Chapter 1.05
PENALTY PROVISIONS

Sections:

1.05.010    Violations, penalties and enforcement.

1.05.020    Enforcement – Citation authority.

1.05.030    Administrative citations.

1.05.040    Violation of administrative provisions.

Prior history: 1966 Code §§ 1020, 1021 and 1023; Ords. 232, 350, 428, 503, 564, 572, 576, 600, 606, 613, 640 and 676.

1.05.010 Violations, penalties and enforcement.

The city council of the city of Millbrae intends to secure compliance with the provisions of the Millbrae Municipal Code (to be known as “this code”). To the extent that such compliance may be achieved by less drastic methods of enforcement, the following alternate, separate and distinct methods may be utilized. Each method set forth herein is intended to be mutually exclusive and the city may use one or more methods concurrently or consecutively to achieve compliance against continuing violations. Unless otherwise provided in this code, each and every day a violation exists or is permitted to exist constitutes a separate offense. Except as provided in MMC 1.05.040, notwithstanding any other provision of this code, each violation of the provisions of this code may be enforced alternatively as follows:

A.    Infractions. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this code may be prosecuted for an infraction. Police officers or employees designated by MMC 1.05.020 may issue written citations for infraction violations. Any person convicted of an infraction under the provisions of this code shall be punishable either by fines established by resolution of the city council, or where no fine is specified therein by:

1.    A fine not exceeding one hundred dollars for a first violation;

2.    A fine not exceeding two hundred dollars for a second violation of the same ordinance within one year; and

3.    A fine not exceeding five hundred dollars for each additional violation of the same ordinance within one year.

B.    Misdemeanor. Any person who knowingly or willfully violates any of the provisions or knowingly or willfully fails to comply with any of the mandatory requirements of this code may be prosecuted for a misdemeanor. Written citations for misdemeanors may be issued by police officers or by employees designated by MMC 1.05.020. Any person convicted of a misdemeanor under the provisions of this code shall be punished by a fine not exceeding one thousand dollars or imprisonment for a term not exceeding six months, or by both a fine and imprisonment.

C.    Administrative Citation. Upon a finding by a police officer or an employee designated by MMC 1.05.020 that a violation exists, he or she may issue an administrative citation under the provisions set forth in MMC 1.05.030.

D.    Nuisance. In addition to the penalties herein provided, any condition caused or permitted to exist or any act or conduct in violation of any of the provisions of this code, is a public nuisance, and the city may summarily abate such nuisance pursuant to the Community Preservation Ordinance, Chapter 6.25 MMC and applicable state laws. Each day that such condition continues shall be regarded as a new and separate offense. (Ord. 680, § 1; 1976 Code § 1-1.01).

1.05.020 Enforcement – Citation authority.

A.    Persons employed in the following positions may enforce the provisions of the Millbrae Municipal Code designated below, and implementing regulations, by the issuance of citations. Further, those persons are authorized to exercise the authority provided by Penal Code Section 836.5. Those individuals occupying the following positions are authorized to issue citations for violations of the corresponding sections of this code:

 

Position			Code Title, Chapter or Section
1.	Community Development Department:
	Community Development Director		Chapters 4.20 and 4.60 MMC (private property uses only); Chapters 5.35 (private property uses only), 5.60, 5.65, 5.85, 5.95, 5.125, and 5.130 MMC; Chapters 6.05 through 6.15, 6.25, 6.30 and 6.40 MMC; Chapters 7.05 MMC (MMC 7.05.020 used only in conjunction with other enforcement actions) and 7.30 MMC; Chapters 8.50 through 8.60, and 8.70 MMC; Chapters 9.05 through 9.80 MMC; Chapters 10.05 through 10.35 MMC
	Building Official, Deputy Building Official and Building Inspector		Chapter 6.25 MMC; Chapters 7.05 MMC (MMC 7.05.020 for building citations only) and 7.30 MMC; Chapters 8.50 and 8.70 MMC; Chapters 9.05 through 9.80 MMC; Chapters 10.05, 10.10, 10.25 and 10.30 MMC
	Planning Manager and Planners		Chapters 10.05 through 10.35 MMC
	Code Enforcement Officer/Community Preservation Specialist		Chapters 4.20 and 4.60 MMC (private property uses only); Chapters 5.125, 5.35 (private property uses only), 5.60, 5.65, 5.85, 5.95 and 5.130 MMC; Chapters 6.05 through 6.15, 6.25, 6.30, 6.40 and 6.45 MMC; Chapters 7.05 (MMC 7.05.020 used only in conjunction with other enforcement actions) and 7.30 MMC; Chapters 8.50 through 8.60, and 8.70 MMC; Chapters 9.05 through 9.80 MMC; Chapters 10.05 through 10.35 MMC
2.	Finance Department:
	Finance and Administrative Services Director/IT Service Manager		Chapter 3.30 MMC; Chapter 7.05 MMC
	Business License Account Clerk		Chapter 7.05 MMC
3.	Fire Department:
	Fire Chief; Assistant Fire Chief; Division Chief, Fire Captain; Fire Marshal, Fire Prevention Officer, Fire Inspector		Chapter 4.65 MMC; Chapter 6.25 MMC; Chapter 8.70 MMC; Chapter 9.80 MMC
4.	Recreation Department:
	Parks and Recreation Director; Recreation Director; Recreation Superintendent; Recreation Services Manager; Recreation Coordinator		Chapters 4.50 and 4.55 MMC; Chapters 5.30 and 5.70 MMC; MMC 5.90.020; Chapter 5.95 MMC; MMC 6.04.060 through 6.04.080 and 6.14.020; Chapters 6.15 and 6.40 MMC
5.	Public Works:
	Director of Public Works; Senior Civil Engineer		MMC 4.05.140; Chapters 4.20 and 4.85 MMC; Chapters 5.85 and 5.95 MMC; MMC 6.04.060 through 6.04.080; Chapter 6.05 MMC; MMC 6.14.020 MMC; Chapters 6.15, 6.25, 6.30, 6.40 and 6.45 MMC; Chapters 8.05, 8.10, 8.20 through 8.30, 8.35, 8.45, 8.55 and 8.70 MMC; Chapter 9.45 MMC; MMC 10.10.330 and 10.10.340
	Deputy Director of Public Works		MMC 4.05.140, Chapters 4.20, 4.45 and 4.85 MMC; Chapters 5.85 and 5.95 MMC; MMC 6.04.060 through 6.04.080; Chapter 6.05 MMC; MMC 6.14.020; Chapters 6.15, 6.25, 6.30 and 6.40 MMC; Chapters 8.05, 8.10, 8.20 through 8.30 and 8.45 through 8.70 MMC; Chapter 9.45 MMC; MMC 10.10.330 and 10.10.340
	Associate Engineer; Assistant Engineer; Public Works Inspector		Chapters 4.20 and 4.85 MMC; Chapter 5.85 MMC; Chapters 6.25 and 6.30 MMC; Chapters 8.05, 8.30 and 8.70 MMC; Chapters 9.45 and 9.60 MMC; MMC 10.10.330 and 10.10.340
	Environmental Programs Manager and Staff		Chapters 6.05, 6.30, 6.40 and 6.45 MMC; Chapter 8.45 MMC; Chapter 9.60 MMC
	Industrial Waste Inspector and Laboratory/Source Control Supervisor		Chapters 6.05 and 6.40 MMC; Chapter 8.20 MMC, Articles V and VI; MMC 8.70.130
	Public Works Supervisor; Senior Maintenance Worker; Maintenance Technician; Lead Worker		MMC 4.45.010; Chapters 4.50 and 4.55 MMC; Chapters 5.30, 5.70, 5.85 and 5.95 MMC; MMC 6.04.060 through 6.04.080 and 6.14.020; Chapter 6.15 MMC; Chapters 8.05, 8.10, 8.20, 8.25, and 8.45 through 8.70 MMC; MMC 10.10.330 and 10.10.340
6.	Police Department:
	Parking Enforcement Officer		Chapter 4.15 MMC
	Community Service Officer		Chapter 4.15 MMC

B.    Nothing in this chapter will diminish or otherwise modify the authority of persons who are empowered to enforce the Millbrae Municipal Code because of their status as peace officers or because of other authorizing status. (Ord. 680, § 1; Amended by Ord. 717, § 2; Ord. 721, § 3; Ord. 732, § 2; Ord. 742, § 2; Ord. 755, § 3; Ord. 754, § 1; Ord. 776, § 2; Ord. 788, § 1; Ord. 791, § 3; 1976 Code § 1-1.02).

1.05.030 Administrative citations.

A.    Definitions. As used in this chapter, the terms listed in this section shall have the meanings specified.

1.    “Responsible person” means any individual who is the owner or occupant of real property, the owner or authorized agent of any business, company, or entity, or the parent or the legal guardian of any person under the age of eighteen years, who causes or maintains a violation of the Millbrae Municipal Code or applicable state code.

2.    “Enforcement officer” means any employee with the authority to enforce the Millbrae Municipal Code, or applicable state codes as provided in MMC 1.05.020.

B.    Authority.

1.    Any person violating any provision of the Millbrae Municipal Code or applicable state code may be issued an administrative citation by an enforcement officer as provided in this chapter. A violation of this code includes, but is not limited to, all violations of the Millbrae Municipal Code, the California construction codes adopted by the city council, or the failure to comply with any condition imposed by any entitlement, permit, agreement or environmental document issued or approved under the provisions of this code.

2.    Each and every day a violation of this code or applicable state code exists constitutes a separate and distinct offense.

3.    A civil fine shall be assessed by means of an administrative citation issued by the enforcement officer and shall be payable directly to the city of Millbrae.

4.    A fine shall be assessed in the amount specified by resolution of the city council, or where no amount is specified:

a.    A fine not exceeding one hundred dollars for a first violation;

b.    A fine not exceeding two hundred dollars for a second violation of the same ordinance, code, entitlement, permit, agreement or environmental document within one year from the date of the first violation; or

c.    A fine not exceeding five hundred dollars for each additional violation of the same ordinance, code, entitlement, permit, agreement or environmental document within one year from the date of the first violation.

C.    Service Procedures.

1.    An administrative citation on a form approved by the city manager may be issued to the responsible person by an enforcement officer for violations of the municipal code or applicable state code by any of the following:

a.    Personal Service. The enforcement officer may attempt to locate and personally serve the responsible person and obtain the signature of the responsible person on the administrative citation. If the responsible person served refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or of any subsequent proceedings.

b.    Service of Citation by Mail. The enforcement officer may mail the administrative citation to the responsible person by first class mail.

c.    Service of Citation by Posting Notice. The enforcement officer may post the administrative citation on any real property within the city in which the city has knowledge that the responsible person has a legal interest, and such posting shall be deemed effective service.

D.    Contents of Notice. Each administrative citation shall contain the following information:

1.    Date, approximate time, and address or definite description of the location where the violation(s) was observed;

2.    The code sections or conditions violated and a description of the violation(s);

3.    An order to the responsible person to correct the violations within the time specified, and an explanation of the consequences of failure to correct the violation(s);

4.    The amount of the fine for the violation(s);

5.    An explanation of how the fine shall be paid and the time period by which it shall be paid;

6.    Identification of rights of appeal, including the time within which the administrative citation may be contested and the place to obtain a request for hearing form to contest the administrative citation; and

7.    The name and signature of the enforcement officer and, if possible, the signature of the responsible person.

E.    Satisfaction of Administrative Citation. Upon receipt of an administrative citation, the responsible person must do the following:

1.    Pay the fine to the city within fifteen days from the correction date of the administrative citation. All fines assessed shall be paid to the city. Payment of a fine shall not excuse or discharge the failure to correct the violation(s) nor shall it bar further enforcement action by the city.

2.    Remedy the violation(s), if the violation(s) is of such a nature that it can be remedied. If the violation(s) is corrected before the date provided on the citation, no fine shall be imposed. If the responsible person fails to correct the violation(s), subsequent administrative citations may be issued for the same violation(s). The amount of the fine for failure to correct the violation(s) shall increase at a rate specified in this chapter or by resolution of the council.

F.    Appeal of Administrative Citation. Any recipient of an administrative citation may contest that there was a violation of the Millbrae Municipal Code or that he or she is the responsible person by completing a request for hearing form and returning it to the city within fifteen days from the date of receipt of the administrative citation, together with an advance deposit in the amount of the fine or notice that a request for an advance deposit hardship waiver has been filed pursuant to subsection G of this section. Any administrative citation fine which has been deposited shall be refunded if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation(s) or that there was no violation(s) as charged in the administrative citation. For the purposes of this section, an administrative citation is deemed received on the day it is personally served or posted, or if served by mail, five calendar days after the citation or notice is sent.

G.    Advance Deposit Hardship Waiver.

1.    Any person who intends to request a hearing to contest that there was a violation of the code or that he or she is the responsible person and who is financially unable to make the advance deposit of the fines as required in subsection F of this section may file a request for an advance deposit hardship waiver.

2.    The request shall be filed with the department of finance on an advance deposit hardship waiver application form within ten days of the date of the administrative citation.

3.    The requirement of depositing the full amount of the fine as described in subsection F of this section shall be stayed unless or until the director of finance makes a determination not to issue the advance deposit hardship waiver.

4.    The director of finance may waive the requirement of an advance deposit set forth in subsection F of this section and issue the advance deposit hardship waiver only if the cited party submits to the director a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the director the person’s actual financial inability to deposit with the city the full amount of the fine in advance of the hearing.

5.    If the director of finance determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the city within ten days of the date of that decision or thirty days from the date of the administrative citation, whichever is later.

6.    The director of finance 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 director of finance shall be final.

7.    The written determination of the director of finance shall be served upon the person who applied for the advance deposit hardship waiver.

H.    Hearing Officer. The city manager shall designate the hearing officer for the administrative citation hearing. The employment, performance evaluation, compensation and benefits of the hearing officer, if any, shall not be directly or indirectly conditioned upon the amount of administrative citation fines upheld by the hearing officer.

I.    Hearing Procedure.

1.    No hearing to contest an administrative citation before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted, and, the fine has been deposited in advance.

2.    A hearing before the hearing officer shall be set for a date that is not less than fifteen and not more than sixty days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten days prior to the date of the hearing.

3.    The hearing officer shall only consider evidence that is relevant to whether the violation(s) of the Millbrae Municipal Code or other applicable state code existed on the date(s) specified in the administrative citation.

4.    The responsible person contesting the administrative citation shall be given the opportunity to testify and present witnesses and evidence concerning the administrative citation.

5.    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 his or her administrative remedies.

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

7.    If 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 also shall be served by mail on the person requesting the hearing at least five days prior to the date of the hearing.

8.    At least ten days prior to the hearing, the recipient of an administrative citation shall be provided with copies of the citations, reports and other documents submitted or relied upon by the enforcement officer. No other discovery is permitted. Formal rules of evidence shall not apply.

9.    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.

J.    Hearing Officer’s Decision.

1.    After considering all of the testimony and evidence submitted at the hearing, the hearing officer shall issue a written decision within ten days of the hearing to uphold or deny the administrative citation and shall list in the decision the reason supporting that decision. The decision of the hearing officer shall be final.

2.    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.

3.    If the hearing officer determines that the administrative citation should be canceled, then the city shall refund the amount of the deposited fine within fifteen days from the determination.

4.    The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision.

K.    Failure to Pay Fines. The failure of any person to pay the civil penalty assessed by an administrative citation within the time specified on the citation will necessitate further action by the city to collect the fine, any attorney’s fees or other costs expended in the administrative citation process, including those attorney’s fees and costs incurred in the collection process. The city shall keep an itemized listing of all such expenses. The city may pursue any and all legal remedies to collect the civil penalties and these expenses, including but not limited to instituting a legal action in any court of competent jurisdiction to collect the debt, and/or filing a lien against the property where the violations of the city’s ordinance(s) occurred.

1.    Legal Action. The matter may be referred to the finance/IT service manager, the responsible department head, or the city attorney to file a legal action in any court of competent jurisdiction to collect the civil penalty assessed and any associated city expenses. Reasonable attorneys’ fees and costs shall be awarded to the prevailing party.

2.    Lien Procedure. The city may file a lien on the property at which the violations occurred in the following manner:

a.    The city shall provide notice of its intent to file a lien on a form approved by the city manager to the responsible person in the same manner as provided in subsections (C)(1)(a) through (c) of this section. Notice shall also be given to the owner of record of the property based on the last equalized assessment roll or the supplemental roll, whichever is more current, and the owner of record as recorded in the county recorder’s office.

b.    The city’s notice shall include the following information:

i.    Date, approximate time, and address or definite description of the location where the violation(s) was observed;

ii.    The code sections or conditions violated and a description of the violations;

iii.    The amount of the fines and a listing of all expenses incurred by the city as of that date for which the city intends to file a lien;

iv.    The deadline for requesting a hearing to challenge the imposition of the lien is thirty days from the date of the notice;

v.    Notice that the subject of the hearing is limited to any challenge to the imposition of the lien, and not the underlying fine and city expenses;

vi.    Notice that the city is entitled to statutory interest on the lien from the date the lien is filed;

c.    Hearing Officer. The city manager shall designate the hearing officer for the lien hearing in the same manner as provided in subsection H of this section.

i.    No hearing to contest the imposition of the city’s lien for fines and expenses before a hearing officer shall be held unless and until a request for hearing form has been completed and submitted.

ii.    A hearing must be requested within thirty days of notice by the city of its intention to file a lien. A hearing before the hearing officer shall be set for a date that is not less than thirty and not more than sixty days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The person requesting the hearing shall be notified of the time and place set for the hearing at least twenty days prior to the date of the hearing.

iii.    The hearing officer shall only consider evidence that is relevant to whether the lien shall be imposed, and the reasonableness of the city’s expenses. The hearing officer shall not consider evidence regarding the underlying violations of the Millbrae Municipal Code, or the appropriateness of the penalties imposed.

iv.    The responsible person contesting the imposition of the lien shall be given the opportunity to testify and present witnesses and evidence concerning the imposition of the lien and the reasonableness of the city’s expenses.

v.    The hearing officer may impose the lien or deny its imposition. The hearing officer also may allow in whole or in part or disallow in whole or in part the inclusion of the city’s expenses in any lien imposed. The hearing officer may not reopen the issue of the amount of penalties imposed and may not consider that issue in deciding whether or not to impose the lien.

vi.    The failure of any responsible person to appear at the lien hearing shall constitute a waiver on the issue of the propriety of the city’s expenses and the imposition of the lien, and a failure to exhaust his or her administrative remedies.

vii.    The notice of lien and any additional documents submitted by the city shall constitute prima facie evidence of the respective facts contained in those documents.

viii.    If the city submits any additional documents concerning the imposition of the lien, or the amount of the city’s expenses, to the hearing officer for consideration at the hearing, then copies of those documents shall be served by mail on the person requesting the hearing at least ten days prior to the date of the hearing.

ix.    Other than otherwise provided, there is no other discovery permitted in connection with the lien hearing. Formal rules of evidence shall not apply at the hearing.

x.    The hearing officer may continue the hearing and request additional information from the city or the responsible party prior to issuing a written decision.

d.    Hearing Officer’s Decision.

i.    After consideration of all of the testimony and evidence submitted at the hearing, the hearing officer shall issue decision in writing within ten days of the hearing. The decision of the hearing officer shall be final.

ii.    Both the city and the responsible party shall be served with a copy of the hearing officer’s written decision.

iii.    If the city prevails, it may file its lien in the amount allowed by the hearing officer. That lien shall have the same effect, force, and priority of a judgment lien, and may be collected when the property is sold. It shall be recorded in the county recorder’s office.

iv.    If the hearing officer determines that the city may not impose a lien, the city may pursue any and all alternate remedies.

e.    Right to Judicial Review. Any person aggrieved by a decision of the hearing officer at the lien hearing may obtain review of the decision as allowed under state law.

L.    Right to Judicial Review. Any person aggrieved by a decision of a hearing officer on an administrative citation may obtain review of the decision by filing a petition for review with the San Mateo County Municipal Court in accordance with the timelines and provisions as set forth in California Government Code Section 53069.4.

M.    Notices.

1.    An administrative citation or any notice to be given by this chapter shall be served on the responsible person in accordance with the provisions of this chapter, as described in subsection C of this section.

2.    An administrative citation or any notice to be given by this chapter is deemed received on the day it is personally served or posted, or, if served by mail, five calendar days after the citation or notice is sent.

3.    Failure to receive any notice specified in this chapter does not affect the validity of proceedings conducted hereunder.

N.    Severability and Validity. If any section, subsection, paragraph or sentence of this chapter, or any part thereof, is for any reason found by a court of competent jurisdiction to exist unconstitutional, invalid or beyond the authority of the city of Millbrae, such decision shall not affect the validity or effectiveness of the remaining portions of this chapter. (Ord. 680, § 1, Amended by Ord. 698, § 1; Ord. 788, § 1; 1976 Code § 1-1.03).

1.05.040 Violation of administrative provisions.

The violation of any administrative provisions of this code by any employee of the city shall not be a misdemeanor under this code. Such violations may be deemed a failure to perform the duties under, or observe the rules and regulations of, the department, office or personnel rules adopted by the city council, and may be grounds for dismissal. (Ord. 680, § 1; 1976 Code § 1-1.04).