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HomeMy WebLinkAboutOrdinance 1706 (Reorganize Code Enforcement Program)CLERK'S CERTIFICATE I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, and Ex -officio Clerk of the Council of said City, do hereby certify that the foregoing Charter Ordinance No. 1706 entitled: "AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE SAN RAFAEL MUNICIPAL CODE TO REORGANIZE THE CODE ENFORCEMENT PROGRAM, BY AMENDING SECTIONS 1.08.020 AND 6.10.050, BY REPEALING SECTIONS 1.08.130, 1.08.140, 1.08.150, 1.08.160, 1.08.170, 1.08.180, 1.08.190, 1.08.200, AND 1.08.210, BY REPEALING SECTION 1.12.010, BY REDESIGNATING SECTION 1.12.011 AS SECTION 1.12.010, BY RETITLING CHAPTER 1.12, BY REPEALING CHAPTERS 1.16, 1.20, 1.30, 2.36 AND 2.37, AND BY ADDING CHAPTERS 1.40, 1.42, 1.44 AND 1.46" was introduced at a REGULAR meeting of the City Council of the City of San Rafael, held on the 3rd day of FEBRUARY, 1997, a summary of Ordinance No. 1706 was published as required by City Charter in the MARIN INDEPENDENT JOURNAL, a newspaper published in the City of San Rafael, and passed and adopted as an Ordinance of said City at a REGULAR meeting of the City Council of said City held on the 18th day of FEBRUARY, 1997, by the following vote, to wit: AYES: COUNCILMEMBERS: Heller, Miller, Phillips and Mayor Boro NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: Cohen WITNESS my hand and the official seal of the City of San Rafael this 19th day of FEBRUARY, 1997 JEANN LEONCINI, City Clerk ORDINANCE NO. 17Q6. AN ORDINANCE OF THE CITY OF SAN RAFAEL AMENDING THE SAN RAFAEL MUNICIPAL CODE TO REORGANIZE THE CODE ENFORCEMENT PROGRAM, BY AMENDING SECTIONS 1.08.020 AND 6.10.050, BY REPEALING SECTIONS 1.08.130, 1.08.140, 1.08.150, 1.08.160, 1.08.170, 1.08.180, 1.08.190, 1.08.200, AND 1.08.210, BY REPEALING SECTION 1.12.010, BY REDESIGNATING SECTION 1.12.011 AS SECTION 1.12.010, BY RETITLING CHAPTER 1.12, BY REPEALING CHAPTERS 1.16, 1.20, 1.30, 2.36 AND 2.37AND BY ADDING CHAPTERS 1.40, 1.42, 1.44, AND 1.46. THE CITY COUNCIL OF THE CITY OF SAN RAFAEL DOES ORDAIN AS FOLLOWS: DIVISION 1: Sections 1.08.130, 1.08.140, 1.08.150, 1.08.160, 1.08.170, 1.08.180, 1.08.190, 1.08.200, and 1.08.210 in Chapter 1.08 of the San Rafael Municipal Code are repealed, and Section 1.08.020 in Chapter 1.08 of the San Rafael Municipal Code is amended to read as follows: Section 1.08.020 Definitions ADulicable to Code Generally The following words and phrase whenever used in this Code shall be construed as defined in this section, unless it shall be apparent from their context that a different meaning is intended or unless a different meaning is specifically defined elsewhere in this Code and specifically stated to apply: "Abatement" means any action the City may take on public or private property and any adjacent property as may be necessary to remove or alleviate a nuisance, including but not limited to demolition, removal, repair, boarding and securing or replacement of property. "Administrative Order" means an order issued by an Administrative Hearing Officer after a hearing requiring a Responsible Person to correct code violations, abate a public nuisance, pay administrative civil penalties and administrative costs or take any other action as authorized or required by this Code and applicable State codes, and authorizing the City to abate the code violation or public nuisance if the Responsible Person fails to do so. "Ci r' is the City of San Rafael. "Code" means the San Rafael Municipal Code. 1 "Code Enforcement Assessment Lien" means a lien to collect outstanding administrative civil penalties and administrative costs imposed as part of an administrative enforcement proceeding with respect to a code violation or other public nuisance. "Code Enforcement Official" means the City Manager, and Department Directors, including the Director of Administrative Services, the Director of Community Development, the Public Works Director/City Engineer, the Fire Chief, the Police Chief, and any of their designated agents or representatives, including but not limited to the Code Enforcement Officer, police officers, Fire Department Division Chiefs, Fire Marshal, Deputy Fire Marshal, Fire Prevention Bureau Inspectors, Chief Building Official, Building Inspectors, the Central Mann Sanitation Agency officials designated by resolution, the Stormwater Program Manager, Parking Enforcement officers, the City Health Officer, and the County Health Officer and his or her designated Registered Environmental Health Specialists carrying out the duties of City Health Officer by agreement with the City. "Council" means the City Council of this City. "Conn " is the County of Marin. "Administrative Hearing Officer" means any person appointed by the City Manager to preside over administrative enforcement hearings. "Financial Institution" means any person that holds a recorded mortgage or deed of trust on a property. "Imminent Life Safetv Hazard" means any condition which creates a present, extreme and immediate danger to life, property, health or public safety. "Legal Interest" means any interest that is represented by a document such as a deed of trust, quitclaim deed, mortgage, judgment lien, tax or assessment lien, mechanic's lien or other similar instrument which is recorded with the County Recorder. "Notice and Order" means a document used in Code violation and other public nuisance proceedings which provides notice of the Code violations or other public nuisances and orders a Responsible Person to take certain steps to correct the violations. "Notice of Code Enforcement Assessment Lien" means a document or form, approved by the City Manager, which is recorded with respect to a Code Enforcement Assessment Lien. "Notice of Satisfaction" means a document or form, approved by the City Manager, which indicates that all outstanding administrative civil penalties and administrative costs have either been paid in full, or that the City has negotiated an agreed amount, or that a subsequent administrative or judicial decision has resolved the outstanding debt. "Oath" includes affirmations and oaths. "Owner" applied to a building or land, shall include any part owner, joint owner, tenant, tenant in common, joint tenant, of the whole or a part of such building or land. "Person" means any natural person, firm, joint venture, joint stock company, partnership, association, club, company, corporation, business trust, organization, or the manager, lessee, agent, servant, officer or employee of any of them or any other entity which is recognized by law as the subject of rights or duties, not including the City of San Rafael, the San Rafael Redevelopment Agency, or their officers, employees or agents.. "Public Nuisance" means any condition caused, maintained or permitted to exist, which violates any provision of this Code or applicable state codes, or which constitutes a threat to the public's health, safety and welfare, or which significantly obstructs, injures or interferes with the reasonable or free use of property in a neighborhood, community or to any considerable number of persons, or which constitutes any of the acts affecting the public as provided in Civil Code Sections 3479 and 3480, or which constitutes an unlawful obstruction or encroachment on any public property, including but not limited to any public street, highway, right-of-way, open space area, park or building, or which consists of any of the following: 1. Land, the topography, geology or configuration of which, whether in natural state or as a result of grading operations, excavation or fill, causes erosion, subsidence, or surface water drainage problems of such magnitude as to be injurious or potentially injurious to public health, safety and welfare, to public property or facilities, or to a considerable number of adjacent private properties.. 2. Buildings which are abandoned, partially destroyed, or permitted to remain for an unreasonable period of time in a state of partial construction, whether or not any building permit has expired. 3. The failure to close by such means as shall be acceptable to the City all doorways, windows, and other openings in vacant structures. 4. Broken windows constituting hazardous conditions or inviting trespassers and malicious mischief. 5. Overgrown, dead, decayed, diseased or hazardous, trees, bushes, weeds or vegetation which are likely to harbor rats, vermin, or other pests, or the condition of which impair traffic safety, or otherwise cause a threat to public safety. 6. Broken or discarded furniture, household equipment or other machinery or equipment located on property, visible from public streets, or open and accessible from public streets and likely to be attractive and dangerous to children. 7. Garbage cans stored in front or side yards and visible from public streets. Ka J 8. Packing boxes, lumber, trash, dirt and other debris either inside or outside buildings or located on vacant property and visible from public streets. 9. Buckets, cans or other containers containing stagnant water which is likely to harbor mosquitoes or other vectors. 10. Abandoned or disabled vehicles located on property, visible from public streets, or open and accessible from public streets and likely to be attractive and dangerous to children. 11. Pools, ponds, water containers, or excavations that are open and accessible from public streets and likely to be attractive and dangerous to children. "Responsible Person" means a person who a Code Enforcement Official determines is responsible for causing or maintaining a public nuisance or a violation of the Code or applicable State Codes. The term "Responsible Person" includes but is not limited to a property owner, tenant, person with a Legal Interest in real property or person in possession of real property. "State" is the State of California. "Street" includes all streets, highways, avenues, lanes, alleys, courts, places, squares, curbs or other public ways in this city which have been or may hereafter be dedicated and open to the public use, or such other public property so designated in any law of this state. "Tenant or Occupant" applied to a building or land shall include any person who occupies the whole or part of such building or land, whether alone or with others. "Written" includes printed, typewritten, mimeographed, multigraphed, printout by computer, facsimile and those items listed in California Evidence Code Section 250. DIVISION 2: Section 1.12.010 of Chapter 1.12 of the San Rafael Municipal Code shall be repealed, Section 1.12.011 of Chapter 1.12 of the San Rafael Municipal Code shall be re -designated as Section 1.12.010, and Chapter 1.12 of the San Rafael Municipal Code shall be re -titled as follows: Chanter 1.12 UNCLAIMED PROPERTY DIVISION 3: Chapters 1. 16, 1.20, 1.30, 2.36 and 2.37 of the San Rafael Municipal Code are repealed. DIVISION 4: Chapter 1.40 is added to the San Rafael Municipal Code to read as follows: Chanter 1.40 CODE ENFORCEMENT AUTHORITY AND POWERS 4 1.40.010 Declaration of Purpose. The Council finds that the enforcement throughout the City of this Code, including such codes as have been incorporated by reference, as well as any applicable State codes, is an important public service. Code enforcement is vital to the protection of the public's health, safety and quality of life. The Council recognizes that code enforcement depends upon the codification of precise regulations that can be effectively applied in administrative and judicial proceedings. The Council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with code regulations. 1.40.020 General Code Enforcement Authoritv. The City Manager and the other Code Enforcement Officials have the authority and powers necessary to gain compliance with the provisions of this Code and applicable State codes. These powers include but are not limited to the power to enter and inspect public and private property, and use whatever judicial and administrative remedies are available under this Code and applicable State codes, and in the case of Code Enforcement Officials other than peace officers (whose powers are otherwise specified in the Penal Code), the power to arrest and issue criminal citations as provided under Penal Code Section 836.5 with respect to provisions of this Code and applicable State codes it is their discretionary duty to enforce. 1.40.030 Authoritv to Enter and Inspect Property. A Code Enforcement Official is authorized to enter upon any property or premises, and into any buildings or structures located thereon, to ascertain whether the provisions of this Code or applicable State codes are being obeyed, and to make any examinations and surveys as may be necessary in the performance of their enforcement duties. These may include the taking of photographs, samples or other physical evidence. All inspections, entries, examinations and surveys shall be done in a reasonable manner. If an owner, occupant or agent refuses permission to enter or inspect, the Code Enforcement Official may seek an administrative inspection warrant pursuant to the procedures provided in State law, including California Civil Procedure Section 1822.50 et seq., as it may be amended from time to time. 1.40.040 Procedure in Cases Involving Misdemeanors. In any case in which an arrest is made pursuant to this authority for a misdemeanor offense, the Code Enforcement Official will, instead of taking the person arrested before a Z magistrate, follow the procedure prescribed by Chapter 5C (commencing with Section 853.6) of Title 3 of Part 2 of the California Penal Code, unless the arrested person demands to be taken before a magistrate; provided, that nothing herein shall prevent a peace officer from exercising his or her authority not to release an arrested person pursuant to the provisions of Penal Code Section 853.6(C) or any other provisions of law. The provisions of such Chapter 5C shall thereafter apply with reference to any proceeding based upon the issuance of a citation pursuant to this authority. 1.40.050 Provisions of Law Relating to Infractions. Except as otherwise provided by law, all provisions of law relating to misdemeanors shall apply to infractions, including but not limited to powers of peace officers, jurisdiction of courts, periods for commencing action and for bringing a case to trial and burden of proof. 1.40.060 False Arrest or Imprisonment -- Use of Reasonable Force. There shall be no civil liability on the part of and no cause of action shall arise against any person acting pursuant to Section 1.40.020 and within the scope of his authority for false arrest or false imprisonment arising out of any arrest which is lawful or which the arresting officer at the time of such arrest had reasonable cause to believe was lawful. No such officer shall be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. DIVISION 5: Chapter 1.42 is added to the San Rafael Municipal Code to read as follows: Chapter 1.42 JUDICIAL REMEDIES 1.42.010 Criminal Violations -- Misdemeanors and Infractions. It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements of this Code. A violation of any of the provisions or failing to comply with any of the requirements of this Code, may be charged and prosecuted as either an infraction or misdemeanor, except where otherwise specifically provided. Except as otherwise specifically provided, any person convicted of an infraction is punishable by a fine not exceeding five hundred dollars ($500.00), and any person convicted of a misdemeanor is punishable by a fine not exceeding five hundred dollars ($500.00), or z imprisonment in the Marin County Jail for a period of not more than six months, or by both such fine and imprisonment. Each separate day or any portion thereof on which a violation occurs, or is committed, continued, or permitted, shall be deemed to constitute a separate offense punishable as herein provided. 1.42.020 Civil Actions -- Iniunction, Civil Penalties and Administrative Costs. In addition to all other remedies, the City may bring a civil action to enforce the provisions of this Code, in which a Court may impose the following remedies: A. An injunction; B. Civil penalties in an amount not to exceed Five Hundred Dollars ($500.00) per violation for each day, payable to the City, against any person who commits, continues, operates, allows or maintains any violation of any provision of this Code; C. Reimbursement of City administrative and abatement costs, including but not limited to investigative costs incurred in the enforcement of the provisions of this Code; and D. Award of attorneys' fees, where the City has elected at the initiation of the action to seek the recovery of such fees, in which case the prevailing party in such action shall be entitled to an award of attorneys' fees in an amount which shall not exceed the reasonable attorneys' fees incurred by the City. 1.42.030 Judicial Abatement. Pursuant to California Government Code Section 38773, the City has authority to judicially abate public nuisances by filing criminal or civil actions. The City also has the authority under State law to make the expense of abatement of the nuisance a special assessment, or a lien against the property on which it is maintained and a personal obligation against the property owner, in accordance with California Government Code Section 38773.1 or 38773.5. 1.42.040 Treble Damages f9r Subseouent Abatement Judgments. Pursuant to California Government Code Section 18773.7, upon the entry of a second or subsequent civil or criminal judgment within a two-year period that finds an owner of property responsible for a condition that may be abated in accordance with California Government Code Section 38773.5, a court may order the owner to pay treble the costs of abatement. These costs shall not include conditions abated pursuant to California Health and Safety Code Section 17980. 7 r - DIVISION 6: Chapter 1.44 is added to the San Rafael Municipal Code to read as follows: Chanter 1.44 ADMINISTRATIVE CITATIONS 1.44.010 Aunlicability. This Chapter provides for administrative citations 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 or other public nuisances. 1.44.020 Administrative Citation and Pre -Citation Notice. A. Whenever a Code Enforcement Official charged with the enforcement of any provision of this Code determines that a violation of that provision has occurred, the Code Enforcement Official shall have the authority to issue an administrative citation to any person responsible for the violation, subject to the limitations contained in Subsection C hereafter.. 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. The section of this Code violated and a description of the violation; 4. The amount of the fine for the code violation; 5. A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid; 6. An order prohibiting the continuation or repeated occurrence of the code violation described in the administrative citation; 7. A description of the administrative citation review process, including the time within which the administrative citation may be contested and the place from which a request for hearing form to contest the administrative citation may be obtained; and 8. The name, signature and department of the citing Code Enforcement Official. C. Prior to issuing an administrative citation for a continuing violation of this Code pertaining to building, plumbing, electrical, or other similar structural or zoning issues, that do not create an immediate danger to health or safety, the Code Enforcement Official shall serve a Pre -Citation Notice on the person responsible for the violation containing the following information: 1. The date the violation was observed; 2. The address or a definite description of the location where the violation was observed; 3. The section of this Code violated and a description of the violation; 4. The compliance date by which the violation shall be corrected or otherwise remedied, which shall be no less than fifteen (15) days and no more than sixty (60) days from the date the Pre -Citation Notice is given, as determined to be reasonable by the Code Enforcement Official; 8 5. A statement that if the violation is not corrected by the specified compliance date, that an administrative citation will be issued which imposes a fine, for the amount of which will be specified; and 6. The name, signature and department of the Code Enforcement Official issuing the Pre -Citation Notice. 1.44.030 Amount of Fines. A. The amounts of the fines for code violations imposed pursuant to this Chapter shall be set forth in a schedule of fines established by resolution of the City Council. B. The schedule of fines shall specify any increased fines for repeat violations of the same code provision by the same person within thirty-six (36) months from the date of an administrative citation. C. The schedule of fines shall specify the amount of any late payment charges imposed for the payment of a fine after its due date. 1.44.040 Pavment of the Fine. A. The fine shall be paid to the City within thirty (30) days from the date of the administrative citation. B. Any administrative citation fine paid pursuant to subsection A. shall be refunded in accordance with Section 1.44. 100 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. C. Payment of a fine under this Chapter shall not excuse or discharge any continuation or repeated occurrence of the code violation that is the subject of the administrative citation. 1.44.050 Hearing Reauest. A. Any recipient of an administrative citation may contest that there was a violation of this Code, or that he or she is the responsible party, by completing a request for hearing form and returning it to the Director of Administrative Services within thirty (30) days from the date of the administrative citation, together with an advance deposit of the fine, except where an advance deposit hardship waiver has been obtained in accordance with procedures adopted by the Director of Administrative Services. B. A request for hearing form may be obtained from the department specified on the administrative citation. 9 C. The person requesting the hearing shall be notified of the time and place set for the hearing at least ten (10) days prior to the date of the hearing. 1.44.060 Administrative Hearing Officer. The City Manager shall designate Administrative Hearing Officers who shall conduct any hearings on contests to administrative citations. The qualifications for the Administrative Hearing Officer shall be designated in the Procedures Manual. 1.44.070 Hearing Procedure. A. No hearing to contest an administrative citation before an Administrative Hearing Officer shall be held unless the fine has been deposited in advance in accordance with Section 1.44.050 or an advance deposit hardship waiver has been obtained in accordance with procedures adopted by the Director of Administrative Services. B. A hearing before the Administrative Hearing Officer shall be set for a date that is not less than fifteen (15) days and not more than sixty (60) days from the date that the request for hearing is filed in accordance with the provisions of this Chapter. C. At the hearing, the party contesting the administrative citation, and the Code Enforcement Official, shall be given the opportunity to testify and to present evidence concerning the administrative citation. 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 report submitted by the Code Enforcement Official to the Administrative Hearing Officer shall constitute prima facie evidence of the respective facts contained in those documents. F. The Administrative Hearing Officer may continue the hearing for good cause, and request additional information from the Code Enforcement Official or the recipient of the administrative citation prior to issuing a written decision, provided that the hearing shall not be continued for more than fifteen (15) days. 1.44.080 Administrative Hearing Officer's Decision. A. After considering all of the testimony and evidence submitted at the hearing, and within fifteen (15) days after the conclusion of the hearing, the Administrative Hearing Officer shall issue a written decision to uphold or cancel the administrative citation and shall list in the decision the reasons for that decision. The decision of the Administrative Hearing Officer shall 10 be final. The Administrative Hearing Officer's decision shall include a statement that the recipient of the administrative citation has appeal rights. B. The Administrative Hearing Officer's decision shall include a statement that the person who received the administrative citation may contest the decision by filing a Notice of Appeal in accordance with the timelines and procedures specified in Government Code Section 53069.4. C. If the Administrative 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. D. If the Administrative Hearing Officer determines that the administrative citation should be upheld and the fine has not been deposited pursuant to an advance deposit hardship waiver, the Administrative Hearing Officer shall set forth in the decision a schedule for payment of the fine, which shall not extend more than one hundred and eighty (180) days from the date of the decision. E. If the Administrative 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 at the average rate earned on the City's investment portfolio for the period of time that the fine amount was held by the City. F. The recipient of the administrative citation shall be served with a copy of the Administrative Hearing Officer's written decision. 1.44.090 Late Pavment Char es. 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. 1.44.100 Recovery of Administrative Citation Fines and Costs. The City may collect any past due administrative citation fine or late payment charge by use of all available legal means. The City also may recover its collection costs, and reasonable attorney's fees, in any civil action brought to collect administrative citation fines and late payment charges. 1.44.110 Right to Judicial Review. Any person aggrieved by the decision of an Administrative Hearing Officer on an administrative citation may obtain review of the decision by filing a Notice of Appeal with the 11 Marin County Courts in accordance with the timelines and provisions set forth in California Government Code Section 53069.4. 1.44.120 Notices. A. The Administrative Citation, Pre -Citation Notice, Administrative Hearing Officer Decision, and all notices required to be given by this Chapter shall be served on the responsible party in accordance with the provisions of Section 1.08.060 of this Code. B. Failure to receive any notice specified in this Chapter does not affect the validity of proceedings conducted hereunder. DIVISION 7: Chapter 1.46 is added to the San Rafael Municipal Code to read as follows: Chanter 1.46 ADMINISTRATIVE ORDERS 1.46.010 Amlicability. 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, including any codes adopted by reference, or other public nuisance. 1.46.030 Notice and Order. A. Whenever a Code Enforcement Official determines that a violation of this Code, including any codes adopted by reference, or any other public nuisance, is occurring or exists, the Official may issue a written Notice and Order to the person or persons responsible for the code violation or other public nuisance. B. A Notice and Order issued pursuant to this Chapter shall contain the following information: 1. The date and location of the code violation or public nuisance. 2. A description of the violation or public nuisance, with reference to the applicable sections of this Code, and the sections of any code adopted by reference. 3. The actions required to correct the violation or abate the public nuisance, and the date by which compliance shall be achieved. 4. A statement that if compliance is not achieved by the compliance date, that administrative civil penalties and administrative costs, as well as the costs of actual abatement by the City, may be imposed on the Responsible Person, and collected judicially, or by special assessment or tax collection, as provided in this Chapter. 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. Such other information as may be required by any code adopted by reference, where applicable. 12 1.46.040 Method of Service. A. The Notice and Order and any other notices required by this Chapter shall be served as provided in Section 1.08.060 of this Code, and the requirements of any codes adopted by reference, where applicable. B. Where real property is involved, the Notice and Order and all other notices required by this Code shall be mailed to the record owner of the property at the address as shown on the last equalized County assessment roll, and also shall be conspicuously posted at the property which is the subject of the Notice and Order. C. 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. 1.46.050 Compliance with Notice and Order. If the Code Enforcement Official determines that all violations have been corrected or the public nuisance eliminated within the time specified in the Notice and Order, no further action shall be taken. 1.46.060 Non -Compliance with Notice and Order: Hearing.. A. If the Code Enforcement Official determines that full compliance has not been achieved by the compliance date specified in the Notice and Order, the Official may schedule a hearing before an Administrative Hearing Officer. B. A written Notice of Hearing shall be served on the Responsible Person and, where real property is involved, on the record property owner, as provided in Section 1.46.040. 1.46.070 Notice of Hearing. A. Every Notice of Hearing on a Notice and Order shall contain the date, time, and place at which the hearing shall be conducted by the Administrative Hearing Officer. The Notice of Hearing shall state that the purpose of the hearing will be determination on the existence of the code violations or other public nuisance described in the Notice and Order, on the compliance with the Notice and Order, and on the adoption of an Administrative Order, including imposition of civil penalties and administrative costs pursuant to this Chapter. The Notice and Order shall be attached to the Notice of Hearing. B. The hearing shall be set for a date not less than fifteen (15) days nor more than sixty (60) days from the date of service of the Notice of Hearing unless the Code Enforcement Official determines that the matter is urgent or that good cause exists for an extension of time. 13 C. This hearing serves to provide the full opportunity of a person subject to a Notice and Order to object to the determination that a code violation has occurred and/or that the violation has continued to exist or that a public nuisance exists. If any person subject to a Notice and Order, pursuant to this Chapter, fails to appear at this hearing, such non-appearance shall constitute a failure to exhaust administrative remedies. 1.46.080 Hearing -- Findings. Decision. and Administrative Order. A. At the place and time set forth in the Notice of Hearing, the Administrative Hearing Officer shall conduct a hearing concerning the code violation, and/or other public nuisance described in the Notice and Order issued pursuant to Section 1.46.030. B. The Administrative Hearing Officer shall consider any written or oral evidence, consistent with any rules and procedures adopted by the City Manager, regarding the violation and/or public nuisance described in the Notice and Order, and compliance therewith, by the Responsible Person and/or by the record property owner. C. Within a reasonable time, but not more than thirty (30) days following the conclusion of the hearing, the Administrative Hearing Officer shall issue a written Decision containing factual findings and determinations referenced by supporting evidence, regarding: 1. The existence of each code violation and/or public nuisance described in the Notice and Order. 2. The failure of the Responsible Person and/or record property owner to take corrective action within the time period required in the Notice and Order. D. If the Administrative Hearing Officer finds by a preponderance of the evidence that a code violation and/or a public nuisance has occurred, and that the code violation and/or other public nuisance was not corrected within the time period specified in the Notice and Order, the Administrative Hearing Officer's Decision shall include an administrative order as specified in Section 1.46.090. E. The Administrative Hearing Officer shall submit the Decision to the City Clerk, and serve a copy on the record property owner or other Responsible Party as provided in Code of Civil Procedure Section 1094.6(b). F. The Administrative Hearing Officer's Decision shall include a notice to the record property owner or other Responsible Party that the Decision (and Administrative Order if applicable) is subject to judicial review according to the provisions and time limits set forth in Code of Civil Procedure Section 1094.6. 14 1.46.090 Administrative Order. If the Administrative Hearing Officer determines that a code violation and/or other public nuisance occurred which was not corrected within the time period specified in the Notice and Order, the Administrative Hearing Officer's Decision shall include an Administrative Order which shall contain any or all of the following: A. An order for the record property owner or other Responsible Person to correct or to abate the code violation and/or other public nuisance, including a compliance date for completion of same, if compliance has not been achieved by the date of the hearing. B. An order authorizing the Code Enforcement Official to correct or to abate the code violation or other public nuisance by use of City employees or a City contractor, and to enter upon the private property where such violation or other public nuisance exists, for purposes of correcting and abating same, if the record property owner or other Responsible Person fails to do so by the compliance date. C. Administrative civil penalties as provided in Section 1.46.100. D. Administrative costs as provided in Section 1.46.110. 1.46.100 Administrative Civil Penalties. A. The Administrative Hearing Officer may impose administrative civil penalties for the violation of any provision of this Code, or the existence of a public nuisance, in an amount not to exceed a maximum of Five Hundred Dollars ($500.00) per day for each ongoing code violation, or other public nuisance, except that the total administrative penalty shall not exceed One Hundred Thousand Dollars ($100,000.00), exclusive of administrative costs, interest and restitution for compliance re -inspections, for any related series of violations or conditions constituting a public nuisance. B. In determining the amount of the administrative penalty, the Administrative Hearing Officer may take any or all of the following factors into consideration: 1. The duration of the code violation and/or the public nuisance; 2. The frequency, recurrence and number of code violations, and/or public nuisance conditions related or unrelated, by the same record property owner or other Responsible Person; 3. The seriousness of the violation; 4. The good faith efforts of the record property owner or other Responsible Person to come into compliance; 5. The economic impact of the penalty on the record property owner or other Responsible Person; 6. The impact of the code violation on the community and/or general public; 7. Such other factors as justice may require. 15 C. Administrative civil penalties imposed by the Administrative Hearing Officer shall accrue from -the date specified in the Notice and Order and shall cease to accrue on the date the violation and/or other public nuisance is corrected as determined by the Code Enforcement Official or the Administrative Hearing Officer. D. The Administrative Hearing Officer may suspend the imposition of applicable administrative civil penalties for any period of time during which: 1. The record property owner or other Responsible Person has filed for necessary permits. 2. Such permits are required to achieve compliance. 3. Such permit applications are actively pending before the City, State or other appropriate governmental agency. E. Administrative civil penalties assessed by the Administrative Hearing Officer shall be due by the date specified in the Administrative Order, which shall be no later than ninety (90) days from the date of such Administrative Order. F. Administrative civil penalties assessed by the Administrative Hearing Officer are a debt owed to the City and, in addition to all other means of enforcement, if the code violation and/or other public nuisance 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 code violation or other public nuisance is not corrected as specified in the Administrative Hearing Officer's Administrative Order, administrative penalties shall continue to accrue on a daily basis until the violation and/or other public nuisance is corrected, subject to the maximum amount set forth in Section 1.46. 100 A., above. 1.46.110 Administrative Costs. A. The Administrative Hearing Officer shall assess administrative costs against the record property owner or other Responsible Person when such Officer finds that a violation and/or public nuisance has occurred and that compliance has not been achieved by the compliance date specified in the Notice and Order. B. The administrative costs may include any and all costs incurred by the City in connection with the matter before the Administrative Hearing Officer including, but not limited to, the costs for the Administrative Hearing Officer's services, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, costs for all re -inspections necessary to enforce the Notice and Order, and the costs of actual abatement if undertaken by the City. 16 C. Administrative costs assessed by the Administrative Hearing Officer shall be due by the date specified in the Administrative Order, which shall be no later than ninety (90) days from the date of such Administrative Order. 1.46.120 Sunnlemental Hearing. Decision and Administrative Order. Following issuance of an Administrative Hearing Officer's Decision and Administrative Order, the Code Enforcement Official may schedule a supplemental hearing before the same or another Administrative Hearing Officer for the purpose of obtaining a Supplemental Decision and Administrative Order, which may include the confirmation or imposition of administrative civil penalties or administrative costs applicable to continuation of the code violation or public nuisance following the date of the original hearing with respect to a Notice and Order. The supplemental hearing date, Notice of Supplemental Hearing, supplemental hearing procedures, and the contents, submission, and service of the Supplemental Decision and Administrative Order shall be consistent with the provisions of Sections 1.46.040, 1.46.060, 1.46.070, 1.46.080, 1.46.090, 1.46.100, and 1.46.110. 1.46.130 Failure to Comely with Administrative Order. Failure to pay the assessed administrative civil penalties and administrative costs specified in the administrative order of the Hearing Officer may be enforced as: 1. A personal obligation of the violator; and/or 2. If the violation is in connection with real property, a Code Enforcement Assessment Lien upon the real property. The Code Enforcement Assessment Lien shall remain in effect until all of the administrative civil penalties, and administrative costs are paid in full. 1.46.140 Mght of Judicial Review. Any Decision and Administrative Order or Supplemental Decision and Administrative Order of an Administrative Hearing Officer shall be subject to judicial review in the Marin County Courts by filing with the court a petition for writ of mandate pursuant to the provisions and time limits set in Section 1094.6 of the Code of Civil Procedure. 1.46.150 Recovery of Administrative Civil Penalties and Administrative Costs. The City may collect the assessed administrative civil penalties and administrative costs by use of all available means, including by civil action in which the City may recover its reasonable attorneys' fees as provided in Section 1.42.020(D), and by recordation of a Code Enforcement Assessment Lien and tax collection pursuant to Section 1.46.160. 17 1.46.160 Code Enforcement Assessment Lien; Tax Collection. A. Whenever any administrative civil penalties and/or administrative costs imposed in an Administrative Hearing Officer's Decision and Administrative Order or Supplemental Decision and Administrative Order have not been paid in full when due, and a timely writ of mandate has not been filed or has been filed but not been successful, the amounts owing may constitute a Code Enforcement Assessment Lien and special assessment against the real property on which the code violation or other public nuisance occurred. B. The City Clerk may cause to be recorded in the County Recorder's Office a Notice of Code Enforcement Assessment Lien against the subject real property. Such Notice of Code Enforcement Assessment Lien shall specify the amount of the lien, the name of the City of San Rafael on whose behalf the lien is imposed, the street address, legal description, and assessor's parcel number of the property on which the lien is imposed, the name and address of the record property owner, and the date of the Administrative Hearing Officer's Decision and Administrative Order to which the lien relates. Upon recordation of such Code Enforcement Assessment Lien, it shall attach as a lien against such real property, and shall have the same effect and priority as recordation of an abstract of judgment. C. In addition to the foregoing, the City Clerk may file a certified copy of the Notice of Code Enforcement Assessment Lien in the Office of the County Treasurer -Tax Collector, whereupon it shall be the duty of the County Treasurer -Tax Collector to add the unpaid amount as a special assessment to the next regular tax bills levied against the property for municipal purposes. Thereafter the amounts shall 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 under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes. D. Upon receiving a report from the Director of Administrative Services that payment in full has been received by the City of the amount specified in the Notice of Code Enforcement Assessment Lien, the City Clerk shall either record a Notice of Satisfaction of the Code Enforcement Assessment Lien with the County Recorder, and file a certified copy of same with the County Treasurer -Tax Collector, or provide the property owner or financial institution with a Notice of Satisfaction so that they may record it with the Office of County Recorder and 18 file it with the County Treasurer -Tax Collector. Recordation of such Notice of Satisfaction shall cancel the City's Code Enforcement Lien and assessment against the property. DIVISION 8: If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this Ordinance. The Council hereby declares that it would have adopted the Ordinance and each section, subsection, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsection, sentence, clause or phrase be declared invalid. DIVISION 9: A summary of this Ordinance shall be published and a certified copy of the full text of this Ordinance shall be posted in the office of the City Clerk at least five (5) days prior to the Council meeting at which it is adopted. This Ordinance shall be in full force and effect thirty (30) days after its passage, and the summary of this Ordinance shall be published within fifteen (15) days after the adoption, together with the names of the Councilmembers voting for or against the same, in a newspaper of general circulation published and circulated in the City of San Rafael, County of Marin, State of California. Within fifteen (15) days after adoption, the City Clerk shall also post in the office of the City Clerk, a certified copy of the full text of this Ordinance along with the names of those Councilmembers voting for against this Ordinance. 4d_A_1_ BER J. BO, Mayor ATTEST: ��� .� _ JiNNE M. LEON INI, City Clerk The foregoing Ordinance No. 1706 was read and introduced at a Regular Meeting of the City Council of the City of San Rafael, held on the 3rd day of FEBRUARY , 1997, and ordered passed to print by the following vote to wit: AYES: Councilmembers: Cohen, Heller, Miller, Phillips & Mayor Boro NOES: Councilmembers: None ABSENT: Councilmembers: None K and will come up for adoption as an Ordinance of the City of San Rafael at a Regular Meeting of the Council to be held on the 18thday of FEBRUARY , 1997. (1/30/97) &ZM--.--LEONCNI, City Clerk 20