HomeMy WebLinkAboutMINUTES - 03072000 - C.171 TO: BOARD 00 SUPERVISORS contra
FROM: Victor J.Westman, County' Counsel --'='��� costa
By: Diana J. Silver, Deputy County Counsel County
DATE: March 7",2000
SUBJECT: Proposed Administrative Penalty Ordinance
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS: Accept revised dram of administrative penalty ordinance and refer to
Internal Operations Committee for review and adoption recommendation.
FISCAL IMPACT: None known at this time. If some form of an ordinance establishing an
administrative hearing system for violations of the County Ordinance Code is ultimately
adopted, there will be concurrent administrative costs to establish and operate the administrative
hearing process. Some or all of these costs may be recovered where administrative penalties are
collected.
BACKGROUND/REASONS FOR RECOMMENDATIONS: County Counsel and involved
County staff have been considering the availability of an additional remedy for code enforcement
made possible by the adoption of Government Code section 53069.4, which allows The County
to establish a process for imposing fines at the administrative level for violations of County
Code. An analysis of the legislation is attached(see the attached 3-25-97 memo).
In this regard, County Counsel drafted a proposed ordinance and circulated it to several County
departments. This office has met with involved staff and as a result, has made several revisions
to the original proposed ordinance draft. This office is now bringing its latest revised version of
the ordinance to the Board's attention for consideration and possible referral to the Internal
Operations Committee for recommendation or other action deemed appropriate by the Board.
County Counsel recommends adoption consideration of an ordinance to allow County staffs the
option of pursuing Gov. C. sec. 53069.4 administrative penalties.
CONTINUED ON ATTACHMENT: YES SIGNATURE:
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD On March 7, 2000 APPROVED AS
RECOMMENDED. xx OTHER
VOTE OF SUPERVISORS
x_UNANIMOUS I HEREBY CERTIFY THAT THIS IS A TRUE AND
(ABSENT _ _ _ _ ) CORRECT COPY OF AN ACTION TAKEN AND
ENTERED N THE MINUTES OF THE BOARD OF
AYES: SUPERVISORS ON THE DATE SHOWN.
ABSENT: ABSTAIN: ATTESTED March 7. 2000
PHIL BATCHELOR, CLERK OF THE BOARD
Orig. Co. Counsel, 335-1317 OF SUPERVISORS AND COUNTY
ADMINIST ATOR
cc: CAO: Attn: John Gregory
BID: Attn: Carlos Baltodano BY , DEPUTY
CDD:Attn: Dennis Barry
I:WOANNIpenord.wpd
P/W: Attn: Mitch Avalon
Env. Health: Attn: W. Walker, MD
Office of the County Counsel Contra Costa County
651 Pine Street, 9th Floor Phone: (925)335-1800
Martinez, CA 94553 Fax: (925)646-1078
Date: February 15, 2090
To: Phil Batchelor, County Administrator
From: Victor J. Westman, County Counsel
By: Diana J. Silver,Deputy County C u el
Re: Proposed Administrative Penalty Ordinance
We are enclosing a Board Order(with attachment) and proposed administrative
penalty ordinance which we are recommending be referred to the Internal Operations Committee
for their review and consideration. Please place it on the Board of Supervisors' agenda. We are
also attaching a"greenie"for your convenience.
Please feel free to call to discuss this item. Thank you for your assistance.
DJS/ds
enclosure
cc: County Administrator's Office
Attn: John Gregory
Carlos Baltadono, Director
Building Inspection Dept. .
Dennis Barry,Director "UN; t",O5"A WUNrl g
Community Development Dept. �m
Public Works Department
Attn: Mitch Avalon
I
W. Walker, MD,Director
Environmental Health
I:UOANNIadmpen.ord.mem.wpd
Ord 97-017 Page 1 '!°
FILE COPY
COUNTY COUNSELS OFFICE
CONTRA COSTA COUNTY
MARTINEZ, CALIFORNIA
Date: March 25, 1997
To: Val Alexeef, Director, GMEDA
From: Victor J. Westman, County Counsel
By: Diana J. Silver, Deputy County el
Re: Recent statutory changes affecting code enforcement:
I-proposed amendment to County's Uniform Nuisance Abatement Ordinance (Gov Code
§25845(c))
II-availability of administrative penalties for violations of cities' and counties
ordinances (Gov Code § 53069.4)
r. Proposed amendment to attorneys' fees provision in Uniform Nuisance Abatement
Ordinance
Pursuant to the County's Uniform Public Nuisance Abatement Ordinance (C.O.C. Ord. Code
Chapter 14-6), attorneys' fees, as well as other costs, can be charged to the owner following
abatement of the property (C.C.C. Ord. Code §14-6.426). Effective January 1, 1997, if a county
ordinance provides for the recovery of attorneys' fees in any action, including administrative
proceedings, to abate a nuisance, it must also provide for the recovery of attorneys' fees by the
prevailing party (Gov. Code §25845(c), copy attached). A county's ordinance may provide,
however, that the recovery of attorneys' fees by the prevailing party will be limited.to those
individual actions or proceedings in which the county elects, at the beginning of the particular
administrative proceeding, to seek recovery of its attorneys' fees (Gov. Code §25845(c)).
As our current ordinance contains no such limitation, we recommend that section 14-6.426 of
our ordinance code be amended to provide for such an election by the county in individual and
proceedings. We attach a draft of the proposed amendment for your review.'
'If an administrative penalty ordinance is adopted (as outlined in section II. below), it
should contain a similar provision allowing the county to elect at the beginning of each
proceeding whether to seek recovery of attorneys' fees.
~ Ord 97-017 Page 2
Val Alexeff, Director, GMEDA Page 2
Phil Batchelor, County Administrator
Recent statutory changes
It would be appropriate to amend Contra Costa County Ordinance Code section 72-6.020 to
provide that abatements may be performed pursuant to Chapter 14-6 of the county ordinance code
(Uniform Nuisance Abatement Ordinance), which provides for the collection of abatement costs as
an assessment on the county tax rolls. Currently, section 72-6.020 provides that abatements will be
performed pursuant to Title 25 of the California Code of Regulations, which does not include
placement of abatement costs on the county tax rolls.
It has been brought to our attention that members of the Board of Supervisors have concerns
about the County's ability to recover costs for code enforcement. Currently, the Building
Inspection Department includes its staff time at the rate of $25.00 per hour in its Statement of
Expense submitted to the Board of Supervisors following an abatement performed pursuant to Title
25 of the California Code of Regulations (see 25 Cal Code Regs §70). This office does not know
whether this $25.00 per hour rate reflects actual staff hourly rates.
Staff time costs are also recoverable as administrative costs under the County's Uniform
Nuisance Abatement Ordinance (C.C.C. Ord. Code §14-6.426). We understand staff desires to use
the procedures set forth in Chapter 14-6 because they allow the abatement lien to be collected on
the County's tax rolls (C.C.C. Ord. Code §14-6.436) which may result in a substantially earlier
recovery of abatement costs. We are informed by staff of the Building Inspection Department that
they are in the process of creating notice forms and other documents which follow-the procedures
outlined in Chapter 14-6 and will submit them to this office for review in the near future so that
they may begin implementation of the County's Uniform Nuisance Abatement Ordinance.'
II. Administrative penalties for county ordinance code violations
Pursuant to Government Code §53069.4 (copy attached), and in lieu of directly pursuing
criminal prosecutions (e.g., infraction citations, etc.), abatements, or other remedies available under
the Contra Costa County Ordinance Code, the County may adopt an ordinance providing for the
imposition of administrative penalties for violations of the Contra Costa County Ordinance Code.
The ordinance must set forth the administrative procedures for the imposition, enforcement,
collection and administrative review of such administrative fines or penalties (Gov. Code
§53069.4(a)(1)). When the violations are infractions, as generally specified by our ordinance code
(C.C.C. Ord. Code §14-8.002), the administrative fine or penalty cannot exceed the statutory
'We have received a copy of the Pasadena nuisance abatement ordinance from GMEDA
which is similar to the County's Uniform Nuisance Abatement Ordinance.
Ord 97-017 Page 3y-;7_,
Val Alexeff, Director, G1v1EDA rage 3
Phil Batchelor, County Administrator
Recent statutory changes
maximum allowed for infractions. Our ordinance code sets forth those statutory maximum
amounts: one hundred dollars for the first violation, $200 for the second and $300 for the third and
subsequent violations of the same ordinance within a twelve month period (C.C.C. Ord Code §14-
8.004)).
When the ordinance code violations pertain to zoning or building, plumbing, electrical or
other similar structural issues that do not create an immediate danger to health or safety, the
administrative procedures in the administrative penalty ordinance must provide a reasonable period
of time to correct the situation before fines are imposed (Gov. Code §53069.4(a)(2).
Final administrative decisions by the county pursuant to such an ordinance are appealable to
the municipal court within twenty (20) days after the decision is served (Gov Code §53069.4(b)(1)).
Fines or penalties may be collected pursuant to the administrative procedure set forth in the
ordinance following the court's decision in favor of the county (Gov Code §53069.4(d)). If
provided for in the ordinance, fines or penalties could be collected on the property tax rolls as
currently provided in the County's Uniform Public Nuisance Abatement procedure (C.C.C. Ord.
Code §14-6.436; see generally C.C.C. Ord. Code Chapter 14-6 setting forth the county's nuisance
abatement procedure).
Where counties or cities have adopted an ordinance to provide an administrative procedure for
the imposition of administrative fines or penalties, they generally have made violations of their
ordinance code to be misdemeanors, rather than infractions, in order to levy greater fines. For
example, in Humboldt County, an administrative penalty ordinance has been recently adopted in
which violations of the county code are misdemeanors and now subject to a maximum $10,000
administrative fine. It should be noted that if our county ordinance code were amended to make
code violations misdemeanors (see C.C.C. Ord Code §14-8.002), persons charged with county
ordinance code violations in a criminal prosecution in court would have the rights of other criminal
defendants, e.g. right to jury trial, representation by an attorney, etc. when the county prosecuted
these actions in municipal court. Such cases would be filed and prosecuted by the District
Attorney's Office. If there is no misdemeanor prosecution, however, and enforcement is by means
of an administrative penalty ordinance, the rights of criminal defendants prosecuted in court actions
would not be available but administrative fines could not exceed the amounts allowed for infraction
violations.
Ord 97-017 Page 4Y-76:�-
Val Alexeff, Director, GMEDA Page 4
Phil Batchelor, County Administrator
Recent statutory changes
We look forward to receiving your comments concerning these code enforcement issues at
your earliest convenience and suggest that a meeting be fixed to discuss these matters to avoid any
misunderstandings. Unless it is mutually determined to take some other action, this office intends
to submit ordinance code amendments as discussed in part I of this memorandum to the Board of
Supervisors for its consideration prior to the end of April.
DJS/ds
cc: Dennis Barry, Community Development Dept.
Mickie Perez, Building Inspection Dept.
John Gregory, Administrator's Office
aAadminpen.mem
71
ORDINANCE NO. 2000-
(Administrative Penalties For
Violations of Ordinance Code)
The Contra Costa County board of Supervisors ordains as follows (omitting the parenthetical
footnotes from the official text of the enacted or amended provisions of the County Ordinance
Code). [Govt. C. § 25120]
SECTION I. SUMMARY. This ordinance establishes an additional remedy to enforce County
Code building and zoning regulations by creating an administrative penalty system for Title 7
and Title 8 Code violations as allowed by Government Code section 53069.4
SECTION II. Chapter 14-12 is added to the County Ordinance Code, Division 14,to read:
14-12.002. Imposition of Administrative Penalties. In addition to any other remedy
allowed by this Code or applicable law, any violation of the Title 7 (building regulations)or Title
8 (zoning regulations) of the Contra Costa County Ordinance Code shall be subject to an
administrative fine or penalty, enforcement and collection proceedings, as set forth in this
chapter(including referenced provisions appearing elsewhere in this code) and authorized by
California Government Code section 53069.4. For purposes of this Chapter, "Director" shall
include the Director of the Community Development Department, and the Director of the
Building Inspection Department ("County Building Official"), their designees and any other
county officer so designated by resolution of the board of supervisors. Unless otherwise
specified, "owner" shall include the owner of property upon which a violation of this chapter
exists,the occupant of that property and any other party responsible for the violation. (Ord.
2000 §_.)
14-12.004. Procedures. (a)The Director of the Building Inspection Department or his
or her designee shall be responsible for implementing the procedures set forth in this Chapter
with respect to violations of Title 7 of this Code. The Community Development Director or his
or her designee shall be responsible for implementing the procedures set forth in this Chapter
with respect to violations of Title 8 of this Code. The board of supervisors by resolution may
designate other county officers to have concurrent or sole similar authority for implementation.
(Ord. 2000- §_.)
(b)If the Director determines, after the issuance of a notice to comply, that a violation of
any provision of Title 7 or Title 8 of this Code still exists with respect to any property,the
ORDINANCE NO. 2000- 1
5,
Director may transmit a Notice of Violation to the owner and to a person in possession of the
property by certified mail and posting as set forth in section 14-6.412 or by personal service by a
county employee in the Director's department or by other public officer. The Notice of Violation
shall specify:
(1)The conditions on the property constituting violations of specified County
Ordinance Code sections;
(2)A specified time period not less than ten(10) days from receipt of the Notice
of Violation within which the violation must be corrected and abated;
(3)That, in the event the violation is not abated by the expiration of the specified
time period("effective date of the Notice of Violation"), the owner may be subject to an
administrative fine under this Chapter; and
(4)That the owner may submit in writing, to the Director, any information
relating to a determination of the existence of a violation or the amount of the fine to be imposed.
If the Director determines that an effort is being made to correct the violation,he or she may
grant an additional period of time for correction of the violation.
(c)Notwithstanding(b), above, the Director may require immediate abatement of a
violation pursuant to section 14-6.406 of this Cade, if the violation creates an immediate danger
to the health and safety of persons or property. (Ord. 2000-_§_.)
14-12.006. Amount of Fine General. Any person who violates any provision of
Title 7 or Title 8 of this Code, or any person who owns property upon which such a violation
exists, irrespective of whether that person caused the violation, shall be subject to'an
administrative fine up to the maximum amounts as set forth below. (Ord. 2000-_, § �.)
14-12.008. Amount of Fine--Infraction. If this Code designates the violation as an
infraction, the Director may impose as the administrative fine up,to the maximum fine or penalty
amounts for infractions set forth in subdivision(b) of California Government Code section
25132; the Director may impose the fine if the violation is not abated by the effective date of the
Notice of Violation. (Ord 2000-®, §_.)
14-12.010. Amount of Fine—Other. If this Code does not designate the violation as
an infraction, the Director may impose an administrative fine within the amounts set forth below:
(a) If the violation arises from an unlawful commercial, industrial, rental (residential or
non-residential), owner-occupied residential or similar use or structure on the property,the
Director, in his or her discretion, may impose a fine in one of the following sums:
(1) One hundred dollars($100.00) for the date of transmittal of the Notice of
ORDINANCE NO. 2000- 2
ell 1
Violation, and up to one hundred dollars($100.00) for each calendar day thereafter that the
violation exists on the property through the effective date of the Notice of Violation; or
(2)In the event that the use of a structure in violation may be permitted with an
appropriate permit, up to a maximum of five times the amount of the standard fee for such
permit.
(b)For any other violation,the Director in his or her discretion may impose a fine in one
of the following amounts:
(1) One hundred dollars ($100.00) for the date of transmittal of the Notice of
Violation, and up to one hundred dollars ($100.00) for each calendar day thereafter that the
violation exists on the property through the effective date of the Notice of Violation;
(2) In the event that the use of a structure in violation may be permitted with an
appropriate permit, up to a maximum of five times the amount of the standard fee for the permit.
14-12.012. Determination of Fine; Notice of Determination of Fina; Recordation of
Notice.
(a)The Director shall determine fines in the first instance. In making the determination,
the Director shall take into account the facts and circumstances of the violation, including
without limitation:
(1) The length of time the violation existed;
(2) The culpability of the owner and the willfulness of the violation;
(3) The number of previous violations of the same or related type committed by
the owner within the preceding thirty-six(36) months;
(4)The extent of the violation and the effect of the violation on neighboring
properties:
(5)Attempts, if any, to comply with the applicable ordinances:
(6)The time necessary to abate the violation; and
(7)Any other information relevant to a determination of the fine.
In making a determination of the fine, the Director shall consider any information
submitted by the owner. In the event that the Director determines that the violation was not
caused by, or with the knowledge of, the current owner,the Director may reduce or eliminate the
ORDINANCE NO. 2000- 3
Vit}
fine. In the event the Director determines that the correction of the violation is not feasible, and
the violation does not present a threat to public health or safety,the Director may reduce or
eliminate the fine.
(b)After making a determination of the fine,the Director shall transmit a Notice of
Determination of Fine by certified mail or personal service by a public officer to the person upon
whom the fine has been imposed. The Notice of Determination of Fine shall contain a statement
that if the owner fails to request an appeal of the administrative fine within ten(10) days, the
Notice of Determination of Fine shall be final and that any responsible party upon whom an
administrative fine has been imposed may seek judicial review of the order imposing the penalty
pursuant to Government Code § 53069.4.
(c)The Director may, in his or her discretion, record a copy of the Notice of
Determination of Fine with the Contra Costa County Recorder. In the event of such recordation,
and in the event that the violation is subsequently corrected, the Director shall record a Notice of
Correction. Correction of the violation shall not excuse the owner's liability for costs incurred
during the administrative abatement process. (Ord 2000-_, § _.)
14-12.014. Appeals. (a) Any person upon whom an administrative fine is imposed by
the Director may appeal such fine pursuant to the procedures set forth in this section. The
appellant must file a written appeal with the Director within ten working days of personal service
or the date of mailing of the Notice of Determination of Fine. The written appeal shall contain:
(1)A brief statement setting forth the interest the appealing party has in the matter
relating to the imposition of the penalty;
(2)A brief statement of the material facts which the appellant claims supports his
or her contention that no administrative penalty should be imposed or that an administrative
penalty of a different amount is warranted; and
(3) An address at which the appellant agrees notice of any additional proceedings
or an order relating to imposition of the administrative penalty may be received by first class
mail.
(b)An appeal of an administrative fine imposed for violations Title 7 of this Code shall
be heard by the Director of the Building Inspection Department as the hearing examiner. An
appeal of an administrative fine imposed for violation of Title 8 of this Code shall be heard by
the Zoning Administrator as the hearing examiner. The administrative fine appeal hearing shall
be set no sooner than twenty(20) days and no later than forty-five (45) days following a request
for an appeal hearing. Notice of the appeal hearing shall be mailed at least twelve calendar days
before the date set for the hearing. Failure to appear timely will cause the administrative fine to
become a final order or decision.
ORDINANCE NO. 2000. 4
(c) In reviewing the fine, the hearing examiner shall consider the factors set forth in
Section 14-12.012 above, and shall uphold the fine imposed by the Director or his or her
designee, eliminate the fine, or modify it. The decision of the hearing examiner shall constitute
the final administrative order or decision of the local agency within the meaning of Government
Code section 53069.4(b)(1) and (c). The hearing examiner shall serve a copy of his or her
written decision on the appellant by first class mail to the address provided by appellant in the
written notice of appeal. The hearing examiner's decision shall be deemed served within two
days after the date it was mailed to the address provided by the appellant. (03rd. 2000-_, §
14-12.016. Enforcement and Collection. When an administrative fine or penalty
becomes a final order under this section or Government Code section 53069.4, the County may
proceed to collect the fine or penalty as follows.
(a) In the event a civil action is commenced to collect the administrative penalty, the
County shall be entitled to recover all costs associated with the collection of the penalty. Costs
include, without limitation, staff time incurred in the collection of the penalty and those costs set
forth in Code of Civil Procedure section 1033.5.
(b) An administrative penalty shall accrue interest at the same annual rate as any civil
judgment. Interest shall accrue commencing on the 20"day after the penalty becomes a final
decision or order.
(c)The amount of any unpaid final administrative fine,plus interest,plus any other costs
as provided in this Chapter, may be declared a lien on any real property owned by the owner
within the County against whom an administrative penalty has been imposed, as follows:
(1)Notice shall be given to the owner before recordation of the lien, and shall be
served in the same manner as a summons in the civil action pursuant to Code of Civil Procedure
section 415.10 et seq.;
(2)The lien shall attach when the County records it with the County Recorder's
office. The lien shall specify the amount of the lien, the date(s) of the code violations,the date of
the final decision, the street address, legal description, and assessor's parcel number of the parcel
on which the lien is imposed, and the name and address of the record owner of the parcel; and
(3)The lien shall be collected at the same time and in the same manner as county
taxes are collected as set forth in section 14-6.436.
(d)The County may withhold issuance of licenses,permits and other entitlements to a
responsible party on any project,property, or application of any kind whenever an administrative
penalty remains unpaid.
ORDINANCE NO. 2000- 5
(e)The County may take such other actions as are allowed for enforcement of a civil
judgment as provided for pursuant to the Enforcement of Judgment Law, California Code of
Civil Procedure section 680.010 et seq. (Ord. 2000- - § _.)
14-12.018. Judicial Review. Any person aggrieved by a final administrative order or
decision of the Director or the Zoning Administrator imposing an administrative fine may seek
review with the Superior Court in the County of Contra Costa pursuant to Government Code §
53069.4. (Ord. 2000
SE ` 10N III. EFFECTIVE DATE This ordinance becomes effective thirty(30) days after
passagets,and within fifteen(15) days after passage shall be published once with the names of
supervisors_voting for or against it in the , a newspaper published
in this County,, (§§ 25123 & 25124.)
PASSED on ,by the following:
AYES:
NOES:
ABSENT:
ATTEST: PHIL BATCHELOR., Clerk of
Board and County Administrator
By:
Deputy Board Chair
k
DJS/jh
I:UdAWadminpen.wpd
ORDINANCE NO. 2000- 6