Chapter 1.20
ADMINISTRATIVE REMEDIES
Sections:
1.20.030 Administrative citation.
1.20.040 Procedures for administrative citations.
1.20.050 Contents of administrative citation.
1.20.060 Appeal of administrative citation.
1.20.090 Allocation of administrative penalties.
1.20.110 Notice to Department of Motor Vehicles.
1.20.120 Civil or criminal actions not affected.
1.20.010 Title and purpose.
(a) This chapter shall be cited as the “administration remedies ordinance.”
(b) The city council finds there is a need for an alternative method of enforcement for violations of this code. The city council finds an appropriate method of enforcement is an administrative citation.
(c) The procedures established in this chapter shall be in addition to criminal, civil or any other legally established procedures that may be pursued to address violations of this code. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4100.)
1.20.020 Definitions.
For purposes of this chapter, the following definitions shall apply:
(a) The term “director” includes the following: city manager, community development director, maintenance and recreation director, police chief, fire chief, and any of their designees. Should any of these positions be eliminated or the titles changed, references to them shall be considered to be references to the new title for the renamed positions or to the replacement official designated with the responsibilities of any eliminated position.
(b) The term “person” means any natural person, firm, association, business, trust, organization, corporation, partnership, company or any other entity.
(c) The term “enforcement officer” means any person authorized to enforce violations of this code.
(d) The term “hearing examiner” means any person appointed by the city manager or director to preside over the administrative hearings provided for in Section 1.20.060.
(e) The term “city” means the city of Fremont.
(f) The term “contestant” means any person or entity who is the registered owner, property owner, legal owner, driver, operator, tenant, lessee, or is otherwise liable for penalties in accordance with the applicable section of this code, and who contests or disputes liability for civil penalties. (Ord. 2135 § 1, 10-17-95; amended during 2012 reformat. 1990 Code § 1-4110.)
1.20.030 Administrative citation.
(a) In accordance with Cal. Gov’t Code § 53069.4, an enforcement officer may issue an administrative citation assessing a civil penalty to any person violating provisions of this code and any ordinance of the city of Fremont as provided in this chapter.
(b) Each provision of this code or any ordinance of the city of Fremont that is violated constitutes a separate offense. Each and every day a violation of any provision exists constitutes a separate and distinct offense.
(c) A civil penalty assessed by an administrative citation shall be payable directly to the city of Fremont.
(d) Civil penalties assessed by an administrative citation shall be collected in accordance with the procedures specified in this chapter. (Ord. 2135 § 1, 10-17-95; Ord. 2488 § 7, 10-1-02. 1990 Code § 1-4115.)
1.20.040 Procedures for administrative citations.
(a) An enforcement officer may issue an administrative citation to any person or property owner responsible for a violation of this code or any ordinance of the city of Fremont in the manner prescribed in Section 1.20.050. The administrative citation shall be issued on a form prescribed by the city manager.
(b) A warning notice shall be provided to a person responsible for a continuing violation which pertains to building, plumbing, electrical or other structural or zoning issues that do not create an immediate danger to health or safety. The warning notice shall specify the action required to correct or otherwise remedy the violation(s). Not less than 24 hours’ and not more than 30 calendar days’ notice shall be allowed from the date of the warning notice for the party to correct or otherwise remedy the violation before a notice of violation may be issued. The enforcement officer shall assign a specific reasonable warning period for each violation. The enforcement officer shall consider the cost of abatement or correction, the time required to obtain permits for correction, the time needed to obtain estimates, drawings and contracts for correction, time required for physical relocation of personal property, and the time required to review submittals in determining the reasonable warning period to be assigned for each violation.
(c) Sections 18.15.030 and 18.15.060, Chapter 18.153, Sections 18.170.020, 18.170.030, 18.170.040, 18.170.050, 18.170.060, 18.171.010(a) and (b), 18.171.020(a) through (d), 18.171.030(b) and (d), 18.183.150, 18.183.180(c) through (g), 18.190.050, 18.190.160(a) and (e) through (i), 18.190.330(a) through (e), 18.190.350(a) through (g), 18.190.360, 18.190.370(d), 18.190.420, 18.190.430(a) through (e), 18.190.480(a) and (b), 18.190.530(b) through (d), 18.190.560(a) through (g), 18.190.580(a) through (g), 18.190.620, 18.193.010(c), 18.193.080(i), 18.193.110(a) through (e), 18.193.120(a) through (m), 18.230.020, 18.275.020 and 18.280.020 shall be deemed business regulations for the purposes of this chapter despite their location in Title 18 (Planning and Zoning). The warning notice mandate of Cal. Gov’t Code § 53069.4(a)(2)(A) shall not apply to these specified sections of this code or to any violations of building, plumbing, electrical, or other similar structural or zoning requirements of this code if the violation exists as a result of or to facilitate the illegal cultivation of cannabis.
(d) The enforcement officer shall identify the responsible party. A responsible party shall be deemed to be the person who is in immediate control of the premises or activity which constitutes a violation of this code, or the actor of prohibited conduct, the business owner, or the property owner.
(e) Once the person responsible for the violation is identified, the enforcement officer may obtain the signature of that person on the administrative citation to establish personal service of the citation.
(f) If the responsible person is not located, refuses or otherwise fails to sign the administrative citation, the lack of signature shall in no way affect the validity of the citation or the proceedings and the enforcement officer shall make service of the citation as otherwise provided herein.
(g) The enforcement officer may post the citation by affixing the citation to a surface in a conspicuous place on the property whenever the violation is connected to a condition of real property and poses a risk to the public health or safety. Conspicuous posting of the citation is not required when personal service is accomplished or when conspicuous posting poses a hardship or is excessively expensive. Failure of a posted notice to remain in place after posting shall in no way affect the validity of the citation or the proceeding.
(h) If the enforcement officer is unable to locate the responsible party, or the responsible party refuses or otherwise fails to sign for the violation, the administrative citation shall be served on the responsible party, or the property owner when appropriate, as follows:
(1) The administrative citation shall be mailed to the responsible party or property owner(s) by first-class mail, postage prepaid, with a declaration of service under penalty of perjury.
(2) The declaration of service shall be made by the person mailing the administrative citation showing the date and manner of service by mail and reciting the name and address of the citation addressee.
(3) The failure of any responsible party or person with an interest in the property, where applicable, to receive a properly addressed citation shall not affect the validity of any proceeding under this chapter.
(4) Service of the administrative citation in the manner described above shall be effective on the date of mailing. (Ord. 2135 § 1, 10-17-95; Ord. 2161 § 1, 4-2-96; Ord. 2176 § 1, 6-4-96; Ord. 2190 § 1, 9-3-96; Ord. 2488 § 8, 10-1-02; Ord. 1-2009 § 1, 1-6-09; Ord. 28-2018 § 2, 12-18-18. 1990 Code § 1-4120.)
1.20.050 Contents of administrative citation.
The administrative citation shall include all the following:
(a) Date and location of the violation(s) and the approximate time the violation(s) was(were) observed, identifying markings (i.e., name brand, serial number, color or other description);
(b) Section(s) of this code violated and description of how the section(s) was(were) violated;
(c) Description of corrective action required, where appropriate;
(d) A statement requiring immediate correction of the violation(s), where appropriate, and an explanation of the consequences for failure to correct the violation(s);
(e) Amount of civil penalty imposed for the violation(s) and the additional penalties for late payment;
(f) Explanation of the applicable time limits, the penalty payment procedure and the consequences of failure to pay the fine;
(g) Rights of appeal; and
(h) Signature of the enforcement officer and the officer’s employment number, where applicable. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4125.)
1.20.060 Appeal of administrative citation.
(a) Persons receiving an administrative citation may appeal it within 21 calendar days from the date the notice of municipal code violation is served by mail. The notice to appeal must be in writing, accompanied by the penalty deposit, specifying the basis for the appeal in detail, and must be filed with the administrative processing agency as indicated in the administrative citation. If the deadline falls on a weekend or city holiday, then the deadline shall be extended until the next regular business day.
(b) As soon as practicable after receiving the written notice of appeal, the citation processing agency shall review the citation and, if found to be complete and in conformance with Section 1.20.050, fix a date, time and place for hearing before a hearing examiner appointed by the city manager. Written notice of the time and place for the hearing may be served by first-class mail, personal service, or posting the notice at least 10 calendar days prior to the date of the hearing to the party protesting the citation and anyone else who received notice of the citation, by any one of the following means:
(1) Personal service;
(2) First-class mail; or
(3) Posting the notice of hearing conspicuously on or in front of the property on which the violation is located.
(c) The failure of any person with an interest in the property to receive such properly addressed notice of the hearing shall not affect the validity of any proceedings under this chapter. Service by first-class mail, postage prepaid, shall be effective on the date of mailing.
(d) Failure of any person to file an appeal in accordance with the provisions of this section shall constitute waiver of that person’s rights to administrative determination of the merits of the citation and the amount of the penalty.
(e) A hearing examiner shall be designated by the city manager for all appeal hearings under this chapter. The contestant may request the city manager to recuse a hearing examiner for reasons of actual prejudice against the party’s cause. The hearing examiner shall conduct an orderly fair hearing and accept evidence on which persons commonly would rely in the conduct of their business affairs as follows:
(1) A valid citation shall be prima facie evidence of the violation;
(2) The hearing examiner shall accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation;
(3) The owner, agent, person responsible for the violation, or any other interested person may present testimony or evidence concerning the violation and the means and time frame for correction.
(f) The city manager shall establish all appropriate administrative regulations for implementing this chapter, conducting hearings and rendering decisions pursuant to this section.
(g) The hearing examiner may not reduce, waive or conditionally reduce the penalties stated in the citations or any late fees assessed. The hearing examiner may impose conditions and deadlines for correction of violations or payment of outstanding penalties.
(h) The hearing examiner shall make findings based on the record of the hearing and make a written decision based on the findings. The processing agency shall preserve all exhibits submitted by the parties and shall serve the decision by first-class mail on the contestant within 10 working days after the hearing. The decision of the hearing examiner affirming or dismissing the citation is final and conclusive, subject only to review by the city manager as provided herein. There are no appeals to the city council. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4130.)
1.20.070 Court review.
(a) After receipt of the hearing examiner’s decision, the contestant may file an appeal with the municipal court for de novo review. The request for review shall be submitted within 20 days of the date of mailing of the decision of the examiner. The request for review shall be submitted on a form prescribed by the court. The request for municipal court review shall state the reasons the party objects to the hearing examiner’s findings or decision.
(b) The municipal court shall conduct a de novo hearing, except the contents of the processing agency file shall be received into evidence.
(c) A copy of the notice of violation and imposition of penalty shall be entered as prima facie evidence of the facts stated therein.
(d) The municipal court fee for filing shall be $25.00. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the city. Any deposit of penalty shall be refunded by the city in accordance with the judgment of the court.
(e) If the penalty has not been deposited, and the decision of the court is against the contestant, the city may proceed to collect the civil penalty in the manner provided by law. (Ord. 2135 § 1, 10-17-95; Ord. 2161 § 2, 4-2-96; Ord. 2176 § 2, 6-4-96. 1990 Code § 1-4135.)
1.20.080 Penalties assessed.
(a) The city council may establish a civil penalty schedule setting forth the penalty to be assessed by an administrative citation for violation of a particular provision of this code or any city of Fremont ordinance in accordance with Cal. Gov’t Code § 53069.4(a)(1).
(b) If the violator or property owner fails to correct the violation, subsequent administrative citations may be issued for the same violation(s). The amount of the penalty shall increase at a rate specified in this chapter.
(c) Except as otherwise provided by a civil penalty schedule established by the city council, the civil penalty assessed by administrative citation for violation of a provision of this code or a city ordinance shall be as follows:
(1) First administrative citation: A fine not exceeding $100.00;
(2) Second administrative citation within one year for violation of the same code section: A fine not exceeding $200.00;
(3) Third or subsequent administrative citation within one year for violation of the same code section: A fine not exceeding $500.00.
(d) Except as otherwise provided by a civil penalty schedule established by the city council, the civil penalty assessed by administrative citation for violation of Title 15 shall be as follows:
(1) First administrative citation: A fine not exceeding $130.00;
(2) Second administrative citation within one year for violation of the same ordinance: A fine not exceeding $700.00;
(3) Third or subsequent administrative citation within one year for violation of the same ordinance: A fine not exceeding $1,300;
(4) For commercial property that has an existing building at the time of the violation and the owner failed to remove visible refuse or prohibit unauthorized use of the property, each additional violation of the same ordinance within two years of the first violation: A fine not exceeding $2,500.
(e) A fine levied pursuant to subsection (d)(2) or (d)(3) of this section may be appealed to the building official in writing within 10 calendar days of the date the citation is issued based on a showing by the responsible party that the responsible party has made a bona fide effort to comply after the first violation and that payment of the full amount would impose an undue financial burden on the responsible party. Regardless of the decision of the building official, any party receiving a fine pursuant to subsection (d)(2) or (d)(3) of this section retains the right to appeal the citation pursuant to Section 1.20.060 (Appeal of administrative citation), except that the hearing examiner specified under that section may not reduce, waive or conditionally reduce the penalties stated in the citations or any late fees assessed. The 21-calendar-day appeal period of Section 1.20.060(a) shall not be extended due to any appeal of the fine to the building official pursuant to subsection (d)(2) or (d)(3) of this section.
(f) Payment of the penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the city.
(g) All penalties assessed shall be payable to the city.
(h) The failure of any person to pay a penalty assessed by administrative citation within the time specified on the citation shall result in the assessment of an additional late fee to be charged. The amount of the late fee shall be 100 percent of the total amount of the administrative penalty owed. The combined penalty and late fee shall not exceed $1,000.
(i) The failure of any person to pay a penalty assessed by administrative citation within the time specified on the citation constitutes a debt to the city. To enforce that debt, the director of financial services may file a claim with the small claims court; impose an assessment lien as set forth below; or pursue any other legal remedy to collect such money.
(j) The director of financial services may impose a special assessment against the property that is the subject of a citation if the citation has been issued to the property owner. The director of financial services shall record a notice of lien in the office of the county recorder when the special assessment procedure is used. When so made and confirmed, the cost shall constitute a lien on that property for the amount of the assessment. After confirmation and recordation, a copy shall be turned over to the Alameda County tax collector. At that point, it will be the duty of the tax collector to add the amounts of the respective assessments to the next regular property tax bills levied against the lots and parcels of land for municipal purposes. Those amounts shall be collected at the same time and in the same manner as ordinary property taxes are collected, and shall be subject to the same penalties and procedures under foreclosure and sale as provided for with ordinary municipal taxes. Alternatively, after recording, the lien may be foreclosed by judicial or other sale in the manner and means provided by law.
(k) If the failure by any person to pay a penalty assessed by administrative citation results in the filing of an action with the small claims court or any other court to collect the fine, the violator shall be liable for all costs associated with the filing of such action if the city prevails. (Ord. 2135 § 1, 10-17-95; Ord. 2276 § 4, 2-3-98; Ord. 2488 §§ 9, 10, 10-1-02; Ord. 28-2018 § 3, 12-18-18. 1990 Code § 1-4140.)
1.20.090 Allocation of administrative penalties.
Penalties collected in the manner described in this chapter shall be deposited in the general fund. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4145.)
1.20.100 Severability.
If any provision of this chapter, or the application thereof to any person or circumstances, is held invalid, such invalidity shall not affect other provisions or applications of this chapter which can be given effect without the invalid provision or application, and to this end the provisions of this chapter are declared to be severable. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4150.)
1.20.110 Notice to Department of Motor Vehicles.
Nothing contained herein shall in any way be construed to inhibit or alter any obligations any person may have to report the sale, dismantlement, or destruction of a vehicle or vehicle parts to the State Department of Motor Vehicles in accordance with applicable laws. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4155.)
1.20.120 Civil or criminal actions not affected.
Any administrative citation pursuant to this section shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate the public nuisance or violation or to seek compensation for damages suffered. A civil or criminal action may be brought concurrently with any other process regarding the same public nuisance or violation. (Ord. 2135 § 1, 10-17-95. 1990 Code § 1-4160.)