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HomeMy WebLinkAbout1997-10-06 Ordinance 4452ORDINANCE NO. 4452 ORDINANCE OF THE COUNCIL OF THE CITY OF PALO ALTO ESTABLISHING ADMINISTRATIVE PROCEDURES AND PENALTIES FOR VIOLATIONS OF THE PALO ALTO MUNICIPAL CODE AND AMENDING THE PALO ALTO MUNICIPAL CODE The City Council of the City of Palo Alto does ORDAIN as follows: SECTION 1. Chapter 1.12 of Title 1 of the Palo Alto Municipal Code is added to read as follows: CRAPTER 1.12 ADMINISTRAT/VE PENALTIES —CITATIONS 1.12.010 Scope. This Chapter provides for administrative remedies for any violation of this Code, which remedies may be pursued in lieu of any other legal remedy, criminal or civil, which may be pursued by the City to address any violation of this Code. The City Attorney, City Prosecutor, or their assistants, have sole discretion to determine whether a violation will be prosecuted criminally. If a violation is not criminally prosecuted, the City may proceed with administrative proceedings pursuant to this Chapter. 1.12.020 Definitions. The following words and phrases, when used in the context of this Chapter or Chapter 1.16, shall have the following meanings: (a) Administrative citation Schedule --The schedule of fines and late payment charges adopted by the City Council, as referenced in Section 1.12.070. (b) Compliance Order --An order issued pursuant to Section 1.16.030. (c) Directo.--The head of any city department charged with the responsibility for enforcement of any provision of this Code. (d) Enforcement Official --Any person authorized to enforce the provisions of the Palo Alto Municipal Code. (e) Legal Interest --The right to own, possess, or occupy real property, whether through a grant deed, quitclaim deed, lease, rental agreement, license, or other similar instrument. (f) Responsible Person --Any person whom an Enforcement Official or Director determines is responsible for causing or maintaining a violation of this Code. The "responsible person" may be, but is not required to be, a person with a Legal Interest in the real property where the violation occurred. 971009 lac 0051861 • • 1.].2.030 Administrative Citation. Any person violating any section of this Code that is subject to this Chapter may be issued an administrative citation by an Enforcement Official as provided in this Chapter. 1.12.040 Content of Administrative Citation. The administrative citation shall be on a form approved by the City Manager, and shall contain all of the following information: (a) The date and location of the violation and the approximate time the violation occurred. (b) The Code section violated and a description of how the section was violated. and the paid. lati. (c) The amount of the fine imposed for the violation, me within which and the place at which the fine shall be (d) An order prohibiting another occurrence of the Code (e) A description of the administrative citation review process, including the time within which to contest the administrative citation and the place from which to obtain a Request for Hearing Form to contest the administrative citation. The name and signature of the citing Enforcement Official. 1.12.050 Procedure for Serving Administrative Citation or Compliance Order. An Enforcement Official may issue an administrative citation to a Responsible Person (or, pursuant to Chapter, 1.16, serve a compliance order) as follows: (a) If the Responsible Person is a corporation, the Enforcement Official shall attempt to locate any one of the following individuals and issue to that individual an administrative citation: the president or other head of the corporation, a vice-president, a secretary or assistant secretary, a treasurer or assistant treasurer, a general manager, or a person authorized by the corporation to receive service of process in a civil action. If the office address of any of the above -listed individuals is known to the City, a copy of the administrative citation also shall be mailed to one of those individuals by certified mail, postage prepaid, return receipt requested. (b) If the Responsible Person is a business other than a corporation, the Enforcement Official shall attempt to locate the business owner and issue the business owner an administrative citation. If the Enforcement Official can locate only the manager of the business, the administrative citation may be given to the manager of the business. If the address of the business is known, a copy of the administrative citation also shall be mailed to that address to the attention of the business owner or manager. The 2 971009 Ise 0031861 mailing shall be sent by certified mail, postage prepaid, return receipt requested. (c) If the Responsible Person is an individual, the Enforcement Official shall attempt to locate the individual and issue the individual an administrative citation. (d) If the Enforcement Official is unable to locate a Responsible Person for personal service pursuant to paragraphs (a), (b), or (c) of this Section. 1.12.050, the administrative citation shall be mailed to the Responsible Person by certified mail, postage prepaid, return receipt requested. (e) In any case where, pursuant to this Section, the administrative citation is required be sent by certified mail, postage prepaid, return receipt requested, the same may also simultaneously be sent by regular mail. If the certified mail receipt is returned unsigned, then service shall be deemed effective pursuant to regular mail, provided the administrative citation that was sent by regular mail is not returned by the postal service as undeliverable. (f) The Enforcement Official shall attempt to obtain on the administrative citation the signature of the Responsible Person, or in cases in which the Responsible Person is a corporation or business, the signature of the person served with the administrative citation. If a Responsible Person or person served refuses or fails to sign the administrative citation, the failure or refusal to sign- shall not affect the validity of the citation or of subsequent. proceedings. (g) If the Responsible Person has a Legal Interest in the real property where the violation occurred, and the Enforcement Official does not succeed in serving the Responsible Person personally, or by certified or regular mail, the Enforcement Official shall post the administrative citation on the real property where the violation occurred; such posting shall be deemed effective service. 1.12.060 Effective Date of Service. Any notice or decision required by this Chapter 1.12 or Chapter 1.16 to be served on the other party shall be deemed served effective upon the date of personal delivery or, in the case of mailing, on the date of delivery or attempted delivery as shown on the U.S. Postal Service certified mail return receipt. If regular mail is used pursuant to Section 1.12.050(e), the notice shall be deemed effective three days after placement in the mail, postage prepaid. If posting is used pursuant to Section 1.12.050(g), the notice shall be deemed effective one day after posting. 1.12.070 Administrative Fine. The fine imposed pursuant to this Chapter for a particular violation, and for any subsequent violation of the same code section, shall be in the amount set forth in the Administrative Citation Schedule established by resolution of the City Council. The Administrative Citation 971009 lac 0051261 3 Schedule shall specify the amount of any late payment charges imposed for failure to timely pay the fine. 1.12.080 Payment of Administrative line. The administrative fine shall be paid to the City within thirty (30) days from the date of service of the administrative citation. 1.12.090 Request for Administrative Bearing. Any Responsible Person to whom an administrative citation is issued may contest the citation no later than thirty (30) days from the date of service of the administrative citation by (1) completing a Request for Hearing Form and returning it to the City; and (2) either depositing the administrative fine with the City or providing notice that a request for an Advance Deposit Hardship Waiver has been filed pursuant to Section 1.12.100. A Request for Hearing Form may be obtained from the department specified on the administrative citation. The person requesting the hearing shall be notified by certified mail, return receipt, of the time and place of the hearing at least ten (10) days before the date of the hearing. Any documentation, other than the administrative citation, which the Enforcement Official has submitted or will submit to the Hearing Officer shall be served on the person requesting the hearing by certified mail, return receipt, at least five (5) days before the date of the hearing. 1.12.100 Advance Deposit Hardship Waiver. Any Responsible Person who requests a hearing to contest an administrative citation and who is financially unable to deposit the administrative fine as required in Section 1.12.090 may file a request for an Advance Deposit Hardship Waiver. The request shall be filed with the Department of Finance on an Advance Deposit Hardship Waiver application form, available from the department, no later than thirty (30) days after service of the administrative citation. The Director of Finance may issue an Advance Deposit Hardship Waiver only if the person requesting the waiver submits to the Director a sworn affidavit, together with any supporting documents, demonstrating to the satisfaction of the Director the person's financial inability to deposit with the City the full amount of the fine in advance of the hearing. The Director shall issue a written decision specifying the reasons for issuing or not issuing the waiver. The decision shall be served upon the person requesting the waiver by certified mail return receipt. If the Director determines that the waiver is not warranted, the person shall remit the full amount of the fine to the City within ten (10) days of receipt of the Director's written decision. 1.12.110 Time for Administrative Hearing. Only after a Request for Hearing Form is filed, and the Responsible Person requesting the hearing has either deposited the administrative fine in full or obtained an Advance Deposit Hardship Waiver, shall the City set the date and time for the administrative hearing. The hearing shall be set for a date not leas than fifteen (15) days nor more than (60) days after the Request for Hearing Form is filed, and the administrative fine is deposited with the City or an Advance Deposit Hardship Waiver is issued. The City shall send notice of the date, time, and place of the hearing to the person 9710091st 0031861 4 requesting the hearing by certified mail, return receipt requested, at least ten (10) days before the date of the hearing. 1.12.120 Request for Continuance of Rearing. The Responsible Person requesting a hearing may request one continuance, but in no event may the hearing begin later than ninety (90) days after the Request for Hearing Form is filed, and the administrative fine is deposited with the City or an Advance Deposit Hardship Waiver is issued. 1.12.130 Appointment of Administrative Hearing Officer. The Director of the department through which the administrative citation or compliance order was issued, or his or her designee, shall select an Administrative Hearing Officer. The Administrative Hearing Officer may be, without limitation, a member of the staff of the department through which the administrative citation or compliance order was issued. In no event, however, shall the Enforcement Official who issued the administrative citation or compliance order be the Administrative Hearing Officer, 1.12.140 Procedures at Administrative Hearing. Administrative hearings are informal, and formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of his or her case and to cross- examine witnesses. The City bears the burden of proof at an administrative hearing to establish a violation of the City Code. The administrative citation, compliance order, and any additional reports submitted by the Enforcement Official shall constitute prima facie evidence of the facts contained in those documents. The Administrative Hearing Officer must use preponderance of evidence as the standard of evidence in deciding the issues. 1.12.150 Failure to Attend Administrative Rearing. If the Responsible Person fails to attend the scheduled hearing, the hearing will proceed without the Responsible Person, and he or she will be deemed to have waived his or her right to an administrative hearing. 1.12.160 Decision of Administrative Hearing Officer. No later than thirty (30) days after the date on which the administrative hearing concludes, the Administrative Hearing Officer shall issue a written decision ("Administrative Order") to uphold or cancel the administrative citation. The Administrative Hearing Officer shall set forth the reasons for the decision. The Administrative Order shall be served upon the Responsible Person by personal delivery or Certified Mail, Return Receipt Requested. If the Administrative Hearing Officer upholds the administrative citation, the City shall retain the fine deposited by the Responsible Person. If the Administrative Hearing Officer upholds the administrative citation and the fine has not been deposited pursuant to an Advance Deposit Hardship Waiver, the Administrative Hearing Officer shall specify in the decision a payment schedule for the fine. If the Administrative Hearing Officer cancels the administrative citation, any fine deposited with the City shall be promptly refunded, together with interest at the average rate earned on the City's portfolio for the period of time that the City 5 971009 lac 0031861 1 held the fine (as determined by the City Treasurer). The Administrative Hearing Officer's written decision is final, and shall notify the Responsible Person of his right to appeal as provided in Section 1.12.190. 1.12.170 Late Payment Charges. Any person who fails to pay to the City on or before the due date any administrative fine imposed pursuant to the provisions of this Chapter, shall be liable for the payment of any applicable late payment charges set forth in the Administrative Citation Schedule. 1.12.180 Collection of Administrative Fine. The City may collect any past -due administrative fine or late payment charges by use of any available legal means. 1.12.190 Appeal of Decision of Administrative Hearing Officer. Within 20 days after service of the decision of the Administrative Hearing Officer upon the Responsible Person, he or she may seek review of the decision by filing a notice of appeal with the municipal court. The Responsible Person shall serve upon the City Clerk either in person or by first class mail a copy of the notice of appeal. If the Responsible Person fails to timely file a notice of appeal, the Administrative Hearing Officer's decision shall be deemed confirmed. 1.?2,200 Failure to Comply with Administrative Order or Pay Administrative Fine. Failure to comply with an Administrative Order after it becomes final, or to pay an Administrative Fine or late payment charges, is a misdemeanor. Filing a criminal misdemeanor action does not preclude the City from using any other legal remedy available to gain compliance with the Administrative Order, including using any other legal remedy available to collect any past -due administrative fine or late payment charges." SECTION 2. Chapter 1.16 of Title 1 of the Palo Alto Municipal Code is added to read as follows: CHAPTER 1.16 ADMINISTRATIVE PENALTIES —CONTINUING VIOLATIONS --COMPLIANCE ORDERS 1.16.010 Scope. This Chapter provides for administrative remedies for any continuing violation of this Code. Administrative remedies may be pursued in lieu of any other legal remedy, criminal or civil, which may be pursued by the City to address any violation of this Code. The City Attorney, City Prosecutor, or their assistants, have sole discretion to determine whether a violation will be prosecuted criminally. If a violation is not criminally prosecuted, the City may proceed with administrative proceedings pursuant to this Chapter. 1.16.020 Applicability of Chapter 1.12. The provisions of Sections 1.12.020, 1.12.050, 1.12.060, 1.12.130, 1.12.140, 1.12.150, 1.12.170, 1.12.180, 1.12.190, and 1.12.200 shall apply to this Chapter 1.16. 9-71009 lac 0051861 1.16.030 Compliance Order. Whenever a Director determines that there exists a continuing violation of any provision of this Code, the Director may issue or cause to be issued a written compliance order to any Responsible Person. The compliance order shall be served pursuant to the procedures set forth in Section 1.12.050. 1.16.040 Content of Compliance Order. A compliance order shall be on a form approved by the City Manager, and shall contain all of the following information: (a) The date (s) and location of the violation and the approximate time(s) the violation occurred. (b) The City Code section violated and a description of how the section was violated. (c) The action required to correct the violation and the date by which such action must be completed. The date for compliance shall not be less than 30 days from the date the compliance order is served. (d) The consequences of failing to correct the violation, including a description of the administrative hearing procedure and appeal process. (e) The time period after which administrative penalties to accrue if there is no compliance with the order. (f) The amount of penalty that will be imposed if there no compliance with the order. (g) The name and signature of the citing Director. 1.16.050. Compliance Order Satisfied. If the Director determines that all violations specified in the compliance order have been corrected within the time set forth in the order, no further action shall be taken against the Responsible Person regarding the violation(s). 1.16.060 Failure to Comply --Administrative Hearing. If the Responsible Person fails to fully comply with the compliance order within the time specified therein, the City shall conduct an administrative hearing regarding the violation(s). The Director or his or her designee shall cause a written Notice of Hearing to be served on the Responsible Person in the manner applicable pursuant to Section 1.12.050. 1.16.070 Notice of Hearing. The Notice of Hearing shall contain the date, time, and place of the hearing. The hearing shall be set for a date not less than fifteen (15) days nor more than sixty (60) days after the date the Notice of Hearing is served on the Responsible Person. 1.16.080 Request for Continuance of Hearing. The Responsible Person may request one continuance of the hearing, but 7 971009 L* OOS1861 in no event may the hearing begin later than ninety (90) days after service of the Notice of Hearing upon the Responsible Person. 1.16.090 Decision of Administrative Hearing Officer. (a) The Administrative Hearing Officer shall issue a written decision entitled "Administrative Order" no later than thirty (30) days after the date on which the administrative hearing concludes. The Administrative Order shall be served upon the Responsible Person by the applicable method set forth in Section 1.12.050. The Administrative Hearing Officer shall make findings within the Administrative Order regarding the existence of the violation(s) specified in the compliance order, and regarding whether the Responsible Person took the required corrective action within the time period set forth in the compliance order. If the Administrative Hearing Officer concludes that the violation continues to exist, the Administrative Order shall set forth a schedule for correction. If the Administrative Hearing Officer determines that the violation(s) set forth in the compliance order did not exist, or that the violation(s) was timely corrected, all proceedings regarding the violation(s) shall immediately cease. (b) The Administrative Order shall impose administrative fines as provided in Section 1.16.100, and administrative costs as provided in Section 1.15.110. (c) The Administrative Order shall become final on the date of service, and shall notify the Responsible Person of his right to appeal as provided in Section 1.16.190. The Administrative Order shall set a deadline for compliance with its terms in the event that the Responsible Person fails to file an appeal. 1.16.100 Administrative Fines. (a) The Administrative Hearing Officer shall assess against the Responsible Person an administrative fine for any violation found to exist, or for any violation which was not timely corrected. The fine shall be in the amount set forth in the Administrative Citation Schedule for the particular violation. Because a new and separate offense occurs under Section 1.08.010(c) each day during which a violation of any provision or requirement of this Code is committed, the Administrative Hearing Officer may further assess a fine in the amount set forth in the Administrative Citation Schedule for each day from the date the compliance order was issued until the date the violation is corrected as determined by the Director or his or her designee. The Administrative Order shall specify the date by which the fine must be paid. (b) Administrative fines assessed by the Administrative Hearing Officer are a debt owed to the City. (c) If the Responsible Person provides written notice to the Director or his or her designee that the violation has been corrected, and if the Director or his or her designee finds compliance, the Director or his or her designee shall deem the date 971009 lac 0051851 the written notice was postmarked or personally delivered to the Direct-. or his or her designee to be the date the violation was corrected. If, however, a final inspection confirmed compliance before mailing or personal delivery of a written notice, or if no written notice is provided, the date of final inspection shall be deemed to be the date the violation was corrected. 1.16.110 Administrative Costs. The Administrative Hearing Officer shall assess against the Responsible Person administrative costs for any violation found to exist, or for any violation which was not timely corrected. The administrative costs include any and all costs incurred by the City in connection with prosecuting the violation, including but not limited to costs of investigation, staffing costs in preparation for the administrative hearing and for the hearing itself. and costs for all inspections necessary to enforce the compliance order and the Administrative Order. The Administrative Order shall specify the date by which the costs must be paid to the City.' SECTION 3. The City Clerk shall cause this Ordinance to be published in a newspaper of general circulation printed and published in the county and circulated in the City within fifteen (15) days after its passage, in accordance with Section 36933 of the Government Code, shall certify to the adoption and publication of this Ordinance, and shall cause this Ordinance and its certification, together with proof of publication, to be entered in the Book of Ordinances of the Council of this City. SECTION 4. This Ordinance shall go into effect and be in full force and effect at 12:01 a.m. on the thirty-first (31st) day after its passage: INTRODUCED: SEPTEMBER 22, 1997 PASSED: OCTOBER 6, 1997 AYES: ANDERSEN, EAKINS, FAZZINO, H1)BER, KNISS, MCCOWN, ROSENBA1.TA4, SCHNEIDER, WHEELER NOES: ABSTENTIONS: ABSENT: At"orney Director of - Works 9 971009 lac 0051861