the full amount of the fine as required by BMC 1.10.090 shall be stayed unless or until the city makes a determination not to issue the hardship waiver.
C. To be considered for a hardship waiver, the application must be complete and signed and must be accompanied by documents that enable the city manager or designee to reasonably determine the responsible person’s financial inability to pay the full amount of the fines in advance of the hearing. The owner may be granted a reasonable extension to supply supporting documentation by the city manager or designee. Documents suitable for consideration may include, without limitation, accurate, complete and legible copies of state and federal income tax returns, and all schedules for the preceding tax year, financial statements, loan applications, bank account records, income and expense records for the 12 months preceding submittal of the waiver form, as well as other documentation demonstrating the responsible person’s financial hardship. The city may, at a time chosen in its sole discretion and after a citation is final or confirmed, destroy or discard the documents submitted for a hardship waiver without prior notice to the responsible person.
D. The city manager or designee shall issue a written decision specifying the reasons for issuing or not issuing the hardship waiver. The written determination of the city manager or designee shall be final and shall be served by first class mail upon the responsible person who applied for the waiver. The decision regarding the request for a waiver shall become effective on the date of the mailing.
E. Approval of the hardship waiver will result in the city setting a hearing pursuant to this chapter.
F. If the city manager or designee decides not to issue a waiver, the responsible person shall remit the advance fine deposit within 10 days of the decision. If the advance fine deposit is not received by the city clerk by this date, the request for hearing shall not be accepted and the responsible person shall be deemed to have waived his or her right to an administrative hearing and the citation shall be deemed final. (Ord. 18-18 § 1).
1.10.110 Administrative hearing procedure.
A. No hearing to contest an administrative citation before a hearing officer shall be held unless the fine has been deposited in advance in accordance with BMC 1.10.090 or an advance fine deposit hardship waiver has been issued in accordance with BMC 1.10.100.
B. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. The city bears the burden of proof to establish a violation and who is responsible by a preponderance of the evidence.
C. The city and the responsible person contesting the administrative citation shall be given the opportunity to testify and present evidence concerning the administrative citation. The responsible person may represent themselves or be represented by any person of their choice.
D. The hearing officer may continue the hearing and request additional information from the enforcement officer and/or the responsible person or to conduct an inspection of the building and/or property involved in the hearing prior to concluding the hearing and issuing a written decision.
E. If desired, an inspection of the building and/or property by the hearing officer during the hearing may occur if the responsible person consents to the inspection, is given notice of the date and time of the inspection, and both parties are permitted to be present during the inspection. If the building, structure and/or property can be inspected from areas in which the general public has access, or with permission of other persons authorized to provide access to the building and/or property, then notice to and consent of the responsible person are not required. The hearing officer shall state for the record during the hearing the material facts observed and conclusions drawn from the inspection and the responsible person and enforcement officer shall be afforded an opportunity to rebut or explain the matters so stated by the hearing officer.
F. The failure of the responsible person to appear at the administrative citation hearing shall constitute a forfeiture of the fine and shall be deemed a waiver of his or her right to an administrative hearing. (Ord. 18-18 § 1).
1.10.120 Decision of the hearing officer.
A. The hearing officer shall issue a written decision within 15 days of the conclusion of the hearing either upholding, reducing, conditionally reducing or canceling the fines stated in the citation or any administrative charges imposed. The decision shall state the reasons for that decision and the right to judicial review of the decision pursuant to BMC 1.10.130. The hearing officer’s decision is final.
B. If the hearing officer determines that the administrative citation should be upheld, then the advance fine deposit shall be retained by the city. If a hardship waiver was issued, the written decision shall require the fine to be paid within 30 days of the date of service of the decision. If the fine is not paid within the time specified, the fine shall be subject to the imposition of an administrative late fee charge and interest as set forth in BMC 1.10.070.
C. If the hearing officer determines the administrative citation should be canceled and the advance fine was deposited with the city, then the city shall refund the amount of the deposited fine. If the fine is reduced by the hearing officer, the city shall make a partial refund of the advance fine deposit.
D. The decision should indicate that the hearing officer’s decision is the final decision for the city and that the responsible party has 20 days from the effective date of the decision to file a petition for judicial appeal as set forth in BMC 1.10.130.
E. The responsible person shall be served with a copy of the hearing officer’s written decision by first class and by certified mail, return receipt requested, to the address provided on the request for hearing form by the responsible person requesting the hearing. The date the decision is deposited with the U.S. Postal Service shall constitute the date of its service. The failure of a responsible person to receive a properly addressed decision shall not invalidate any hearing, city action or proceeding conducted pursuant to this chapter. (Ord. 18-18 § 1).
1.10.130 Right to judicial review.
Pursuant to Government Code Section 53069.4(b), decisions of the hearing officer are appealable to the superior court within 20 days after the date of their service. Each decision shall contain a statement advising the responsible person of this appeal right and the court filing fee as set forth in Government Code Section 70615. The responsible person shall serve a copy of the court filed notice of appeal on the Office of the City Clerk, Benicia City Hall, 250 E L St, Benicia, CA 94510 by personal service or first class mail within five calendar days of filing the notice of appeal. If the hearing officer’s decision is not appealed in a timely manner, it shall be deemed confirmed. If a responsible person prevails on appeal, the city shall reimburse his or her court filing fee, as well as the fine deposit in accordance with the court judgment. The reimbursement shall be mailed to the responsible person within 30 days of the city’s receipt of a notice of judgment or ruling from the superior court clerk. (Ord. 18-18 § 1).
1.10.140 Recovery of fines and administrative charges.
The unpaid civil fines, administrative charges and accrued interest shall constitute a civil debt owing to the city jointly and severally by the owner and/or responsible parties. At its discretion, the city may pursue any and all legal and equitable remedies for the recovery of all fines, administrative charges and interest owed to the city. Any property owner or responsible party who fails to pay the fines, administrative charges, or interest owed to the city may be liable in any action brought by the city for costs incurred in securing payment of the delinquent amounts to the extent allowed by law. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total of all fines, administrative charges and interest has been recovered. (Ord. 18-18 § 1).
1.10.150 Allocation of recovered fines and administrative charges.
Fines and administrative charges collected pursuant to this chapter shall be deposited in the city’s general fund to support city enforcement efforts. (Ord. 18-18 § 1).
1.10.160 Failure to comply with final order to correct violation.
Failure of a responsible person to comply with a corrective action stated in any uncontested citation, or with regard to a correction order in any hearing officer decision that is deemed confirmed and not appealed to the superior court, shall constitute a new and separate violation and misdemeanor offense. (Ord. 18-18 § 1).