Chapter 1.08
GENERAL PENALTY
Sections:
1.08.010 Violation—Misdemeanor.
1.08.020 Violation—Penalty.
1.08.030 Separate offenses.
1.08.040 General penalty—Continuing violations.
1.08.050 Code violations.
1.08.060 Administrative citations.
1.08.010 Violation—Misdemeanor.
No person shall violate any provision or fail to comply with any requirement of this code. A person violating a provision or failing to comply with any of the mandatory requirements of this code is guilty of a misdemeanor. (Ord. 2 § 1 (part), 1971: prior code § 1-301)
1.08.020 Violation—Penalty.
A person convicted of a misdemeanor under this code, unless specific provision is otherwise made, shall be punished by a fine of not more than five hundred dollars or by imprisonment in the county jail for a period of not more than six months, or both. (Ord. 2 § 1 (part), 1971: prior code § 1-302)
1.08.030 Separate offenses.
Each person is guilty of a separate offense for each and every day during any portion of which the violation of this code is committed, continued or permitted by that person. (Ord. 2 § 1 (part), 1971: prior code § 1-303)
1.08.040 General penalty—Continuing violations.
In addition to the penalties provided herein, any condition caused or permitted to exist in violation of a provision of this code is a public nuisance and may be summarily abated as such. Each day that the condition continues it is a new and separate offense. Pursuant to Section 38773.5 of the California Government Code, in any action, administrative proceeding, or special proceeding brought by the city of Foster City to abate a public nuisance, the prevailing party shall be entitled to reasonable attorneys’ fees. Recovery of attorneys’ fees shall be limited as follows:
A. To those actions or proceedings where the city has elected to recover attorneys’ fees at the initiation of such actions or proceedings.
B. The amount of attorneys’ fees in any action, administrative action, or special proceeding awarded to a prevailing party shall not exceed the amount of reasonable attorneys’ fees incurred by the city in the action or proceeding. (Ord. 506 § 1, 2003: Ord. 2 § 1 (part), 1971: prior code § 1-304)
1.08.050 Code violations.
Notwithstanding any other provision of this code, whenever violation of any section contained in this code is punishable as a misdemeanor, the prosecuting attorney having jurisdiction to prosecute such misdemeanor may specify that the offense is an infraction and proceed with prosecution as an infraction, unless the defendant, at the time of his or her arraignment or plea, objects to the offense being made an infraction, in which event the complaint shall be amended to charge a misdemeanor and the case shall proceed on a misdemeanor complaint. (Ord. 319 § 1, 1986)
1.08.060 Administrative citations.
A. Purpose and Intent. The city council finds the enforcement of this code is an important public service. It further finds that a code enforcement system that uses a combination of judicial and administrative remedies is vital to the protection of the public’s health, safety and quality of life. This section makes certain violations of the provisions of the city of Foster City Municipal Code (hereinafter “code”) subject to administrative citations. For those code sections that provide administrative citations as an applicable remedy, this section establishes the administrative procedures for the imposition, enforcement, collection, and administrative review of civil fines issued through an administrative citation, pursuant to Government Code Section 53069.4.
B. Additional Remedy. The administrative citations provided for in this chapter are an additional enforcement remedy to all other legal remedies, criminal or civil, which may be pursued by the city, to address any violation of this code or other public nuisance. Nothing in this chapter shall be deemed a waiver of any other enforcement remedies found within this code.
C. Enforcement.
1. A city code enforcement officer or any other person designated and empowered by the provisions of this code may enforce violations of the code through an administrative citation (hereinafter collectively referred to as “enforcement officer”), if the specific code sections that have been violated identify administrative citations as a remedy for violations. “Enforcement officer” shall include a designee for edible food recovery, as that term is defined in Section 8.07.010(S). An enforcement officer shall have the authority and power to issue administrative citations in accordance with the provisions stated in this section and Government Code Section 53069.4 and to use whatever judicial and administrative remedies are available under the code and applicable state law to gain compliance.
2. An administrative fine shall be imposed by means of an administrative citation issued by an enforcement officer, and shall be paid directly to the city of Foster City, unless otherwise provided in the citation. Payment of a fine shall not excuse a failure to correct a violation, nor shall it bar concurrent or further enforcement actions by the enforcement officer or other designated official. The enforcement officer, or other designated official or the city manager, or a designee thereof, may dismiss a citation at any time if a determination is made that it was issued in error or for any other reason which warrants a dismissal, in which event any deposit of a fine shall be refunded. Notice of such action shall be given to the citee in writing. The city manager, or a designee thereof, is authorized to promulgate procedural rules and regulations governing the provisions in this chapter.
3. The procedures established in this section for the use of administrative citations shall be in addition to criminal, civil or other legal or equitable remedies established by law that may be pursued alternatively or concurrently to address violations of this code.
D. Issuance of Administrative Citation.
1. Issuance of Administrative Citation. The enforcement officer, upon discovering that any person as defined in Section 1.04.010(G), has committed any code violation(s), may issue an administrative citation to the offender if the code sections that have been violated identify administrative citations as a remedy for those violations. An administrative citation may charge several violations of the code at the same time.
2. Warning Period. When the violation pertains to building, plumbing, electrical or other similar structural or zoning issues that create an immediate danger to health or safety, an administrative citation may be issued forthwith. In the absence of an immediate danger, an administrative citation for such a violation shall not be issued pursuant to this chapter unless the responsible person has first been provided with a reasonable period, as determined by the enforcement officer, in which to complete the abatement or compliance actions. Violations of Chapter 8.07 may be issued a notice of violation as defined in Section 8.07.010 with a specified period to complete the abatement or compliance, prior to issuance of an administrative citation.
3. Citations for Acts Committed Outside Officer’s Presence. An enforcement officer may issue a citation for a violation not committed in the enforcement officer’s presence if the officer has determined, through investigation, that the citee did commit, or is otherwise responsible for, the violation.
4. Continuing Nature of Violations. Each day that a prohibited condition, use or activity under the code is committed, continued or permitted, shall be a separate violation for which a citation may be issued.
5. Administrative Citation Contents. To the extent the following information is reasonably available to the enforcement officer, the administrative citation shall be issued in a form approved by the city manager, or their designee, and shall contain the following information:
a. Name. Name and mailing address of the person who committed the violation or the person responsible for the property that is the subject of the violation.
b. Address. The address or description of the location of the violation.
c. Date/Time. The date and approximate time of commission of the violation(s), or detection thereof by an officer.
d. Code(s). The code ordinance section(s) violated.
e. Description. A description of the violation(s).
f. Fine Amount. Amount of the fine for each violation and the procedure and place to pay the fine(s).
g. Corrective Action. When appropriate, the action(s) required to correct the violation(s), and, if applicable, any deadlines or time limitations for commencing and completing such action(s).
h. Appeals. A description of the administrative citation review process and the manner by which an administrative appeal 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).
i. Deposits and Hardship Waivers. A description of the deposit requirements as set forth in this section, as well as notice of the right of all citees to apply for a hardship waiver of the deposit requirement pursuant to subsection (F)(4) of this section.
j. The name and signature of the enforcement officer.
k. Any other information deemed necessary by the city manager or their designee.
6. Service of Administrative Citation. The administrative citation shall be issued in accordance with provisions for service of notices set forth in Section 1.04.100.
7. Administrative citations issued by an enforcement officer, including any designee for edible food recovery as defined in Section 8.07.100, shall be issued in accordance with Sections 8.07.170 through 8.07.190.
E. Civil Fines, Late Charges—Collection of Fees and Costs.
1. Civil Fine Amounts Charged Through Administrative Citations. Unless otherwise specially provided in this code, the civil fine imposed through an administrative citation shall not exceed one hundred dollars for a first offense, two hundred dollars for a second offense within one year, and five hundred dollars for a third offense within one year as set forth in Sections 25132(b) and 36900(b) of the California Government Code. The amounts of such fines may be modified from time to time by a resolution of the city council, provided they do not exceed the limits set forth in this section or those allowed by state law.
2. Effect of Payment. Payment of a civil fine identified in an administrative citation shall not excuse or discharge a citee 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.
3. Effect of Abatement. Abatement of a violation shall not excuse the obligation of a citee to pay a civil fine identified in an administrative citation.
4. Debt to City. Unpaid civil fines shall be a personal obligation and debt of the citee which may be collected by the city in any manner allowed by law.
5. Recordation of Lien. For any confirmed, final or uncontested civil fine identified in an administrative citation, late charge or other fee imposed and unpaid pursuant to the procedures set forth in this chapter, the city may, in its sole discretion, record a lien with the San Mateo County recorder’s office against the real property of the citee upon which the offense occurred in accordance with Government Code Section 37783.
F. Right to an Administrative Appeal Hearing—Waiver of Advance Deposit of Fine.
1. Contesting/Appealing the Citation. Any citee may contest the violation(s), or that he or she is the person responsible for the violations, as set forth in an administrative citation by filing a request for an administrative appeal hearing on a city-approved form with the office of the city clerk, within ten calendar days from the issuance date of a citation. If the office of the city clerk does not receive the request in the required period, the citee shall have waived the right to a hearing and the administrative citation shall be deemed final.
2. No Fee Required. No fee shall be charged for the filing of a request for an administrative appeal hearing.
3. Deposit Required. Requests for a hearing shall be accompanied by the entire amount of the fine stated in the administrative citation. Failure to deposit a fine, or the tender of a nonnegotiable check in the required period, shall render a request for an administrative hearing incomplete and untimely. Fines that are deposited with the city shall not accrue interest. Fines deposited shall be returned to the person tendering the fines in the event a citation is overturned.
4. Hardship Waiver. A citee who is financially unable to deposit the civil fine identified in the administrative citation with his or her request for a hearing may complete a city-approved application form for an advance deposit hardship waiver (hereafter the “hardship waiver”). This form and all required accompanying records shall be tendered, along with a request for a hearing, to the office of the city clerk within ten calendar days from the issuance date of a citation.
a. Hardship Waiver—Form. To be considered for a hardship waiver, the application form must be complete, signed, and must be accompanied by documents that enable the city to reasonably determine the citee’s present inability to deposit the fine. 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 twelve months preceding submittal of the waiver form, as well as other documentation demonstrating the citee’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 by a citee for a hardship waiver without prior notice to the citee.
b. Hardship Waiver—Incomplete or Untimely Application. Failure to submit a timely, completed and signed hardship waiver form, along with records that support a claim of financial hardship, shall render the request for hearing incomplete and untimely. In this event, the citee shall have waived the right to a hearing and the citation shall be deemed final.
c. Hardship Waiver—Decision. The city manager or their designee shall issue a written decision specifying the reasons for issuing or not issuing the hardship waiver. This decision is final. The decision shall be served upon the person requesting the hardship waiver by first class mail. If the city determines that the citee is not entitled to a hardship waiver, the citee shall tender the full amount of the civil fine to the office of the city clerk within ten calendar days of the date the decision is deposited with the U.S. Postal Service.
5. Failure to Pay Deposit After Denial of Hardship Waiver. In the event the city clerk does not receive the full amount of the fine in the required period the city clerk shall deem the request for a hearing incomplete and untimely, and the citee shall have waived the right to a hearing and the citation shall be deemed final.
6. Contents of Request for Hearing. A request for a hearing shall contain the following:
a. The citation number.
b. The name, address, telephone and any facsimile numbers, of each person contesting the citation.
c. A statement of the reason(s) why a citation is being contested.
d. The date and signature of the citee(s).
G. Notice of Administrative Appeal Hearing. The person filing the request for an administrative appeal hearing shall be notified in writing by first class mail of the date, time and place set for this proceeding. Such notice shall be given at least ten calendar days prior to the date of the hearing. Service of this notice is deemed complete at time of mailing. The failure of a citee to receive a properly addressed notice shall not invalidate the citation or any hearing, city action or proceeding conducted pursuant to this chapter.
H. Conduct of Administrative Appeal Hearing.
1. The city manager shall designate or appoint a hearing officer. Administrative hearings are informal and formal rules of evidence and discovery do not apply.
2. The city bears the burden of proof to establish a violation and responsibility therefore by a preponderance of evidence. The citation is prima facie evidence of the violation, however, and the officer who issued the citation is not required to attend or participate at the hearing. The citee(s), and enforcement officer, if present, shall have an opportunity to present evidence and witnesses and to cross-examine witnesses. A citee may bring an interpreter to the hearing provided there is no expense to the city therefor. The hearing officer may question any person who presents evidence or who testifies at any hearing.
3. A citee may appear at the hearing in person or by written declaration executed under penalty of perjury. Such declaration and any documents in support thereof shall be tendered to and received by the office of the city clerk at least three city business days prior to the hearing.
4. If the citee fails to attend the scheduled hearing, or does not submit a written declaration in a timely manner, he or she shall be deemed to have waived the right to a hearing. In such an instance, the hearing officer shall cancel the hearing and not render a decision. In such instances, the citation shall be deemed final.
5. Hearings may be continued once at the request of a citee or the officer who issued the citation. The hearing officer may also continue the hearing for cause.
I. Hearing Officer Decision.
1. Written Decision. After considering all of the testimony and evidence submitted at the administrative appeal hearing, the hearing officer shall issue a written decision to uphold or overturn the administrative citation and shall state the reasons therefor. Each decision shall contain a statement advising the citee(s) of the twenty-day appeal right set forth in Government Code Section 53069.4(b), and the procedures and court-filing fee for its exercise. If the administrative citation is upheld and the violation has not been fully corrected as of the date of the hearing, the hearing officer shall order correction thereof in the decision and state deadline(s) to complete such action(s).
2. The citee(s) shall be served by first class mail, postmarked no later than ten calendar days from the date of the conclusion of the administrative appeal hearing, with a copy of the hearing officer’s written decision. The date the decision is deposited with the U.S. Postal Service shall constitute the date of its service. The failure of a citee to receive a properly addressed decision shall not invalidate or any hearing, city action or proceeding conducted pursuant to this chapter.
3. Decisions of the hearing officer are, in accordance with Government Code Section 53069.4(b), appealable to the superior court within twenty days after the date of their service. Each decision shall contain a statement advising the citee(s) of this appeal right and the procedures and court-filing fee for its exercise. If a hearing officer’s decision is not appealed to the superior court in accordance with Government Code Section 53069.4(b) in a timely manner, the decision shall be deemed confirmed.
4. The superior court is the sole reviewing authority and an appeal from a hearing officer’s decision is not appealable to the city council. (Ord. 642 § 3, 2021)