Chapter 18.04 MUNICIPAL CODE AND ORDINANCE ENFORCEMENT

City enforcement issues have become increasingly varied and complex. Alternative enforcement processes have been adopted by other public agencies as a means to address budget difficulties and resource shortages, and to streamline operations. Alternative enforcement processes minimize time delays that can result from increasingly crowded criminal and civil court dockets.

This chapter sets forth a variety of enforcement options to effectively and timely address code and ordinance enforcement matters in order to preserve and protect the quality of life in the neighborhoods and business communities of the City of Carmel-bythe-Sea. This chapter allows traditional criminal prosecution, civil action, and nuisance abatement as enforcement. This chapter further establishes several administrative enforcement procedures. (Ord. 2018-02, 2018).

18.04.020 Administrative Citation Process Overview.

Administrative citations generally address municipal code and ordinance violations that the City, in its sole discretion, deems to be minor or transient in nature. The City adopts the administration citation enforcement process set forth in CMC 18.04.040 through 18.04.140, inclusive, which provides for de novo review of administrative citations in court if a person wishes to challenge an administrative decision upholding an administrative citation. For example, and not by exclusion, administrative citations may be used to enforce provisions regulating signs, yard waste, false alarms, noise issues, vehicle parking, minor, or nonrecurring violations of CMC Title 15, Buildings and Construction, CMC Title 17, Zoning, or similar matters.

For purposes of enforcement an officer issues an administrative citation that lists the violation and the administrative fine amount, and describes the procedures to be followed in order to pay the fine or, in the alternative, to request a hearing to contest the citation. The administrative citation may be contested through an administrative hearing process.

The fine must be deposited in advance of the administrative hearing. However, a procedure to waive the deposit is allowed for hardship. In the event the amount of the fine is not set forth in this code, the amount of the administrative citation fine shall be set by resolution. Penalties and interest shall be added for late payment of administrative fines.

The administrative citation process is set forth beginning with this section. (Ord. 2018-02, 2018).

18.04.030 Administrative Compliance Order Process Overview.

Administrative compliance orders generally address municipal code and ordinance violations that the City, in its sole discretion, deems not suitable for the administrative citation process contemplated by CMC 18.04.020. For example, and not by exclusion, administrative compliance orders may be used for serious, continuing, or recurring violations of CMC Title 15, Buildings and Construction, CMC Title 17, Zoning, or similar matters.

An administrative compliance order is issued to a responsible party by a City enforcement officer. The compliance order sets forth a description of the observed violation(s), a description of what the responsible party is required to do to bring the property into compliance, and the date by which compliance must be achieved. The compliance order provides notice as to administrative penalties that shall accrue if compliance with the order is not achieved by the date listed on the order. The administrative compliance order may be contested through an administrative hearing process. The decision may contain an order to correct any violations determined to exist, together with an order to pay administrative penalties and costs. The administrative compliance order process is set forth beginning at CMC 18.04.150. (Ord. 2018-02, 2018).

18.04.040 Administrative Citations.

A. The administrative citation process provided for in this chapter shall be in addition to any other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code or an ordinance of the City of Carmel-by-the-Sea.

B. The administrative citation process set forth in this chapter shall not apply to continuing violations of this code, or to an ordinance of the City that pertains to building, plumbing, electrical, or other similar structural or zoning issues. (Ord. 2018-02, 2018).

18.04.050 Definitions.

For purposes of this chapter, the term “enforcement officer” shall mean and refer to any employee or agent of the City holding authority to enforce violations of this code or an ordinance. This shall include the City Attorney, the City Administrator, and any person designated as an enforcement officer by the City Administrator.

For purposes of this chapter “substantial evidence” shall mean that amount of evidence that causes the trier of fact to conclude that it is more likely than not that the violation has occurred (i.e., “preponderance of the evidence”). (Ord. 2018-02, 2018).

18.04.060 Service of Citations, Orders, and Notices.

All citations, orders, and notices shall be served in accordance with the provisions of this chapter. (Ord. 2018-02, 2018).

18.04.070 Citation Issuance.

A. Whenever an enforcement officer determines that a violation of a provision has occurred, the enforcement officer shall be authorized to issue an administrative citation to any person responsible for the violation including those who hold themselves out as being in charge of the violating entity.

B. Each administrative citation shall contain the following information:

1. The date of the violation;

2. The address or a definite description of the location where the violation occurred;

3. Reference to the provision of this code or ordinance that was violated and a description of the circumstances pertaining to the violation;

4. The amount of the fine related to the violation determined in accord with this chapter;

5. A description of the fine payment process, including a statement of the time within which and the place to which the fine shall be paid;

6. An order prohibiting continuation or repeated occurrence of the violation described in the administrative citation;

7. A description of the administrative citation review process, including the time within which the citation may be contested and the place from which a request for hearing form to contest the citation may be obtained; and

8. The name and signature of the citing enforcement officer. (Ord. 2018-02, 2018).

18.04.080 Citation Fines.

A. The fines for each municipal code or ordinance violation imposed pursuant to this chapter shall be set forth in the schedule of fines established by resolution of the City Council. In the absence of a designated fine, the default fine for each violation shall be $100.00 per day.

B. The schedule of fines shall specify an additional fine due for late payment of any fine if not paid in full on or before the date the payment of the fine is due.

C. The fine stated upon any duly issued administrative citation shall be paid to the City of Carmel-by-the-Sea within 21 days from the date of service of the administrative citation, and before any administrative hearing is set to be heard.

D. Any administrative citation fine paid pursuant to this section shall be refunded in accordance with CMC 18.04.130(C) if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation.

E. Payment of a fine under this chapter shall not excuse or discharge any continuation or repeated occurrence of the violation that is the subject of the administrative citation. Such continuation or repeated occurrence of the violation may result in the subsequent filing of criminal misdemeanor charges.

F. Any person who fails to pay the City any fine imposed pursuant to the provisions of this chapter on or before the date that fine is due also shall be liable for the payment of any applicable late payment charges set forth in the schedule of fines. The City may collect any past due administrative citation fine or late payment charge by use of all available legal means including, but not limited to, the assertion and filing of a lien against real property.

G. Any failure to pay the City any fine imposed pursuant to the provisions of this chapter on or before the date that fine is due shall be deemed a violation of this section, enforceable pursuant to the provisions of CMC 18.04.220. The City Attorney shall be directed to collect fines that are due and payable under this section. (Ord. 2018-02, 2018).

Article II. Administrative Hearing

18.04.090 Hearing Request.

A. Any recipient of an administrative citation may contest that there was a violation of this code or an ordinance of the City, or that he or she is the responsible party, by completing a request for hearing form and returning it to the City within 21 days from the date set forth on the administrative citation, together with an advance deposit of the fine or notice that a request for an “advance deposit hardship waiver” has been filed pursuant to CMC 18.04.100. A request for hearing form may be obtained from the office of the City Clerk.

B. The person requesting the hearing shall be notified of the time and place set for the hearing at least 10 days prior to the date of the hearing.

C. In the event the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, then a copy of this report shall also be served on the person requesting the hearing at least five days prior to the date of the hearing. (Ord. 2018-02, 2018).

18.04.100 Advance Deposit Hardship Waiver.

A. Any person who intends to request a hearing to contest whether a municipal code or ordinance violation occurred, or that he or she is the responsible party, and who is financially unable to make the advance deposit of the fine as required in CMC 18.04.080 may file a request for an “advance deposit hardship waiver.”

B. The request shall be filed with the City Administrator on an “advance deposit hardship waiver” application form, available from the office of the City Clerk, within 10 days of the date of the administrative citation.

C. The requirement to deposit the full amount of the fine as described in CMC 18.04.080 shall be stayed unless or until the City Administrator makes a determination not to issue the “advance deposit hardship waiver.”

D. The City Administrator may waive the requirement of an advance deposit set forth in CMC 18.04.090 and issue the “advance deposit hardship waiver” only if the cited party submits to the City Administrator a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the City Administrator the person’s actual financial inability to deposit with the City the full amount of the fine in advance of the hearing.

E. If the City Administrator determines not to issue an “advance deposit hardship waiver,” the cited individual or entity shall be notified of the denial and thereafter be required to remit the deposit to the City within 10 days of the date of that decision or 21 days from the date of the administrative citation, whichever is later.

F. The City Administrator shall issue a written determination listing the reasons for his or her determination to issue or not issue the “advance deposit hardship waiver.” The written determination of the City Administrator shall be final.

G. The written determination of the City Administrator shall be served upon the person who filed the request for an “advance deposit hardship waiver.” This determination shall be subject to judicial review pursuant to the Code of Civil Procedure, Section 1094.5, and the time limit of requesting judicial review is hereby set at 21 calendar days. (Ord. 2018-02, 2018).

18.04.110 Hearing Officer Selection.

The presiding officer of the Hearing Officer Panel shall, by random lot, designate one of the three members of the Hearing Officer Panel to be the hearing officer for each administrative citation hearing. Should the designated hearing officer be disqualified for cause or should that hearing officer otherwise be unable to conduct the hearing, the presiding officer shall, by random lot, designate a successor hearing officer from available members of the Hearing Officer Panel. (Ord. 2018-02, 2018).

18.04.120 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 CMC 18.04.080, or an “advance deposit hardship waiver” has been issued in accordance with CMC 18.04.100.

B. A hearing before the hearing officer shall be set for a date that is not less than 15 days and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The hearing officer shall have sole discretion to grant any request for continuance of the hearing.

C. At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation. The City shall submit its report on the alleged violation, setting forth a detailed recommendation as to relevant findings and conclusions that flow from the facts presented and a recommended decision based upon those findings and conclusions. This report shall meet the standards for administrative findings set forth in Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974).

D. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies.

E. The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents.

F. The hearing officer may question witnesses and/or request additional information from the enforcement officer or the recipient of the administrative citation prior to closing the hearing. (Ord. 2018-02, 2018).

18.04.130 Hearing Officer’s Decision.

A. After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision to uphold or cancel the administrative citation and shall list the reasons for that decision. The decision of the hearing officer shall be final.

B. If the hearing officer determines that the administrative citation should be upheld, then the fine amount on deposit with the City shall be retained by the City. If 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.

C. If the hearing officer determines that the administrative citation should be canceled, and the fine was deposited with the City, then the City shall promptly refund the amount of the deposited fine. This procedure shall not require the authorization of the City Council as set out in the Carmel Municipal Code refund policy CMC 3.06.060 (Return of funds). In the event the fine has not been deposited, the hearing officer shall cancel the obligation to tender the fine.

D. The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision. A copy of the decision shall be forwarded to all members of the Hearing Officer Panel. (Ord. 2018-02, 2018).

18.04.140 Judicial Review.

Any person aggrieved by an administrative decision of a hearing officer on an administrative citation may obtain review of the administrative decision by filing a petition for review with the Superior Court in Monterey County in accordance with the timelines and provisions set forth in the California Government Code. (Ord. 2018-02, 2018).

Article III. Administrative Compliance Appeals Process

18.04.150 Administrative Compliance Order Process.

A. The administrative compliance order process provided for in this chapter shall be in addition to any other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code or an ordinance of the City.

B. Use of the administrative compliance order process shall be at the sole discretion of the City. (Ord. 2018-02, 2018).

18.04.160 Compliance Orders.

A. Whenever an enforcement officer, as defined by CMC 18.04.050, determines that a violation of any provision of this code or City ordinance has occurred, is occurring, or exists, the enforcement officer may issue a written compliance order to any person responsible for the violation or one holding themselves out as being in charge of an entity or individual engaging in the violation.

B. A compliance order issued pursuant to this chapter shall contain the following information:

1. The date of the violation;

2. The address or description of the location where the violation occurred;

3. Reference to the provision of this code or ordinance that was violated and a description of the circumstances pertaining to the violation;

4. The actions required to correct the violation;

5. The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;

6. The penalty related to the violation, if compliance is not achieved;

7. The name and signature of the citing enforcement officer; and

8. Either a copy of this chapter or an explanation of the consequences of noncompliance with this chapter and a description of the hearing procedure and appeal process. (Ord. 2018-02, 2018).

18.04.170 Hearing Officer Selection, Notice of Hearing.

A. In the event that the enforcement officer determines that each violation has been corrected within the time specified in the compliance order, no further action shall be taken.

B. In the event that full compliance as to each violation is not achieved within the time specified in the compliance order, the enforcement officer shall advise the presiding officer of the Hearing Officer Panel. The presiding officer of the Hearing Officer Panel shall, by random lot, designate one member of that Hearing Officer Panel to be the hearing officer for the compliance order hearing. Should that hearing officer be unable to conduct the hearing, or should that hearing officer be disqualified for cause, the presiding officer shall, by random lot, designate a successor from that Hearing Officer Panel.

C. The hearing officer shall ensure that the notice provisions of this section have been followed. Notice of the hearing shall be given at least 10 days prior to the date of the hearing. The hearing officer shall have sole discretion to grant any request for continuance of the hearing. (Ord. 2018-02, 2018).

18.04.180 Compliance Hearing.

A. At the place and time set forth in the notice of compliance hearing, the hearing officer shall conduct a hearing on the compliance order issued pursuant to CMC 18.04.160, in accord with rules and procedures as may be promulgated by the Hearing Officer Panel.

B. The hearing officer shall consider written or oral evidence in accord with rules and procedures set by the Hearing Officer Panel pursuant to this section. Evidence regarding the alleged violation or compliance actions may be presented by any party, including the alleged violator, the owner or occupant of any real property affected by the alleged violation, and the City. The failure of any party to appear at the hearing shall constitute a failure to exhaust his or her administrative remedies.

C. The compliance order and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. The report on the alleged violation shall set forth a detailed recommendation as to relevant findings and conclusions that flow from the facts presented and a recommended decision based upon those findings and conclusions. This report shall meet the standards for administrative findings set forth in Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d.506 (1974).

D. The hearing officer may question witnesses and/or request additional information from the enforcement officer or any party prior to closing the hearing.

E. Within a reasonable time following the conclusion of the hearing, the hearing officer shall make findings and issue a determination, as to each alleged violation, regarding:

1. The existence of the violation;

2. The identity of each responsible party;

3. The failure of the responsible party to take required corrective action within the required time period.

Findings shall be supported by substantial evidence received at the hearing.

F. In the event that the hearing officer finds by a preponderance of the evidence that a violation has occurred, and that the violation was not corrected within the time period specified in the compliance order, the hearing officer shall issue an administrative order in accord with CMC 18.04.190.

G. In the event that the hearing officer finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the hearing officer shall issue a finding as to those facts. (Ord. 2018-02, 2018).

18.04.190 Administrative Order.

In the event that the hearing officer determines that a violation occurred, which was not corrected within the time period specified in the compliance order, he or she shall issue an administrative order that imposes any or all of the following:

A. An order to correct each violation, including a schedule for correction where appropriate;

B. Administrative penalties as provided in CMC 18.04.200; and

C. Administrative costs as provided in CMC 18.04.210. (Ord. 2018-02, 2018).

18.04.200 Administrative Penalties.

A. The hearing officer shall be authorized to impose administrative penalties for the violation of any provision of this code or ordinance in an amount not to exceed a maximum of $2,500 per day for each continuing violation, except that the total administrative penalty shall not exceed $100,000, exclusive of administrative costs, interest and restitution for compliance reinspections for any related series of violations.

B. In determining the amount of the administrative penalty, the hearing officer may take any or all of the following factors into consideration:

1. The duration of the violation;

2. The frequency, recurrence and number of violations, related or unrelated, by the same violator;

3. The seriousness of the violation;

4. The effect the violation may have upon adjoining properties;

5. The good faith efforts of the violator to come into compliance;

6. The economic impact of the penalty on the violator; and/or

7. The impact of the violation on the community. (Ord. 2018-02, 2018).

18.04.210 Administrative Costs.

A. The hearing officer shall access reasonable and necessary administrative costs against the violator when it finds that a violation has occurred, or that compliance has not been achieved within the time specified in the compliance order.

B. The hearing officer may assess reasonable and necessary administrative costs against the City when he or she finds that a violation has not occurred.

C. The administrative costs may include reasonable and necessary costs incurred in connection with the matter before the hearing officer including, but not limited to, costs of investigation, costs incurred to prepare for the hearing and for the hearing itself, and costs for all reinspections necessary to enforce the compliance order.

D. The hearing officer may waive the assessment of administrative costs against either party, where unique circumstances are present, or in the interests of justice. (Ord. 2018-02, 2018).

18.04.220 Failure to Comply with Administrative Order or Payment of Citation.

A. Any person who fails to comply with an administrative order issued in accord with this chapter, or to pay to the City any amount due pursuant to the provisions of this chapter, on or before the date that fine is due also shall be liable for the payment of any applicable late payment charges set forth in the schedule of fines. The City may collect any past due administrative citation fine or late payment charge by use of all available legal means, including recordation of a lien pursuant to CMC 18.04.260 through 18.04.290.

B. Any failure to comply with an administrative order issued in accord with this chapter, or to pay to the City any amount imposed pursuant to the provisions of this chapter on or before the date that fine is due, shall be deemed a violation of this section enforceable pursuant to the provisions of CMC 18.04.280.

C. Any failure to pay the amount imposed pursuant to the provisions of this chapter shall also be enforced as:

1. A personal obligation of the violator; and

2. If the violation is in connection with real property, a lien upon the real property. The lien shall remain in effect until all of the administrative penalties, interest, and administrative costs are paid in full. (Ord. 2018-02, 2018).

18.04.230 Judicial Review.

Any person aggrieved by an administrative order may obtain review of the administrative order in the Superior Court by filing with the court a petition for review pursuant to CMC 18.04.140. (Ord. 2018-02, 2018).

18.04.240 Report of Compliance after Administrative Order.

If the City Administrator determines that compliance has been achieved after a compliance order has been sustained by the hearing officer, the City Administrator shall file a report with the Hearing Officer Panel indicating that compliance has been achieved. (Ord. 2018-02, 2018).

18.04.250 Compliance Dispute.

A. In the event that the City Administrator does not file a report pursuant to CMC 18.04.240, any person who believes that compliance has been achieved may request a compliance hearing before the hearing officer by filing a request for a hearing with the presiding officer of the Hearing Panel, together with full payment of the compliance dispute hearing fee set by the Council.

B. A hearing on the compliance dispute shall be noticed in accordance with CMC 18.04.170.

C. The hearing officer shall determine if compliance has been achieved and, if so, when it was achieved. (Ord. 2018-02, 2018).

Article IV. Lien Procedures

18.04.260 Lien Procedure.

Whenever the amount of any administrative fine, penalty, or administrative cost imposed by a hearing officer pursuant to this chapter in connection with real property has not been satisfied in full within 90 days and/or has not been successfully challenged by a timely writ of mandate, this obligation shall constitute a lien against the real property on which the violation occurred. (Ord. 2018-02, 2018).

18.04.270 Lien Hearing and Protest.

A. Any person whose real property is subject to a lien pursuant to CMC 18.04.220 may file a written protest with the City Clerk or may object to assessment of the lien orally at the City Council meeting.

B. Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds for each protest or objection.

C. The City Council, after the hearing, shall adopt a resolution confirming, discharging, or modifying the amount of the lien. (Ord. 2018-02, 2018).

18.04.280 Recording Lien.

Thirty days following the adoption of a resolution by the City Council imposing a lien, the City Clerk shall file the same as a judgment lien in the office of the County Recorder of Monterey County, California. The lien may carry such additional administrative charges as set forth by resolution of the City Council. (Ord. 2018-02, 2018).

18.04.290 Satisfaction of Lien.

Once payment in full is received by the City for outstanding penalties and costs, the City Manager shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction, so they may record this notice with the office of the County Recorder. Such notices of satisfaction shall cancel the City’s lien. (Ord. 2018-02, 2018).