Chapter 1.05
ADMINISTRATIVE REMEDIES
Sections:
1.05.048 Decision of director.
1.05.050 Appeals Hearing Board review.
1.05.060 Appeals hearing Board – Notice of hearing.
1.05.070 Appeals Hearing Board – Findings and order.
1.05.080 Administrative order.
1.05.090 Administrative penalties.
1.05.100 Administrative costs.
1.05.110 Failure to comply with administrative compliance order.
1.05.120 Right of judicial review.
1.05.130 Recovery of administrative civil penalties.
1.05.140 Report of compliance after administrative order.
1.05.170 Public hearing and protests.
1.05.190 Satisfaction of lien.
1.05.010 Applicability.
(A) This chapter provides for administrative remedies, which are in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this code.
(B) Use of this chapter shall be at the sole discretion of the City. (Ord. CCO-20-04 § 1, 2020)
1.05.020 Director – Defined.
For purposes of this chapter, “director” means the head of any City department which is charged with responsibility for enforcement of any provision of this code. (Ord. CCO-20-04 § 1, 2020)
1.05.030 Compliance order.
(A) Whenever the director determines that a violation of any provision of this code within the director’s responsibility is occurring or exists, the director may issue a written compliance order to any person responsible for the violation.
(B) A compliance order issued pursuant to this chapter shall contain the following information:
(1) The date and location of the violation;
(2) The section of this code violated and a description of the violation;
(3) The actions required to correct the violation;
(4) The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;
(5) 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;
(6) A warning that the compliance order shall become final unless a written request for hearing before the director is received within the time as set forth in MSMC 1.05.045. (Ord. CCO-20-04 § 1, 2020)
1.05.040 Method of service.
(A) All notices required by this chapter shall be served as provided in MSMC 1.03.120.
(B) Where real property is involved, written notice shall be mailed to the property owner at the address as shown on the last equalized county assessment roll.
(C) Where personal service or service by mail upon the property owner is unsuccessful, a copy of the order shall be conspicuously posted at the property which is the subject of the order.
(D) The failure of any person to receive any notice required under this chapter shall not affect the validity of any proceedings taken under this chapter. (Ord. CCO-20-04 § 1, 2020)
1.05.045 Director’s hearing.
(A) If a person subject to a compliance order disputes the basis for the issuance of the compliance order, the person must file a request for hearing before the director within 14 calendar days of the date that the compliance order was mailed or personally delivered to him or her.
(B) Upon the receipt of a timely request for hearing, the director shall schedule a hearing as soon as reasonably practicable and provide a notice of hearing.
(C) The notice of hearing before the director shall be mailed or delivered personally to the person subject to the compliance order not later than seven calendar days prior to the scheduled date of the hearing.
(D) At the hearing before the director, the person subject to a compliance order may provide any relevant evidence or testimony. The hearing will be conducted informally, and the technical rules of evidence shall not apply. The director shall have the ability to control the conduct of the proceeding, including the ability to limit testimony and the admissibility of evidence that is unduly repetitious or make other rulings or place other limitations on the hearing that the director deems to be in the interests of judicial economy.
(E) The person subject to a compliance order may be represented by another person at that hearing before the director. (Ord. CCO-20-04 § 1, 2020)
1.05.048 Decision of director.
(A) After closing the hearing, the director shall render a decision sustaining, reversing or modifying the compliance order.
(B) A written decision shall be mailed or delivered personally to the person subject to the compliance order.
(C) If the person subject to the compliance order disputes the decision of the director, they may file a request for hearing with the City Clerk or their designee within 10 days of the date of the written decision of the director.
(D) If there is no timely request for appeal, the decision of the director shall become final. (Ord. CCO-20-04 § 1, 2020)
1.05.050 Appeals Hearing Board review.
(A) If the director determines that all violations have been corrected within the time specified in the compliance order, and there has been no request for a hearing before the director, no further action shall be taken.
(B) If full compliance is not achieved within the time specified in the compliance order, or the person subject to the compliance order has filed a timely request for hearing from the decision of the director, the director shall advise the City Clerk or their designee to set a hearing before the Board.
(C) The City Clerk or their designee shall cause a written notice of hearing to be served on the violator and, where real property is involved, a notice of hearing shall be served on the property owner at the address as it appears on the last equalized county assessment roll available on the date the notice is prepared. (Ord. CCO-20-04 § 1, 2020)
1.05.060 Appeals hearing Board – Notice of hearing.
(A) Every notice of hearing on a compliance order shall contain the date, time and place at which the hearing shall be conducted by the Appeals Hearing Board.
(B) Each hearing shall be set for a date not less than 15 days nor more than 60 days from the date of the notice of hearing unless the director determines that the matter is urgent or that good cause exists for an extension of time.
(C) Upon a timely appeal from a decision of the director, the Appeals Hearing Board shall conduct a new hearing and shall exercise original jurisdiction over the matter.
(D) At the hearing before the Appeals Hearing Board, after a director’s hearing, the person subject to a compliance order may object to the determination that a violation has occurred and/or that the violation has continued to exist. The failure of any person subject to a compliance order, pursuant to this chapter, to appear at the hearing shall constitute a failure to exhaust administrative remedies.
(E) If the person subject to the compliance order fails to request a director’s hearing, or fails to file an appeal after the decision of the director, the basis for the issuance of a compliance order will be deemed admitted, and the hearing shall be limited to whether or not compliance has been achieved and the assessment of penalties. (Ord. CCO-20-04 § 1, 2020)
1.05.070 Appeals Hearing Board – Findings and order.
(A) At the place and time set forth in the notice of hearing, the Appeals Hearing Board shall conduct a hearing on the compliance order issued pursuant to MSMC 1.05.030.
(B) The Board shall consider any written or oral evidence consistent with its rules and procedures regarding the violation and compliance by the violator, or if the violation is in connection with real property, or by the owner of the property upon which the violation has occurred or is occurring.
(C) Within a reasonable time following the conclusion of the hearing, the Board shall make findings and issue its determination regarding:
(1) The existence of the violation or that the existence of the violation was deemed admitted under MSMC 1.05.060(E);
(2) The failure of the violator or property owner, if applicable, to take required corrective action within the required time period.
(D) The Board shall issue written findings on each violation. The findings shall be supported by evidence received at the hearing.
(E) If a violation has been deemed admitted, or upon appeal from a decision of the director and the Board finds by a preponderance of the evidence that a violation has occurred, if the violation was not corrected within the time period specified in the compliance order, the Board shall issue an administrative order.
(F) If upon the appeal from a decision of the director the Board finds that no violation has occurred or, in all cases, that the violation was corrected within the time period specified in the compliance order, the Board shall issue a finding of those facts. (Ord. CCO-20-04 § 1, 2020)
1.05.080 Administrative order.
If the Appeals Hearing Board determines that a violation occurred which was not corrected within the time period specified in the compliance order, the Board shall issue an administrative order described in MSMC 1.05.070 which imposes any or all of the following:
(A) An order to correct, including a schedule for correction where appropriate;
(B) Administrative penalties as provided in MSMC 1.05.090;
(C) Administrative costs as provided in MSMC 1.05.100. (Ord. CCO-20-04 § 1, 2020)
1.05.090 Administrative penalties.
(A) The Appeals Hearing Board may impose administrative penalties for the violation of any provision of this code in an amount not to exceed a maximum of $2,500 per day for each ongoing 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 Board 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 good faith efforts of the violator to come into compliance;
(5) The economic impact of the penalty on the violator;
(6) The impact of the violation on the community;
(7) Such other factors as justice may require.
(C) Administrative penalties imposed by the Board shall accrue from the date specified in the compliance order and shall cease to accrue on the date the violation is corrected as determined by the director or the Board.
(D) The Board, in its discretion, may suspend the imposition of applicable penalties for any or all of the periods of time during which:
(1) The violator has filed for necessary permits which are both:
(a) Required to achieve compliance; and
(b) Actively pending before the City, State or other appropriate governmental agency.
(2) The violator has pursued a good faith dispute of the validity of the compliance order through a hearing before the director.
(E) Administrative penalties assessed by the Board shall be due by the date specified in the administrative order.
(F) Administrative penalties assessed by the Board are a debt owed to the City and, in addition to all other means of enforcement, if the violation is located on real property, may be enforced by means of a lien against the real property on which the violation occurred.
(G) If the violation is not corrected as specified in the Board’s order to correct, administrative penalties shall continue to accrue on a daily basis until the violation is corrected, subject to the maximum amount set forth in subsection (A) of this section.
(H) If the violator gives written notice to the director that the violation has been corrected and if the director finds that compliance has been achieved, the director shall deem the date the written notice was postmarked or personally delivered to the director or the date of the final inspection, whichever first occurred, to be the date the violation was corrected. If no written notice is provided to the director, the violation will be deemed corrected on the date of the final inspection. (Ord. CCO-20-04 § 1, 2020)
1.05.100 Administrative costs.
(A) The Appeals Hearing Board shall assess administrative costs against the violator when it finds that a violation has occurred, and that compliance has not been achieved within the time specified in the compliance order.
(B) The administrative costs may include any and all costs incurred by the City in connection with the matter before the Appeals Hearing Board including, but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all reinspections necessary to enforce the compliance order. (Ord. CCO-20-04 § 1, 2020)
1.05.110 Failure to comply with administrative compliance order.
Failure to pay the assessed administrative penalties and administrative costs specified in the administrative order of the Appeals Hearing Board may be enforced as:
(A) A personal obligation of the violator; and/or
(B) 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. CCO-20-04 § 1, 2020)
1.05.120 Right of judicial review.
Any person aggrieved by an administrative order of the Appeals Hearing Board may obtain review of the administrative order in the superior court by filing with the court a petition for writ of mandate pursuant to MSMC 1.07.010. (Ord. CCO-20-04 § 1, 2020)
1.05.130 Recovery of administrative civil penalties.
The City may collect the assessed administrative penalties and administrative costs by use of all available legal means, including recordation of a lien pursuant to MSMC 1.05.160. (Ord. CCO-20-04 § 1, 2020)
1.05.140 Report of compliance after administrative order.
If the director determines that compliance has been achieved after a compliance order has been sustained by the Appeals Hearing Board, the director shall file a report indicating that compliance has been achieved. (Ord. CCO-20-04 § 1, 2020)
1.05.150 Compliance dispute.
(A) If the director does not file a report pursuant to MSMC 1.05.140, a violator who believes that compliance has been achieved may request a compliance hearing before the Appeals Hearing Board by filing a request for a hearing with the City Clerk or their designee.
(B) The hearing shall be noticed and conducted in the same manner as a hearing on a compliance order provided in MSMC 1.05.060 through 1.05.070.
(C) The Board shall determine if compliance has been achieved and, if so, when it was achieved. (Ord. CCO-20-04 § 1, 2020)
1.05.160 Lien procedure.
(A) Whenever the amount of any administrative penalty and/or administrative cost imposed by the Appeals Hearing Board 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 may constitute a lien against the real property on which the violation occurred.
(B) The lien provided herein shall have no force and effect until recorded with the County Recorder. Once recorded, the administrative order shall have the force and effect and priority of a judgment lien governed by the provisions of Cal. Civ. Proc. Code § 697.340 and may be extended as provided in Cal. Civ. Proc. Code §§ 683.110 to 683.220, inclusive.
(C) Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law.
(D) Prior to recording any such lien, the Director of Finance shall prepare and file with the City Clerk a report stating the amounts due and owing.
(E) The City Clerk shall fix a time, date and place for hearing such report and any protests or objections thereto by City Council.
(F) The Director of Finance shall cause written notice to be served on the property owner not less than 10 days prior to the time set for the hearing. Such notice shall be served as provided in MSMC 1.03.120. (Ord. CCO-20-04 § 1, 2020)
1.05.170 Public hearing and protests.
(A) Any person whose real property is subject to a lien pursuant to MSMC 1.05.160 may file a written protest with the City Clerk or their designee.
(B) Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection.
(C) The City Council, after the hearing, shall adopt a resolution confirming, discharging or modifying the amount of the lien. (Ord. CCO-20-04 § 1, 2020)
1.05.180 Recording of 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 Siskiyou County, California. The lien may carry such additional administrative charges as set forth by resolution of the City Council. (Ord. CCO-20-04 § 1, 2020)
1.05.190 Satisfaction of lien.
Once payment in full is received by the City for outstanding penalties and costs, the Director of Finance 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 notice of satisfaction shall cancel the City’s lien. (Ord. CCO-20-04 § 1, 2020)
1.05.200 Designated body.
As an alternative to the procedures set forth in MSMC 1.05.160 through 1.05.180, the public hearing before the City Council and the imposition of a lien by the City Council referenced in those sections may be conducted and imposed by a designated body pursuant to Chapter 1.09 MSMC. (Ord. CCO-20-04 § 1, 2020)