Chapter 1.19 MUNICIPAL CODE AND ORDINANCE ENFORCEMENT

City enforcement issues have become increasingly varied and complex. Alternative enforcement processes have been adopted by other public agencies as a means to address budget difficulties and resource shortages, and to streamline operations. Alternative enforcement processes minimize time delays that can result from increasingly crowded criminal and civil court dockets.

This chapter sets forth a variety of enforcement options to effectively and timely address code and ordinance enforcement matters in order to preserve and protect the quality of life in the neighborhoods and communities of the city of Pacific Grove. This chapter allows traditional criminal prosecution, civil action and nuisance abatement as enforcement. This chapter further establishes several administrative enforcement procedures. [Ord. 07-022 § 2, 2007].

1.19.020 Administrative citation process overview.

Administrative citations generally address municipal code and ordinance violations that the city, in its sole discretion, deems to be minor or transient in nature. The city adopts the administration citation enforcement process, set forth in PGMC 1.19.040 through 1.19.150, inclusive, pursuant to California Government Code Section 53069.4, which provides for de novo review of administrative citations in court if a person wishes to challenge an administrative decision upholding an administrative citation. For example, and not by exclusion, administrative citations may be used to enforce provisions regulating signs, yard waste, false alarms, noise issues, vehicle parking, minor or nonrecurring violations of PGMC Title 18, Buildings and Construction, PGMC Title 23, Zoning, or similar matters.

An enforcement officer issues an administrative citation that lists the violation and the administrative fine amount and describes how to pay the fine or request a hearing to contest the citation. The administrative citation may be contested through an administrative hearing process. The fine must be deposited in advance of the administrative hearing, but a procedure to waive the deposit is allowed for hardship. If not set forth in this code, the amount of the administrative citation fine is set by resolution. Penalties and interest shall be added for late payment of administrative fines.

The administrative citation process is set forth beginning at PGMC 1.19.040. [Ord. 07-022 § 3, 2007].

1.19.030 Administrative compliance order process overview.

Administrative compliance orders generally address municipal code and ordinance violations that the city, in its sole discretion, deems not suitable for the administrative citation process contemplated by PGMC 1.19.020. For example, and not by exclusion, administrative compliance orders may be used for serious, continuing or recurring violations of PGMC Title 18, Buildings and Construction, PGMC Title 23, Zoning, or similar matters.

An administrative compliance order is issued to a responsible party by a city enforcement officer. The compliance order sets forth a description of the observed violation(s), a description of what the responsible party is required to do to bring the property into compliance, and the date by which compliance must be achieved. The compliance order provides notice as to administrative penalties that shall accrue if compliance with the order is not achieved by the date listed on the order. The administrative compliance order may be contested through an administrative hearing process. The decision may contain an order to correct any violations determined to exist, together with an order to pay administrative penalties and costs.

The administrative compliance order process is set forth beginning at PGMC 1.19.150. [Ord. 07-022 § 4, 2007].

1.19.040 Administrative citations.

(a) The administrative citation process provided for in this chapter shall be in addition to any other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this code or an ordinance of the city of Pacific Grove.

(b) The administrative citation process set forth in this chapter shall not apply to continuing violations this code, or to an ordinance of the city that pertains to building, plumbing, electrical, or other similar structural or zoning issues. [Ord. 07-022 § 5, 2007].

1.19.050 Definitions.

For purposes of this chapter, the term “enforcement officer” shall mean and refer to any employee or agent of the city holding authority to enforce violations of this code or an ordinance. This shall include the city manager, and any person designated as an enforcement officer by the city manager. [Ord. 07-022 § 6, 2007].

1.19.060 Service of citations, orders and notices.

All citations, orders and notices shall be served in accordance with the provisions of Chapter 1.12 PGMC. [Ord. 07-022 § 7, 2007].

1.19.070 Citation issuance.

(a) Whenever an enforcement officer determines that a violation of a provision has occurred, the enforcement officer shall be authorized to 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) Reference to the provision of this code or ordinance that was violated and a description of the circumstances pertaining to the violation;

(4) The amount of the fine related to the violation determined in accord with this chapter;

(5) A description of the fine payment process, including a statement of the time within which and the place to which the fine shall be paid;

(6) An order prohibiting continuation or repeated occurrence of the violation described in the administrative citation;

(7) A description of the administrative citation review process, including the time within which the citation may be contested and the place from which a request for hearing form to contest the citation may be obtained; and

(8) The name and signature of the citing enforcement officer. [Ord. 07-022 § 8, 2007].

1.19.080 Citation fines.

(a) The fines for each municipal code or ordinance violation imposed pursuant to this chapter shall be set forth in the schedule of fines established by resolution of the city council. In the absence of a designated fine, the default fine for each violation shall be $50.00 per day.

(b) The schedule of fines shall specify an additional fine due for late payment of any fine if not paid in full on or before the date the payment of the fine is due.

(c) The fine stated upon any duly issued administrative citation shall be paid to the city within 30 days from the date of service of the administrative citation.

(d) Any administrative citation fine paid pursuant to this section shall be refunded in accordance with PGMC 1.19.130 if it is determined, after a hearing, that the person charged in the administrative citation was not responsible for the violation or that there was no violation as charged in the administrative citation.

(e) Payment of a fine under this chapter shall not excuse or discharge any continuation or repeated occurrence of the violation that is the subject of the administrative citation.

(f) 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. The city may collect any past due administrative citation fine or late payment charge by use of all available legal means.

(g) Any failure to pay the city any fine imposed pursuant to the provisions of this chapter on or before the date that fine is due shall be deemed a violation of this section enforceable pursuant to the provisions of Chapter 1.16 PGMC. The city attorney shall be directed to collect fines that are due and payable under this section. [Ord. 07-022 § 9, 2007].

1.19.090 Hearing request.

(a) Any recipient of an administrative citation may contest that there was a violation of this code or an ordinance of the city, or that he or she is the responsible party, by completing a request for hearing form and returning it to the city within 30 days from the date set forth on the administrative citation, together with an advance deposit of the fine or notice that a request for an advance deposit hardship waiver has been filed pursuant to PGMC 1.19.100. A request for hearing form may be obtained from the office of the city manager.

(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, then 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. 07-022 § 10, 2007].

1.19.100 Advance deposit hardship waiver.

(a) Any person who intends to request a hearing to contest whether a municipal code or ordinance violation occurred, or that he or she is the responsible party and who is financially unable to make the advance deposit of the fine as required in PGMC 1.19.080, may file a request for an advance deposit hardship waiver.

(b) The request shall be filed with the city manager on an advance deposit hardship waiver application form, available from the office of the city manager, within 10 days of the date of the administrative citation.

(c) The requirement to deposit the full amount of the fine as described in PGMC 1.19.080 shall be stayed unless or until the city manager makes a determination not to issue the advance deposit hardship waiver.

(d) The city manager may waive the requirement of an advance deposit set forth in PGMC 1.19.080 and issue the advance deposit hardship waiver only if the cited party submits to the city manager a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the city manager the person’s actual financial inability to deposit with the city the full amount of the fine in advance of the hearing.

(e) If the city manager determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the city within 10 days of the date of that decision or 30 days from the date of the administrative citation, whichever is later.

(f) The city manager 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 city manager shall be final.

(g) The written determination of the city manager shall be served upon the person who filed the request for an advance deposit hardship waiver. This determination shall be subject to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure, and the time limit set by PGMC 1.20.010 shall apply. [Ord. 07-022 § 11, 2007].

1.19.110 Hearing officer selection.

The presiding officer of the hearing officer panel shall, by random lot, designate one of the seven members of the hearing officer panel to be the hearing officer for each administrative citation hearing. Should that hearing officer be disqualified for cause, or should that hearing officer otherwise be unable to conduct the hearing, the presiding officer shall, by random lot, designate a successor hearing officer from available members of the hearing officer panel. [Ord. 07-022 § 12, 2007].

1.19.120 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 PGMC 1.19.080, or an advance deposit hardship waiver has been issued in accordance with PGMC 1.19.100.

(b) A hearing before the hearing officer shall be set for a date that is not less than 15 days and not more than 60 days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The hearing officer shall have sole discretion to grant any request for continuance of the hearing.

(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. The city shall submit its report on the alleged violation, setting forth a detailed recommendation as to relevant findings and conclusions that flow from the facts presented and a recommended decision based upon those findings and conclusions. This report shall meet the standards for administrative findings set forth in Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974).

(d) 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 their administrative remedies.

(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 question witnesses and/or request additional information from the enforcement officer or the recipient of the administrative citation prior to closing the hearing. [Ord. 07-022 § 13, 2007].

1.19.130 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 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. If the fine has not been deposited, the hearing officer shall set forth in the decision a payment schedule for the fine.

(c) 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, together with interest. If the fine has not been deposited, the hearing officer shall cancel the obligation to tender the fine.

(d) The recipient of the administrative citation shall be served with a copy of the hearing officer’s written decision. A copy of the decision shall be forwarded to all members of the hearing officer panel. [Ord. 07-022 § 14, 2007].

1.19.140 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 for review with the Superior Court in Monterey County in accordance with the timelines and provisions set forth in California Government Code Section 53069.4. [Ord. 07-022 § 15, 2007].

1.19.150 Administrative compliance orders.

(a) The administrative compliance order process provided for in this chapter shall be in addition to any other legal remedies, criminal or civil, which may be pursued by the city to address any violation of this code or an ordinance of the city.

(b) Use of the administrative compliance order process shall be at the sole discretion of the city. [Ord. 07-022 § 16, 2007].

1.19.160 Compliance orders.

(a) Whenever an enforcement officer, as defined by PGMC 1.19.050, determines that a violation of any provision of this code or city ordinance has occurred, is occurring or exists, the enforcement officer 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 of the violation;

(2) The address or description of the location where the violation occurred;

(3) Reference to the provision of this code or ordinance that was violated and a description of the circumstances pertaining to the violation;

(4) The actions required to correct the violation;

(5) The time period after which administrative penalties will begin to accrue if compliance with the order has not been achieved;

(6) The penalty related to the violation, if compliance is not achieved;

(7) The name and signature of the citing enforcement officer; and

(8) 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. [Ord. 07-022 § 17, 2007].

1.19.170 Hearing officer selection – Notice of hearing.

(a) If the enforcement officer determines that each violation has been corrected within the time specified in the compliance order, no further action shall be taken.

(b) If full compliance as to each violation is not achieved within the time specified in the compliance order, the enforcement officer shall advise the presiding officer of the hearing officer panel. The presiding officer of the hearing officer panel shall, by random lot, designate one member of that hearing officer panel to be the hearing officer for the compliance order hearing. Should that hearing officer be unable to conduct the hearing, or should that hearing officer be disqualified for cause, the presiding officer shall, by random lot, designate a successor from that hearing officer panel.

(c) The hearing officer shall ensure that the notice provisions of Chapter 1.12 PGMC have been followed. Notice of the hearing shall be given at least 10 days prior to the date of the hearing. The hearing officer shall have sole discretion to grant any request for continuance of the hearing. [Ord. 07-022 § 18, 2007].

1.19.180 Compliance hearing.

(a) At the place and time set forth in the notice of compliance hearing, the hearing officer shall conduct a hearing on the compliance order issued pursuant to PGMC 1.19.160, in accord with rules and procedures as may be promulgated by the hearing officer panel.

(b) The hearing officer shall consider written or oral evidence in accord with rules and procedures set by the hearing officer panel pursuant to PGMC 3.30.060. Evidence regarding the alleged violation or compliance actions may be presented by any party, including the alleged violator, the owner or occupant of any real property affected by the alleged violation, and/or the city. The failure of any party to appear at the hearing shall constitute a failure to exhaust his or her administrative remedies.

(c) The compliance order and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. The report on the alleged violation shall set forth a detailed recommendation as to relevant findings and conclusions that flow from the facts presented and a recommended decision based upon those findings and conclusions. This report shall meet the standards for administrative findings set forth in Topanga Assn. for a Scenic Community v. County of Los Angeles, 11 Cal.3d 506 (1974).

(d) The hearing officer may question witnesses and/or request additional information from the enforcement officer or any party prior to closing the hearing.

(e) Within a reasonable time following the conclusion of the hearing, the hearing officer shall make findings and issue a determination, as to each alleged violation, regarding:

(1) The existence of the violation;

(2) The identity of each responsible party;

(3) The failure of the responsible party to take required corrective action within the required time period.

Findings shall be supported by substantial evidence received at the hearing.

(f) If the hearing officer finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the compliance order, the hearing officer shall issue an administrative order in accord with PGMC 1.19.190.

(g) If the hearing officer finds that no violation has occurred or that the violation was corrected within the time period specified in the compliance order, the hearing officer shall issue a finding as to those facts. [Ord. 07-022 § 19, 2007].

1.19.190 Administrative order.

If the hearing officer determines that a violation occurred which was not corrected within the time period specified in the compliance order, he or she shall issue an administrative order that imposes any or all of the following:

(a) An order to correct each violation, including a schedule for correction where appropriate;

(b) Administrative penalties as provided in PGMC 1.19.200; and/or

1.19.200 Administrative penalties.

(a) The hearing officer shall be authorized to impose administrative penalties for the violation of any provision of this code or ordinance in an amount not to exceed a maximum of $2,500 per day for each continuing 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 hearing officer 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 effect the violation may have upon adjoining properties;

(5) The good faith efforts of the violator to come into compliance;

(6) The economic impact of the penalty on the violator; and/or

(7) The impact of the violation on the community. [Ord. 07-022 § 21, 2007].

1.19.210 Administrative costs.

(a) The hearing officer shall assess reasonable and necessary administrative costs against the violator when it finds that a violation has occurred, or that compliance has not been achieved within the time specified in the compliance order.

(b) The hearing officer shall assess reasonable and necessary administrative costs against the city when he or she finds that a violation has not occurred.

(c) The administrative costs shall include reasonable and necessary costs incurred in connection with the matter before the hearing officer including, but not limited to, costs of investigation, costs incurred to prepare for the hearing and for the hearing itself, and costs for all reinspections necessary to enforce the compliance order.

(d) The hearing officer may waive the assessment of administrative costs against either party where unique circumstances are present, or in the interests of justice. [Ord. 07-022 § 22, 2007].

1.19.220 Failure to comply with administrative order.

(a) Any person who fails to comply with an administrative order issued in accord with this chapter, or to pay to the city any amount due 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. The city may collect any past due administrative citation fine or late payment charge by use of all available legal means, including recordation of a lien pursuant to PGMC 1.19.260 through 1.19.290.

(b) Any failure to comply with an administrative order issued in accord with this chapter, or to pay to the city any amount imposed pursuant to the provisions of this chapter on or before the date that fine is due, shall be deemed a violation of this section enforceable pursuant to the provisions of Chapter 1.16 PGMC.

(1) A personal obligation of the violator; and/or

(2) 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. 07-022 § 23, 2007].

1.19.230 Judicial review.

Any person aggrieved by an administrative order may obtain review of the administrative order in the superior court by filing with the court a petition for writ of mandate pursuant to PGMC 1.20.010. [Ord. 07-022 § 24, 2007].

1.19.240 Report of compliance after administrative order.

If the city manager determines that compliance has been achieved after a compliance order has been sustained by the hearing officer, the city manager shall file a report with the hearing officer panel indicating that compliance has been achieved. [Ord. 07-022 § 25, 2007].

1.19.250 Compliance dispute.

(a) If the city manager does not file a report pursuant to PGMC 1.19.240, any person who believes that compliance has been achieved may request a compliance hearing before the hearing officer by filing a request for a hearing with the presiding officer of the hearing panel, together with full payment of the compliance dispute hearing fee set by the council.

(b) A hearing on the compliance dispute shall be noticed in accordance with Chapter 1.12 PGMC.

(c) The hearing officer shall determine if compliance has been achieved and, if so, when it was achieved. [Ord. 07-022 § 26, 2007].

1.19.260 Authority to impose lien/special assessment.

Whenever the amount of an administrative fine, penalty and/or administrative cost imposed by a hearing officer 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 shall constitute a lien or, in the alternative, a special assessment against the real property on which the violation occurred. [Ord. 17-020 § 2, 2017; Ord. 07-022 § 27, 2007].

1.19.270 Lien/special assessment procedure and hearing.

(a) Upon determination by the city manager or his designee that any administrative fine, penalty and/or administrative cost imposed by a hearing officer 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, the city council may adopt a resolution confirming imposition of the debt and approving filing a lien or special assessment against the subject real property.

(b) The resolution shall state the amounts due and owing, the name of the agency imposing the lien/special assessment (city of Pacific Grove), the date of the order or other notice describing the property violation or nuisance in question, the street address, legal description and assessor’s parcel number of the subject property, and the name and address of the recorded owner of the property.

(c) Any person whose real property is subject to a lien/special assessment pursuant to this chapter may file a written protest with the city clerk and/or may object to assessment of the lien/special assessment orally at the city council meeting.

(d) Each written protest must contain a description of the property in which the protesting party is interested and the grounds for each protest.

(e) The city council, after the hearing and after considering each protest, shall adopt a resolution confirming, discharging or modifying the amount of the lien/special assessment. [Ord. 17-020 § 2, 2017; Ord. 07-022 § 28, 2007].

1.19.280 Recordation and satisfaction of lien.

(a) Thirty days following 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 Monterey County, California.

(b) The lien may carry additional administrative charges as set forth by resolution of the city council. Interest at the legal rate per year shall accrue on the principal amount of the lien until satisfied pursuant to law. A lien pursuant to this chapter may be foreclosed by an action brought by the city for a money judgment.

(c) A copy of the adopted resolution shall be served on the property owner, along with notice to the property owner that a lien in the amounts stated in the resolution will be filed against the subject property in the Monterey County recorder’s office.

(d) The notice set forth in subsection (c) of this section shall be served in accordance with Chapter 1.12 PGMC. If the owner of record cannot be found after diligent search, the notice may be served by posting a copy in a conspicuous place upon the property for a period of 10 days and publication in a newspaper of general circulation published in Monterey County.

(e) Once payment in full is received by the city for outstanding penalties, costs, and accrued interest, the city manager shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so this notice may be recorded with the office of the county recorder. Such notice of satisfaction shall cancel the city’s lien. [Ord. 17-020 § 2, 2017; Ord. 07-022 § 29, 2007].

1.19.290 Recordation and satisfaction of special assessment.

(a) The resolution adopted by the city council under this section shall be entitled to recordation.

(b) A copy of the adopted resolution shall be served on the property owner, along with notice that the property may be sold after three years by the tax collector for unpaid delinquent assessments. Such notice shall be served by certified mail to the property owner. If the owner of record cannot be found after diligent search, the notice may be served by posting a copy in a conspicuous place upon the property for a period of 10 days and publication in a newspaper of general circulation published in Monterey County. The tax collector’s power of sale shall not be affected by the failure of the property owner to receive notice.

(c) The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the assessment relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrance for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the assessment shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection.

(d) Interest at the legal rate per year shall accrue on the principal amount of the assessment until satisfied pursuant to law.

(e) The city may, subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code, conduct a sale of vacant residential developed property for which the payment of the assessment is delinquent.

(f) Once payment in full is received by the city for outstanding penalties, costs, and accrued interest, the city manager shall provide written notice to the tax collector that the special assessment has been paid in full and should no longer be imposed against the subject property. Such written notice shall cancel the city’s special assessment. [Ord. 17-020 § 2, 2017; Ord. 07-022 § 30, 2007].