Chapter 1.09
ADMINISTRATIVE CITATIONS
Sections:
1.09.010 Purpose and applicability.
1.09.020 Code compliance administrator – Defined – Authority.
1.09.030 Administrative citation – Illegal cannabis cultivation.
1.09.070 Advance deposit hardship waiver.
1.09.100 Hearing officer’s decision.
1.09.110 Late payment charges.
1.09.120 Recovery of administrative citation fines and costs.
1.09.130 Right to judicial review.
1.09.010 Purpose and applicability.
A. To address the variety of circumstances that may arise in conjunction with addressing violations of the Fortuna Municipal Code, including, but not limited to, nuisance regulations, the city council finds that there is a need to establish several enforcement mechanisms, including non-criminal, administrative fines.
B. This chapter provides for administrative citations as provided in Government Code Section 53069.4.
C. The remedies provided by this chapter are in addition to all other legal remedies, administrative, criminal and/or civil, which may be pursued by the city to address any violation of this code.
D. Use of this chapter shall be at the sole discretion of the city. (Ord. 2020-745 § 1 (Exh. A)).
1.09.020 Code compliance administrator – Defined – Authority.
A. For purposes of this chapter, a code compliance administrator shall mean any city employee or agent of the city with the authority to enforce any provision of this code, including, but not limited to, the city manager, code compliance officer, and officers of the Fortuna police department.
B. The code compliance administrator has authority to issue administrative citations pursuant to this chapter. (Ord. 2020-745 § 1 (Exh. A)).
1.09.030 Administrative citation – Illegal cannabis cultivation.
A. Whenever an enforcement officer charged with the enforcement of any provision of this code determines that a violation of that provision has occurred, the enforcement officer may issue an administrative citation to any person responsible for the violation.
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. The section of this code violated and a description of the violation;
4. The amount of the fine for the code violation;
5. A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;
6. An order prohibiting the continuation or repeated occurrence of the code violation described in the administrative citation;
7. An order to correct the code violation described in the administrative citation if said violation is correctable as described in Chapter 8.16 FMC;
8. A description of the administrative citation review process, including the time period within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained and an advance deposit waiver; and
9. The name and signature of the citing enforcement officer.
C. In addition to the administrative citation and penalty authorized by this chapter, an order to correct a violation under subsection (B)(7) of this section may be enforced as set forth in the chapter applicable to that violation.
D. In the case of a continuing violation pertaining to building, plumbing, electrical or other similar structural or zoning issue that in the opinion of the code compliance administrator or designee, does not create an immediate danger to health, safety or public welfare, a reasonable time, not to exceed 120 days, shall be provided to remedy or correct the violation prior to imposition of fines or penalties. In determining what constitutes a reasonable time, the code compliance administrator may consider the estimate of local professionals including licensed contractors, but shall have sole discretion to make the final determination as to what the reasonable time shall be. In the case of such violations, the time within which the violation must be corrected in order to avoid a fine shall also be specified on the administrative citation.
E. Notwithstanding subsection (D) of this section, and except as provided in subsection (F) of this section, the code compliance administrator shall not be required to provide a reasonable time to remedy or correct the violation prior to imposition of fines or penalties, and may impose such fine or penalty immediately, if the violation of any building, plumbing, electrical, or other similar structural, health and safety, or zoning requirements exists as a result of, or to facilitate, any commercial cannabis activity prohibited by FMC 17.06.120.5(B).
F. For any violation for which the immediate imposition of fines or penalties is allowable under subsection (E) of this section, the code compliance administrator shall provide for a reasonable period of time for the correction or remedy of the violation prior to the imposition of administrative fines or penalties as required in subsection (D) of this section if all of the following are true:
1. A tenant is in possession of the property that is the subject of the administrative action.
2. The rental property owner or agent can establish that the rental or lease agreement prohibits the cultivation of cannabis.
3. The rental property owner or agent establishes that he or she did not know the tenant was illegally cultivating cannabis and no complaint, property inspection, or other information caused the rental property owner or agent to have actual notice of the illegal cannabis cultivation.
4. The rental property owner or agent provides written notice to the code compliance administrator of his or her intent to invoke this subsection and submits the necessary document and other evidence within five days of the date of the citation. (Ord. 2020-745 § 1 (Exh. A)).
1.09.040 Amount of fines.
A. Fines, Generally. The amounts of the fines for violations of the Fortuna Municipal Code are imposed pursuant to Government Code Section 53069.4 and this chapter and shall be as follows:
1. A fine not exceeding $100.00 for a first violation;
2. A fine not exceeding $200.00 for a second violation of the same ordinance within one year;
3. A fine not exceeding $500.00 for each additional violation of the same ordinance within one year.
4. Notwithstanding the above, a violation of the local building and safety codes determined to be an infraction is punishable by: (a) a fine not exceeding $130.00 for a first violation; (b) a fine not exceeding $700.00 for a second violation of the same ordinance within one year of the first violation; (c) a fine not exceeding $1,300 for each additional violation of the same ordinance within one year of the first violation; (d) a fine not exceeding $2,500 for each additional violation of the same ordinance within two years of the first violation if the property is a commercial property that has an existing building at the time of the violation and the violation is due to failure by the owner to remove visible refuse or failure to prohibit unauthorized use of the property.
B. Fines, Specifically. Notwithstanding the above, for violations of the Fortuna Municipal Code not specifically designated as an infraction, the city council may impose a fine in excess of the limits described in subsection (A) of this section for specific violations of the Fortuna Municipal Code.
C. A 10 percent late payment fee shall be imposed on any fine which is not paid within 30 days of the issuance of the citation.
D. The administrative fines outlined in this chapter are levied in addition to any recovery of costs outlined in Chapter 23 FMC. (Ord. 2020-745 § 1 (Exh. A)).
1.09.050 Payment of fine.
A. The fine shall be paid to the city within 30 days from the date of the administrative citation.
B. Payment of a fine under this chapter shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative citation. (Ord. 2020-745 § 1 (Exh. A)).
1.09.060 Hearing request.
A. Any recipient of an administrative citation may contest the existence of a violation of the code, that he or she is the responsible party, or any order issued under FMC 1.09.030(B) by completing a request for hearing form and returning it to the city within 14 days from the date of the administrative citation, together with an advance deposit of the fine or a hardship waiver form pursuant to FMC 1.09.070.
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. If the enforcement officer submits an additional written report concerning the administrative citation to the hearing officer for consideration at the hearing, a copy of this report also shall be served on the person requesting the hearing at least five days prior to the date of the hearing. (Ord. 2020-745 § 1 (Exh. A)).
1.09.070 Advance deposit hardship waiver.
A. Any person who intends to request a hearing under FMC 1.09.060 and who is financially unable to make the advance deposit of the fine as required in FMC 1.09.060(A) may file a request for a waiver.
B. The request shall be filed with the city on a hardship waiver form within 10 days of the date of the administrative citation.
C. The requirement of depositing the full amount of the fine as described in FMC 1.09.060(A) shall be stayed until the city makes a determination not to grant the advance deposit hardship waiver.
D. The city may grant the hardship waiver only if the cited party submits a sworn declaration, together with any supporting documents or materials, which demonstrates his or her financial inability to deposit with the city the full amount of the fine in advance of the hearing.
E. If the city determines not to issue a deposit hardship waiver, the cited party shall remit the advance deposit of the fine to the city within 10 days of the date of that decision or 14 days from the date of the administrative citation, whichever is later.
F. The city shall issue a written determination of its reasons for granting or denying an advance deposit hardship waiver. This written determination shall be final.
G. The written determination shall be served upon the applicant for the advance deposit hardship waiver by first class mail. (Ord. 2020-745 § 1 (Exh. A)).
1.09.080 Hearing officer.
The city manager shall designate the hearing officer for administrative citation hearings. The city manager may also designate himself as the hearing officer. (Ord. 2020-745 § 1 (Exh. A)).
1.09.090 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 FMC 1.09.060 or a deposit hardship waiver has been granted in accordance with FMC 1.09.070.
B. A hearing before the hearing officer shall be set for a date that is not less than 15 days and not more than 30 days from the date that the request for hearing is filed in accordance with the provisions of this chapter.
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.
D. The failure of any recipient of an administrative citation to appear at the administrative citation hearing shall constitute a forfeiture of the fine, a failure to exhaust his or her administrative remedies and consent to any order issued pursuant to FMC 1.09.030(B)(6) and (7).
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 continue the hearing and request additional information from the enforcement officer or the recipient of the administrative citation prior to issuing a written decision. (Ord. 2020-745 § 1 (Exh. A)).
1.09.100 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 in the decision 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.
C. If the hearing officer determines that the administrative citation should be upheld and the fine has not been deposited pursuant to a hardship waiver, the hearing officer shall set forth in the decision a payment schedule for the fine.
D. 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 or the amount paid in excess of the reduced fine, together with interest at the average rate earned on the city’s portfolio for the period of time that the fine or excess fine amount was held by the city.
E. The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision.
F. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon the amount or number of administrative citation fines upheld by the hearing officer. (Ord. 2020-745 § 1 (Exh. A)).
1.09.110 Late payment charges.
Any person who fails to pay to 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, as well as interest at the rate of 10 percent per annum. (Ord. 2020-745 § 1 (Exh. A)).
1.09.120 Recovery of administrative citation fines and costs.
The city may collect any past due administrative citation fine or late payment charges by use of all available legal means, including, but not limited to, means available for the collection of judgments, liens and actions for recovery of money. The city also may recover its collection costs. Special assessment liens against property may only be applied when the administrative citation fine was issued for a violation directly connected to the property. (Ord. 2020-745 § 1 (Exh. A)).
1.09.130 Right to 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 seeking review in accordance with Government Code Section 53069.4. (Ord. 2020-745 § 1 (Exh. A)).
1.09.140 Notices.
A. Whenever a notice or report is required to be given or provided under this chapter, unless different provisions herein are otherwise specifically made, such notice may be given either by personal delivery thereof to the person to be notified or by deposit in the United States mail, in a sealed envelope postage prepaid, addressed to such person to be notified at his or her last-known business or residential address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been completed at the time of deposit in a United States mail box.
B. Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.
C. Proof of giving any notice may be made by the certificate of any officer or employee of the city, or by affidavit of any person over the age of 18 years, which shows service in conformity with this code or other provisions of law applicable to the subject matter concerned. (Ord. 2020-745 § 1 (Exh. A)).