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HomeMy WebLinkAboutTC Ord 1998-08-05 (4) ~CP '(',,,,,,,,,". ."",,"y 1 ORDINANCE NO. 439 N.S. 2 AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF TIBURON REPEALING SECTIONS 3 1-7,1-8,1-10,1-11,1-12,1-13; AMENDING SECTIONS 1-2,2-8, AND 13-4.1(A); REPEALING CHAPTER 24; AND 4 ADOPTING NEW SECTIONS 1-7; 1-8; 1-10; AND 5 ADDING NEW CHAPTER 31 (ENFORCEMENT OF CODE). The Town Council of the Town of Tiburon does ordain as follows: 6 SECTION 1. REPEALING SECTIONS 1-7, 1-8, AND 1-10 TO 1.13 OF TITLE I, 7 CHAPTER 1. 8 Sections 1-7, 1-8, and 1-10 to 1-13 of Title I, Chapter 1, of the Tiburon Municipal Code, as adopted by Ordinance NO.1 N.S, are hereby repealed. 9 SECTION 2. AMENDING SECTION 1-2. 10 Section 1-2, "Code," of the Tiburon Municipal Code is hereby amended to read: 11 12 Code. The words "the Code" or "this Code" shall mean "The Municipal Code of the Town of 13 Tiburon, California," any Town ordinance, as well as any codes as have been incorporated by reference. 14 SECTION 3. AMENDING SECTION 2-8. 15 Section 2-8 of the Tiburon Municipal Code is hereby amended to include subsections (p) and (q) 16 which are to read as follows: 17 (p) The Town Manager is authorized to designate persons, in addition to police 18 officers, as "Code Enforcement Officers," to enforce all provisions of this Code 19 or any other ordinance within the definition of2-3.4(b). 20 (q) Pursuant to the provision of Section 830.6 of the Penal Code of the state of 21 California, the Town Manager is authorized to deputize or appoint, as a reserve 22 or auxiliary Town peace officer, any officer or employee of the Town who meets 23 such qualifications therefor as may be imposed by law, and who is assigned specific 24 police functions by the Town Manager. 25 26 27 28 A\CODENFRC.CIT 1 1 SECTION 4. AMENDING SECTION 13-4.1(A). 2 Section 13-4.1(a) of the Tiburon Municipal Code, as adopted by Ordinance No. 418 N.:' .. 3 hereby amended to read as follows: 4 (a) Section 105 (Board of Appeals) is amended such that the function of the Board 5 of Appeals is vested with an Administrative Hearing Officer or Hearing Officer 6 appointed by the Town Manager pursuant to Articles IV and VI, Chapter 31 of 7 this Code. Any appeal of orders pursuant to this chapter shall be conducted in 8 accordance with the administrative hearing process as described in Article IV and 9 Article V of Chapter 31 of this Code. 10 SECTION 5. ADDING NEW SECTION 1-7. 11 Section 1-7 is hereby added to the Tiburon Municipal Code to read as follows: 12 Sec. 1-7 Service of notices.. 13 (a) Unless otherwise designated in a particular provision, whenever a notice is required to be 14 given under this Code, such notice may be given by: 15 (I) Personal Delivery thereof to the person to be notified; 16 (2) Deposit in the United States Mail in a sealed envelope, postage prepaid; 17 (3) Overnight delivery service; or by 18 (4) Certified Mail. 19 (b) Notice by deposit in the United States mail, by overnight delivery service, or by certified 20 mail, shall be addressed to such person to be noticed, at his last known business or 21 residence address as the same appears in the public records or other records pertaining 22 I to the matters to which such notice is directed. i 23 (c) Notice by deposit in the United States mail or certified mail shall be deemed complete 24 at the time of deposit; but unless the court prescribes a shorter period of time, any 25 prescribed period of notice and any right or duty to do any act or make any response 26 within any prescribed period or on a date certain after a paper is served by mail is extended 27 28 A:\CODENFRC.CIT 2 -~.._- r- "- - . 1 five days if the place of address is within the state of California, ten days if the place of 2 address is outside the state of California but within the United States, or twenty days if 3 the place of address is outside the United States. 4 (d) Notice by overnight delivery shall be deemed complete at the time of the deposit, but any 5 period of notice and any right or duty to do any act or make any response within any 6 period or on a date certain after the service of the document served by overnight delivery 7 shall be extended by two court days, but the extension shall not apply to extend the time 8 for filing notice of intention to move for new trial, notice of intention to vacate judgment 9 pursuant to Code of Civil Procedure, Section 663a, or notice of appeal. 10 11 SECTION 6. ADDING NEW SECTION 1-8. 12 Section 1-8 is hereby added to the Tiburon Municipal Code to read as follows: 13 Sec. 1-8 Proof of service. 14 Proof of giving any notice may be made by the certificate of any officer, Code Enforcement 15 Officer, or employee of this Town or by affidavit of any person over the age of eighteen years, which 16 shows service in conformity with this Code or other provisions oflaw applicable to the subject matter 17 concerned. 18 SECTION 7. ADDlNG SECTION 1-10. 19 Section 1-10 is hereby added to the Tiburon Municipal Code to read as follows: 20 Sec. 1-10 Recovery of collection costs. 21 Any person who fails to pay any fee, charge, municipal tax or other amount owed to the Town 22 shall be liable in any action brought by the Town for all costs incurred in securing payment of the 23 delinquent amount, including but not limited to, costs of staff time, other administrative costs and 24 attorneys' fees. 25 Such collection costs shall be in addition to any penalties, interest, and late charges imposed 26 pursuant to state law or to an ordinance or resolution of the Town council. 27 28 A\CODENFRC .CIT 3 -. . ..~ I 1 SECTION 8. REPEALING CHAPTER 24 OF TITLE VI. 2 Chapter 24 of Title VI, of the Tiburon Municipal Code, as adopted by Ordinance No. 59 N.S., 3 is hereby repealed. 4 SECTION 9. ADDING CHAPTER 31. 5 A new Chapter 31 is hereby added to the Tiburon Municipal Code to read as follows: 6 7 CHAPTER 31 8 ENFORCEMENT OF CODE 9 10 Sections: 11 Article I. In General. 12 31-1 Scope of this chapter. * 31-1.1 Definitions. 13 Article II. Code Enforcement Authority; Powers; Citation Procedure; I 14 and Arrest Procedure. I 31-2 Declaration of purpose. 15 31-3 General code enforcement authority. 31-4 Scope of authority to enter and inspect property. 16 31-5 Procedure involving infractions and misdemeanors--General. 31-5.1 Same--Adoption by reference. 17 31-5.2 Same--Procedure upon arrest of persons for violation of code or ordinance; written promise of arrested person to appear." 18 31-5.3 Same--violation of promise to appear 31-5.4 Same--Failure to appear; warrant for arrest. 19 31-6 False arrest or imprisonment -- use of reasonable force. 20 Article III. Judicial Remedies. 31-7 Criminal violations -- infractions and misdemeanors. 21 31-7.1 Same -- presumptively an infraction. 31-7.2 Same -- penalty for Infraction Violations. * 22 31-7.3 Same -- penalty for misdemeanor violations." 31-7.4 Same--Discretion of Town Attorney and judiciary to reduce charge. * 23 31-8 Civil actions -- injunction, civil penalties and administrative costs. 31-9 Same -- judicial abatement. 24 31-10 Same -- treble damages for subsequent abatement judgments. 25 Article IV. Administrative Citations. 31-11 Administrative citations -- scope. 26 31-12 Certain violations deemed enforceable by administrative citations. 31-13 Administrative citation and pre-citation notice. 27 31-14 Amount of fines. .. 28 A\CODENFRC.CIT 4 -.--- 1 31-15 Payment of the fine. 31-16 Hearing request. 2 31-17 Advance deposit hardship waiver. 31-18 Hearing officer. 3 31-19 Hearing procedure. 31-20 Hearing officer's decision. 4 31-21 Late payment charges. 31-22 Recovery of administrative citation fines and costs. 5 31-23 Right to judicial review. 31-24 Notices. 6 Article V. Administrative Remedies; Abatement; Code Enforcement Assessment Lien. 7 31-25 Applicability. 31-26 Notice and compliance order. 8 31-27 Method of service for the notice and compliance order. 31-28 Compliance with notice and compliance order. 9 31-29 Non-compliance with notice and compliance order; hearing. 31-30 Notice of hearing. 10 31-31 Hearings -- findings, decision, and administrative order. 31-32 Administrative order. 11 31-33 Administrative civil penalties.' 31-34 Administrative costs. 12 31-35 Supplemental hearing, decision and administrative order. 31-36 Failure to comply with administrative order. 13 31-37 Right of judicial review. 31-38 Recovery of administrative civil penalties and administrative costs. 14 31-39 Report 01' compliance after administrative order. 31-40 Compliauce dispute. 15 31-41 Summary abatement. 31-42 Code enforcemeut assessment lien; tax collection. 16 17 Article I. In General. 18 Sec. 31-1 Scope of this chapter. * 19 (a) Each such person shall be guilty of a separate offense, whether it be an infraction, 20 misdemeanor, public nuisance or administrative, for each and every day during any 21 portion of which any violation of any provision of this Code or any other Town 22 ordinance is committed, continued or permitted by such person and shall be punishable 23 accordingly. 24 (b) The penalties and remedies specified in this chapter are in addition to, and do not 25 supersede or limit, any other penalties or remedies, civil or criminal. 26 *"Code" is defined in S~dion 1-2 as to induJ(: any provision of this Code, any Town ordinance. any codes as have been 27 incorporated by rd~r~ncc. 28 A:\CODENFRC.CIT 5 H ________ I 1 Sec. 31-1.1 Definitions. 2 Abatement "Abatement" shall mean any action the Town may take on public or private 3 property and any adjacent property as may be necessary to remove or alleviate a nuisance, including 4 but not limited to demolition, removal, repair, boarding and securing or replacement of property. 5 Administrative Civil Penalties. "Administrative civil penalties" shall mean any penalty 6 imposed by an Administrative Hearing Officer for a violation of any provision of this Code or any 7 other public nuisance, in accordance to the maximum amount specified in Government Code Section 8 36901, exclusive of administrative costs, interest and restitution for compliance re-inspections. 9 Administrative Costs. "Administrative Costs" shall mean any costs incurred by the Town in 10 connection with a matter before an Administrative Hearing Officer, including but not limited to, the 11 costs for the Administrative Hearing Officer's services, costs of investigation, staffing costs incurred 12 in preparation for the hearing and for the hearing itself, costs for all re-inspections necessary to 13 enforce a notice and compliance order, and the costs of actual abatement if undertaken by the Town. 14 Administrative Hearing Officer. "Administrative Hearing Officer" shall mean any person 15 appointed by the Town Manager to preside over administrative enforcement hearings. In the evel. 16 that the hearing involves the application or interpretation of the Town's Building Code, the 17 Administrative Hearing Officer shall possess the qualifications required by Section 105.1 of the 18 Uniform Building Code (1994 ed.). 19 Administrative Order. "Administrative order" shall mean an order issued by an Administrative 20 Hearing Officer after a hearing requiring a Responsible Person and/or Record Property Owner to 21 correct Code violations, abate a public nuisance, pay administrative civil penalties and administrative 22 costs or take any other action as authorized or required by this Code, and authorizing the Town to 23 abate the Code violation or public nuisance if the Responsible Person and/or Record Property Owner 24 fails to do so. 25 Arresting Officer. "Arresting officer" shall mean any peace officer and/or Code Enforcement 26 Officer. 27 28 A:\CODENFRG.CIT 6 -----~-_. ----.--.- '- -~ , 1 Code Enforcement Assessment Lien. "Code enforcement assessment lien" shall mean a lien to 2 collect outstanding administrative civil penalties and administrative costs imposed as part of an 3 administrative enforcement proceeding with respect to a Code violation or other public nuisance. 4 Code Enforcement Officer. "Code Enforcement Officer" or "enforcement officer" shall mean 5 any Town employee authorized by the Town Manager to enforce all provisions of this Code or any 6 other ordinance. The Code Enforcement Officer may issue infractions, misdemeanors, administrative 7 citations, and notice and compliance orders as specified in chapter 31 of this Code. 8 Legal Interest "Legal interest" shall mean any interest that is represented by a document such 9 as a deed of trust, quitclaim deed, mortgage, judgment lien, tax or assessment lien, mechanic's lien or 10 other similar instrument which is recorded with the County Recorder. 11 Notice and Compliance Order. "Notice and compliance order" shall mean a document used in 12 Code violation and other public nuisance proceedings which provides notice of the Code violations or 13 other public nuisances and orders a Responsible Person and/or Record Property Owner to take 14 certain steps to correct the violations. 15 Notice and Code Enforcement Assessment Lien. "Notice and Code enforcement lien" shall 16 mean a document or form, approved by the Town Manager, which is recorded with respect to a Code 17 Enforcement Assessment Lien. 18 Notice of Satisfaction. "Notice of satisfaction" shall mean a document or form, approved by 19 the Town Manager which indicates that all outstanding administrative civil penalties and 20 administrative costs have either been paid in full, or that the Town has negotiated an agreed amount, 21 or that a subsequent administrative or judicial decision has resolved the outstanding debt. 22 Public Nuisance A "public nuisance" exists where the Town determines that any condition 23 caused, maintained or permitted to exist which (a) violates any provision of this Code; (b) constitutes 24 a threat to the public's health, safety and welfare; (c) significantly obstructs, injures or interferes with 25 the reasonable or free use of property in a neighborhood, community or to any considerable number 26 of persons; or (d) constitutes an unlawful obstruction or encroachment on any public property, 27 including but not limited to any public street, highway, right-of-way or other easement, open space 28 A:\CODEN1'RC.ClT 7 I 1 area, park or building. Notwithstanding the foregoing, a "public nuisance" shall not include any 2 condition on Town-owned land where such land is unimproved and reserved for 3 open space/recreational uses. 4 Responsible Person. "Responsible Person" shall mean a person who a Code Enforcement 5 Officer determines is responsible for causing or maintaining a violation of the Code and/or other 6 public nuisance. The term "Responsible Person" includes but is not limited to a record property 7 owner, tenant, person with Legal Interest in real property or person in possession of real property. 8 9 Article n. Code Enforcement Authority; Powers; Citation Procedure; and Arrest Procedure. 10 11 Sec. 31-2 Declaration of purpose. 12 The Council finds that the enforcement throughout the Town of this Code is an important public 13 service. Code enforcement is vital to the protection of the public's health, safety and quality oflife. The 14 Council recognizes that code enforcement depends upon the codification of precise regulations that can 15 be effectively applied in administrative and judicial proceedings. The Council further finds t a 16 comprehensive code enforcement system that uses a combination of judicial and administrative remedies 17 is critical to gain compliance with Town regulations. 18 Sec. 31-3 General code enforcement authority. 19 (a) Peace officers are hereby empowered to enforce any and all provisions of this Code or any 20 other ordinance of the Town, where a violation of such provision or provisions or of such 21 ordinance would constitute a misdemeanor, an infraction, a public nuisance or a parking I 22 violation. I 23 (b) The Town Manager and Code Enforcement Officers, pursuant to Penal Code Section 24 836.5 which is hereby adopted by reference, are hereby empowered to enforce any and 25 all provisions of this Code or any other ordinance of the Town, where a violation of such 26 provision or provisions or of such ordinance would constitute a misdemeanor, an 27 infraction, a public nuisance or administrative violation. 28 A\CODENFRC.CrT 8 I , - - . 1 (c) The powers of the Town Manager, Code Enforcement Officers, and Peace Officers 2 include but are not limited to the power to enter and inspect public and private property, 3 and use whatever judicial and administrative remedies are available under this Code and 4 applicable state laws. 5 Sec. 31-4 Scope of authority to enter and inspect property. 6 (a) When it is necessary to make an inspection to enforce the provisions of this code, or when 7 the Town Manager, or any Code Enforcement Officer or peace officer has reasonable 8 cause to believe that there exists in a building or upon a premises a condition which is 9 contrary to or in violation of this code which makes the building or premises unsafe, 10 dangerous or hazardous, the Town Manager, or any Code Enforcement Officer or peace 11 officer may enter the building or premises at reasonable times to inspect or to perform the 12 duties imposed by this code, provided that if such building or premises be occupied that 13 credentials be presented to the occupant and entry requested. If such building or premises 14 be unoccupied, the Town Manager, or any Code Enforcement Officer or peace officer 15 shall first make a reasonable effort to locate the owner or other person having charge or 16 control of the building or premises and request entry. 17 (b) If entry is refused, the Town Manager, or any Code Enforcement Officer or peace officer 18 shall have recourse to secure entry by whatever judicial and administrative remedies are 19 available under this Code and applicable state laws, such as but not limited to an 20 administrative inspection warrant pursuant to the procedures set forth in California Civil 21 Procedure, Section 1822.50 et. seq., as it may be amended from time to time. 22 (c) Any person who willfully refuses to permit an inspection lawfully authorized by warrant 23 issued pursuant to California Civil Procedure, Section 1822.50 et. seq., is guilty of a 24 misdemeanor pursuant to California Civil Procedure, Section 1822.57. 25 Sec. 31-5 Procedure involving infractions and misdemeanors--General. 26 Except as otherwise provided by law, all provisions oflaw relating to misdemeanors shall apply 27 to infractions including, but not limited to, powers of peace officers, jurisdiction of courts, periods for 28 A\CODENFRC.CIT 9 I 1 commencing action and for bringing a case to trial and burden of proof 2 Sec. 31-5.1 Same--Adoption by reference. 3 Except as provided in sections 31-5.2 to 31-5.4, the provisions of chapter 5C, title 3, part 2, of 4 the Penal Code of the state are hereby adopted and made a part of sections 31-5.2 to 31-5.4, as iffully 5 set forth. 6 Sec. 31-5.2 Same--Procedure upon arrest of persons for violation of Code or ordinance; 7 written promise of arrested person to appear." 8 (a) Whenever any person is arrested for an infraction or a misdemeanor for a violation 9 of any provisions of this Code or of any other Town ordinance and is not immediately 10 taken before a magistrate as required or permitted by the Penal Code, the arresting officer 11 shall prepare in duplicate a written notice to appear in court containing the name and 12 address of such person, the offense charged, and the time and place where and when such 13 person shall appear in court. 14 (b) The time specified in the notice to appear must be at least ten days after the arrest. 15 (c) The place specified in the notice to appear shall be: 16 (I) Before ajudge of the municipal court of the Central Judicial District, County of 17 Marin; or 18 (2) before an officer authorized by such court to receive a deposit of bail. 19 (d) The officer shall deliver one copy of the notice to appear to the arrested person and the 20 arrested person, in order to secure release, must 21 (1) present his driver's license or other satisfactory evidence of his identity to the 22 peace officer, and 23 (2) give his written promise to so appear in court by signing the duplicate notice which 24 shall be retained by the officer. Thereupon the arresting officer shall forthwith 25 release the person arrested from custody. 26 (e) Pursuant to Penal Code Section 853.5, any person arrested for an infraction may be taken 27 into custody for refusing to sign a written promise, having no satisfactory identification, 28 A:\CODENFRC.CIT 10 1 - - - 1 or refusing to provide a thumbprint or fingerprint. The thumbprint or fingerprint shall not 2 be used to create a data base, and shall only be required should the arrestee not have a 3 driver's license or other satisfactory identification. 4 (1) Any person arrested for a misdemeanor may be taken into custody pursuant to Penal Code 5 Section 853.6. 6 (g) The officer shall, as soon as practicable, file the duplicate notice with the magistrate 7 specified therein. Thereupon bail shall be set and the matter dealt with according to law. 8 ."Arresting officer" is defined in Section 31-1.1 as a peace officer and/or a Code Enforcement Officer. 9 Sec. 31-5.3 Same--violation of promise to appear 10 Any person who wilfully violates his written promise to appear or a lawfully granted continuance 11 of his promise to appear in court is guilty of a misdemeanor, regardless of the disposition of the charge 12 upon which he was originally arrested and/or issued a criminal citation. 13 Sec. 31-5.4 Same--Failure to appear; warrant for arrest. 14 (a) When any person signs a written promise to appear at the time and place specified in 15 the written promise to appear before a magistrate, and has not posted bail to assure 16 his appearance, the magistrate shall issue and have delivered for execution a warrant 17 for his arrest within twenty (20) days after his failure to appear as promised or within 18 twenty (20) days after his failure to appear after a lawfully granted continuance of his 19 promise to appear. 20 (b) When a person signs a written promise to appear before an officer authorized to accept 21 bail other than a magistrate, and fails to do so on or before the date which he promised 22 to appear, then the magistrate shall issue and have delivered for execution a warrant for 23 his arrest within twenty (20) days after the delivery of such written promise to appear by 24 the oftlcer to a magistrate having jurisdiction over the offense. 25 (c) When any such person violates his promise to appear before an officer authorized to 26 receive bail other than a magistrate, the officer shall immediately deliver to the magistrate 27 having jurisdiction over the offense charged, the written promise to appear and the 28 A\CODENFRC.ClT 11 1 complaint, if any, filed by the arresting officer. 2 Sec. 31-6 False arrest or imprisonment -- use of reasonable force. * 3 There shall be no civil liability on the part of and no cause of action shall arise against any person 4 acting pursuant to Section 31-3 and within the scope of his authority, for false arrest or false 5 imprisonment arising out of any lawful arrest or which the arresting officer at the time such arrest had 6 reasonable cause to believe was lawful. No such Code Enforcement Officer or peace officer shall be 7 deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest 8 or to prevent escape or to overcome resistance. 9 *For state law limiting the civil liability of Peace Officers and Code Enforcement Officers for false arrest, false imprisorunent, 10 and use of reasonable force see, Penal C. SS 836(a) and 836.5(b). 11 Sec. 31-6.1 No civil liability against public employees.' 12 A public employee is not liable for injury caused by his instituting or prosecuting any judicial or 13 administrative proceeding within the scope of his employment, even ifhe acts maliciously and without 14 probable cause. 15 'For state law limiting civil liability of public employees see, Gov. C. S 821.6. 16 17 Article III. Judicial Remedies. 18 Sec. 31-7 Criminal violations -- infractions and misdemeanors. 19 It shall be unlawful for any person to violate any provision or to fail to comply with any of the 20 requirements of this Code or of any other ordinance of the Town. At the discretion of the Town 21 Attorney, any violation may be charged and prosecuted as either an infraction or misdemeanor, except 22 where otherwise specifically provided. 23 Sec. 31-7.1 Same -- presumptively an infraction. 24 Any person violating any of the provisions or failing to comply with any of the mandatory 25 requirements of this Code, other than administrative provisions thereof, shall be guilty of an infraction, 26 unless the violation of such provision is designated as a misdemeanor, parking violation or administrative, 27 or at the Town Attorney's discretion under Sections 31-7 and 31-7.4. 28 A:\CODENFRC.CIT 12 - ----- n_____ i 1 Sec. 31-7.2 Same -- penalty for Infraction Violations. * 2 Every violation determined to be an infraction under the provisions of this Code shall be 3 punishable by: 4 (a) A fine not exceeding one hundred dollars ($100) for a first violation; 5 (b) A fine not exceeding two hundred dollars ($200) for a second violation, of the same 6 provision of this Code or the same ordinance, within one year; 7 (c) A fine not exceeding five hundred dollars ($500) for each additional violation, of the same 8 provision of this Code or the same ordinance, within one year; and 9 (d) Any violation of the same provision of this Code or the same ordinance that is an 10 infraction, for the fourth time, within one year, shall be guilty of a misdemeanor. 11 (e) The Town Attorney has discretion to charge any person who has violated the same 12 provision of this Code or the same ordinance that is an infraction, for the fourth time, 13 within one year, with either an infraction (pursuant to (c) of this section) or a 14 misdemeanor (pursuant to (d) of this section). 15 *For state law authorizing Towns to impose infraction penalties, not exceeding those set forth above in 31-6.2(a)-(c), see Gov. 16 C., ~ 36900(b). 17 Sec. 31-7.3 Same -- penalty for misdemeanor violations." 18 Every violation specifically designated as a misdemeanor or pursuant to 31-7.2(d) and (e) shall 19 by punishable by imprisonment in the Marin County Jail not exceeding six months, or by fine not 20 exceeding one thousand dollars ($1,000), or by both. 21 *For state law authorizing T O\\IlS to impose misdemeanor penalties see, Gov. C, S 36901. 22 Sec. 31-7.4 Samc--Discretion of Town Attorney and judiciary to reduce charge.' 23 (a) Any misdemeanor violation including, but not limited to the definition of section 31-7.2 24 of this chapter, is an infraction when: 25 (1) The Town Attorney files a complaint charging the offense as an infraction unless 26 the defendant, at the time he or she is arraigned, after being informed of his 27 rights, elects to have the case proceed as a misdemeanor, or; 28 A\CODENFRC.CIT 13 1 (2) The court, with the consent of the defendant, determines that the offen;" is 2 an infraction in which event the case shall proceed as if the defendant had been 3 arraigned on an infraction complaint. 4 (b) The Town Attorney shall maintain the discretion to waive any misdemeanor complaint and 5 enter into a mutual settlement with any defendant, after the defendant has been fully 6 informed of his rights. The settlement fine may not exceed the maximum fines for 7 infractions or misdemeanors as set forth in Sections 31-7.2 and 31-7.3, or as otherwise 8 provided by state law. 9 *For state law authorizing reduction of a misdemeanor to an infraction charge, see Gov. C., ~ 17(d). 10 Sec. 31-8 Civil actions -- inj unction, civil penalties and administrative costs. 11 In addition to all other remedies, the Town may bring a civil action to enforce the provisions of 12 this Code, in which a court may impose the following remedies: 13 (a) An injunction; 14 (b) Civil penalties in an amount not to exceed One Thousand Dollars ($1,000.00) per 15 violation for each day, payable to the Town, against any person who commits, continues, 16 operates, allows or maintains any violation of any provision of this Code; 17 (c) Reimbursement of Town administrative and abatement costs, including but not limited 18 to investigative costs incurred in the enforcement of the provisions of this Code; and 19 (d) Award of attorneys' fees, where the Town has elected at the initiation of the action to 20 seek the recovery of such fees, in which case the prevailing party in such action shall 21 be entitled to an award of attorneys' fees in an amount which shall not exceed the 22 reasonable attorneys' fees incurred by the Town. 23 Sec. 31-9 Same -- judicial abatement. 24 Pursuant to California Government Code Section 38773, the Town has authority to judicially 25 abate public nuisances by filing criminal or civil actions. The Town also has authority under state law 26 to make the expense of nuisance abatement a special assessment, or a lien against the property on which 27 it is maintained and a personal obligation against the record property owner, in accordance .th 28 A\CODENFRC.CIT 14 -~_.- - - . 1 California Government Code Section 38773.1 or 38773.5. 2 Sec. 31-10 Same -- treble damages for subsequent abatement judgments. 3 Pursuant to Government Code Section 38773.7, upon the entry of a second or subsequent civil 4 or criminal judgment within a two-year period that finds a record property owner responsible for a 5 condition that may be abated in accordance with Government Code Section 38773.5, a court may order 6 the owner to pay treble the costs of abatement. The costs shall not include conditions abated pursuant 7 to Health and Safety Code Section 17980. 8 9 Article lV. Administrative Citations. 10 Sec. 31-11 Administrative citations -- scope. 11 Article IV of this chapter provides for administrative citations which are in addition to all other 12 legal remedies, criminal or civil, which may be pursued by the Town to address any violation of this Code 13 or other public nuisances. 14 The purpose and intent of this article is to effectively enforce this Code and/or other public 15 nuisances from violations and/or nuisances committed by a discreet first time offender. 16 Sec. 31-12 Certain violations deemed enforceable by administrative citations. 17 (a) Certain violations of this Code, as set forth by resolution, shall be deemed enforceable by 18 administrative citations. S.e-c 6so. Ak -3 300 ~ ~!y,/'f7l' 19 (b) The Town Clerk shall maintain a current list of the violations of the Code which are set 20 forth under Section 31-12(a). 21 (c) The Town Attorney maintains the right to pursue any Code violation, including those set 22 forth under Section 3 l-12( a), with all other legal remedies, criminal or civil or as required 23 by law 24 Sec. 31-13 Administrative citation and pre-citation notice. 25 (a) Whenever a Code Enforcement Officer determines that a violation of this Code subject 26 to Section 31-12 occurred, the Code Enforcement Officer shall have the authority to issue 27 an administrative citation to any person responsible for the violation, subject to the 28 A:\CODENFRC.CIT 15 1 limitations contained in Subsection (c) hereafter. 2 (b) Each administrative citation shall contain the following information: 3 (I) The date of the violation; 4 (2) The address or a definite description of the location where the violation occurred; 5 (3) The section of this Code violated and a description of the violation; 6 (4) The amount of the fine for the Code violation; 7 (5) A description of the fine payment process, including a description of the time 8 within which and the place to which the fine shall be paid; 9 (6) An order prohibiting the continuation or repeated occurrence of the Code violation 10 described in the administrative citation; 11 (7) The name and signature of the citing Code Enforcement Officer. 12 (c) Prior to issuing an administrative citation for a continuing violation of this Code pertaining 13 to building, plumbing, electrical, or other similar structural or zoning issues, that do not 14 create an immediate danger to health or safety, the Code Enforcement Officer shall _ ve 15 a pre-citation notice on the person responsible for the violation containing the following 16 information: 17 (I) The date the violation was observed; . 18 (2) The address or a description of the location where the violation was observed; 19 (3) The section of this Code violated and a description of the violation; 20 (4) The compliance date by which the violation shall be corrected or otherwise 21 remedied, which shall be no less than fifteen (15) days and no more than sixty (60) 22 days from the date the pre-citation notice is given, as determined to be reasonable 23 by the Code Enforcement Officer; 24 (5) A statement that if the violation is not corrected by the specified compliance 25 date, that an administrative citation will be issued which imposes a fine, for the 26 amount of which will be specified; and 27 28 A\CODENFRC.CIT 16 I , , I I ..- -- -------- 1 (6) The name, signature and department of the Code Enforcement Officer issuing the 2 pre-citation notice. 3 Sec. 31-14 Amount of fines. 4 (a) The amounts of the fines for Code violations imposed pursuant to this chapter shall 5 be set forth in the schedule of fines established by resolution ofthe Town Council. If no 6 fine is established by resolution for a particular infraction, the fine for that resolution shall 7 be as set forth in the then-current Bail and Penalty Schedule published by Marin County 8 Courts pursuant to California Rule of Court 850. 9 (b) The schedule of fines shall specity any increased fines for repeat violation of the same 10 Code provision by the same person within thirty-six (36) months from the date of an 11 administrative citation. 12 (c) The schedule of fines shall specity the amount of any late payment charges imposed 13 for the payment of a fine after its due date. 14 Sec. 31-15 Payment of the fine. 15 (a) The fine shall be paid to the Town within thirty (30) days from the date of the 16 administrative citation. 17 (b) Any administrative citation fine paid pursuant to subsection (a) shall by refunded in 18 accordance with Section 31-20(d) if it is determined, after a hearing, that the person 19 charged in the administrative citation was not responsible for the violation or that there 20 was no violation as charged in the administrative citation. 21 (c) Payment of a fine under this chapter shall not excuse or discharge any continuation or 22 repeated occurrence of the Code violation that is the subject of the administrative citation. 23 Sec. 31-16 Hearing request. 24 (a) Any recipient of an administrative citation may contest that there was a violation of 25 the Code or that he or she is the responsible party by completing a request for hearing 26 form and returning it to the Town within thirty (30) days from the date of the 27 administrative citation, together with an advance deposit of the fine or notice that a 28 A\CODENFRC.CIT 17 1 request for an advance deposit hardship waiver has been filed pursuant to Section 31- _ I. 2 (b) A request for hearing form may be obtained from the department specified on the 3 administrative citation. 4 (c) The person requesting the hearing shall be notified of the time and place set for the 5 hearing at least ten (10) days prior to the date of the hearing. 6 (d) If the C ode Enforcement Officer submits an additional written report concerning the 7 administrative citation to the hearing officer for consideration at the hearing, then a 8 copy of this report also shall be served on the person requesting the hearing at least five 9 (5) days prior to the date of the hearing. 10 Sec. 31-17 Advance deposit hardship waiver. 11 (a) Any person who intends to request a hearing to contest that there was a violation of the 12 Code or that he is the responsible party and who is financially unable to make the advance 13 deposit of the fine as required in Section 31-16(a) may file a request for an advance 14 deposit hardship waiver. 15 (b) The request shall be in writing and shall explain, under penalty of peIjury, the advance 16 deposit requirement will impose an undue financial burden. The request shall be filed with 17 the Town Clerk, together with any supporting documents, within ten (10) days of the date 18 of the administrative citation. 19 (c) The requirement of depositing the full amount of the fine as described in Section 31-16(a) 20 shall be stayed unless or until the Town Manager or his designee makes a decision not to 21 issue the advance deposit hardship waiver. 22 (d) The Town Manager or his designee may, in their discretion, waive in whole or in part the 23 requirement of an advance deposit set forth in Section 31-16 and issue an advance deposit 24 hardship waiver if the cited party, demonstrates to the satisfaction of the Town Manager 25 or his designee the person's actual financial inability to deposit with the Town the full 26 amount of the fine in advance of the hearing. 27 (e) If the Town Manager or his designee decides not to issue an advance deposit hal .lp 28 A:\CODENFRC.CIT 18 ---- '- 1 waiver, the person shall remit the deposit to the Town within ten (10) days of the day of 2 the decision or thirty (30) days from the date of the administrative citation, whichever is 3 later. 4 Sec. 31-18 Hearing officer. 5 The Town Manager shall designate the hearing officer for the administrative citation hearing. In 6 the event that the hearing involves the application and interpretation of the Town's Building Code, the 7 hearing officer shall posess the qualifications required under Section 105.1 of the Uniform Building Code 8 (1994 ed.). 9 Sec. 31-19 Hearing procedure. 10 (a) No hearing to contest an administrative citation before a hearing officer is required or shall 11 be valid unless the fine has been deposited in advance in accordance with Section 31-16 12 or an advance deposit hardship waiver has been issued in accordance with Section 31-17. 13 (b) A hearing before the hearing officer shall be set by the town clerk for a date that is not 14 less than fifteen (15) days and not more than sixty (60) days from the date that the request 15 for hearing is tiled in accordance with the provisions this article. 16 (c) At the hearing, the party contesting the administrative citation shall be given the 17 opportunity to testifY and to present evidence concerning the administrative citation. 18 (d) The failure of any recipient of an administrative citation to appear at the administrative 19 citation hearing shall constitute a forfeiture of the fine and a failure to exhaust their 20 administrative remedies. 21 (e) The administrative citation and any additional report submitted by the Code Enforcement 22 Ot1icer shall constitute prima facie evidence of the respective facts contained in those 23 documents. 24 (I) The hearing ot1icer may continue the hearing for good cause, and request additional 25 information from the Code Enforcement Officer or the recipient of the administrative 26 citation prior to issuing a written decision, provided that the hearing shall not be continued 27 for more than tifteen (15) days. 28 A:\CODENFRC.CIT 19 1 Sec. 31-20 Hearing officer's decision. 2 (a) After considering all of the testimony and evidence submitted at the hearing, and within 3 fifteen (15) days after the conclusion of the hearing, the hearing officer shall issue a 4 written decision to uphold or cancel the administrative citation and shall list in the 5 decision the reasons for that decision. The decision of the hearing officer shall be 6 supported by substantial evidence and shall be final. 7 (b) If the hearing officer determines that the administrative citation should be upheld, then the 8 fine amount on deposit with the Town shall be retained by the Town. 9 (c) If the hearing officer determines that the administrative citation should be upheld and the 10 fine has not been deposited pursuant to an advance deposit hardship waiver, the hearing 11 ofllcer shall set forth in the decision a payment schedule for the fine, which shall not 12 extend more than one hundred and eighty (180) days from the date of the decision. 13 (d) If the hearing officer determines that the administrative citation should be canceled 14 and the fine was deposited with the Town, then the Town shall promptly refun, .e 15 amount of the deposited fine, together with interest at the average rate earned on the 16 Town's portfolio for the period of time that the fine amount was held by the Town. 17 (e) The recipient of the administrative citation shall be served with a copy of the hearing 18 officer's written decision. 19 (f) The employment, performance evaluation, compensation and benefits of the hearing 20 officer shall not be directly or indirectly conditioned upon the amount of administrative 21 citation fines upheld by the hearing ofllcer. 22 Sec. 31-21 Late payment charges. 23 Any person who fails to pay to the Town any fine imposed, pursuant to the provisions of this 24 article, on or before the date that fine is due also shall be liable for the payment of any applicable late 25 payment charges set forth in the schedule of tines. 26 Sec. 31-22 Recovery of administrative citation fines and costs. 27 The Town may collect any past due administrative citation fine or late payment charge by u. ..>f 28 A\CODENFRC.CIT 20 ---...-.-- - --~---- ------ . I 1 all available legal means, including but not limited to procedures set forth in Section 31-42 (code 2 enforcement assessment lien; tax collection) of Title V where the violation involves real property. The 3 Town also may recover its collection costs pursuant to Section 1-10. 4 Sec. 31-23 Right to judicial review. 5 Any person aggrieved by an administrative decision of a hearing officer on an administrative 6 citation may obtain review of the administrative decision by filing a Notice of Appeal with the Municipal 7 Courts of Marin County in accordance with the timelines and provisions set forth in Government Code 8 Section 53069.4. 9 Sec. 31-24 Notices. 10 (a) The Administrative Citation, Pre-Citation Notice, Administrative Hearing Officer 11 Decision, and all notices required to be given by this article shall be provided to the 12 responsible party in accordance with the provisions of Section 1-7 of this Code. 13 (b) Failure to receive any notice specified in this article does not affect the validity of 14 proceedings conducted thereunder. 15 Article V. Administrative Remedies; Abatement; Code Enforcement Assessment Lien. 16 Sec. 31-25 Applicability. 17 (a) This article provides for administrative remedies, which are in addition to all other 18 legal remedies, criminal or civil, which may be pursued by the Town to address any 19 violation of this Code or other public nuisances. 20 (b) The purpose and intent of this article is to effectively enforce this Code and/or other public 21 nuisance from violations and/or nuisances committed by continuing offenders. 22 (c) Use of this chapter shall be at the sole discretion of the Town. 23 (d) For the purposes of this Article, the Code Enforcement Officer shall be the Building 24 Ot1icial 25 Sec. 31-26 Notice and compliance order. 26 (a) Whenever a Code Enforcement Officer determines that a violation of this Code or any 27 other public nuisance, is occurring or exists, the officer may issue a written notice and 28 A\CODENFRC.ClT 21 "_h__ 1 compliance order to the person or persons responsible for the Code violation or other 2 public nuisance. 3 (b) A notice and compliance order issued pursuant to this article shall contain the following 4 information: 5 (1) The date and location of the Code violation or public nuisance. 6 (2) The section and description of the Code violation or public nuisance. 7 (3) The action required to correct the Code violation or abate the public nuisance, and 8 the date by which compliance shall be achieved. 9 (4) A statement that if compliance is not achieved by the compliance date, that 10 administrative civil penalties and administrative costs, as well as the costs of 11 actual abatement by the Town, may be imposed on the responsible person and/or 12 record property owner, and collected judicially, or by special assessment or tax 13 collection, as provided in the article. 14 (5) Either a copy of this article, or an explanation of the consequences of 15 noncompliance with this article and a description of the hearing procedure J 16 appeal process. 17 Sec. 31-27 Method of service for the notice and compliance order. 18 (a) The notice and compliance order and any other notices required by this article shall 19 be served as provided in Section 1-7 of this Code. 20 (b) Where real property is involved, the notice and compliance order shall be mailed to 21 the record property owner at the address as shown on the last equalized county 22 assessment roll. 23 (c) Where personal service or service by mail upon the record property owner is unsuccessful, 24 a copy of the notice and compliance order shall be conspicuously posted at the property 25 which is the subject of the compliance order. 26 (d) The failure of any person to receive any notice required under this article shall not affect 27 the validity of any proceedings taken under this article. 28 A\CODENFRC.CIT 22 - . I - -. ---- -~.._- 1 Sec. 31-28 Compliance with notice and compliance order. 2 If the Code Enforcement Officer determines that all violations have been corrected or the public 3 nuisance eliminated within the time specified in the notice and compliance order, no further action shall 4 be taken. 5 Sec. 31-29 Non-compliance with notice and compliance order; hearing. 6 (a) If the C ode Enforcement Officer determines that full compliance has not been achieved 7 by the compliance date specified in the notice and compliance order, the officer may 8 schedule a hearing before an Administrative Hearing Officer. 9 (b) A written notice of hearing shall be served on the responsible person and, where real 10 property is involved, on the record property owner, as provided in Section 31-27. 11 Sec. 31-30 Notice of hearing. 12 (a) Every notice of hearing on a notice and compliance order shall contain the date, time, and 13 place at which the hearing shall be conducted by the Administrative Hearing Officer. 14 (1) The notice of hearing shall state that the purpose of the hearing will be 15 detemlination on the existence of the Code violations and/or other public nuisance 16 described in the notice and compliance order, on the compliance with the notice 17 and compliance order, on the notice of summary abatement, and on the adoption 18 of an administrative order, including imposition of civil penalties and administrative 19 costs pursuant to the article. 20 (2) The notice and compliance order shall be attached to the notice of hearing. 21 (b) The hearing shall be set for a date not less than fifteen (15) days nor more than sixty 22 (60) days from the date of service of the notice or hearing unless the code enforcement 23 ot1icer determines that the matter is urgent or that good cause exists for an extension 24 of time. 25 (c) This hearing serves the full opportunity of a person subject to a notice and compliance 26 order to object to the determination that a Code violation has occurred and/or that the 27 violation has continued to exist or that a public nuisances exists If any person subject 28 A:\CODENFRC.ClT 23 1 to a notice and compliance order, pursuant to this article, fails to appear at this heariI 2 such non-appearance shall constitute a failure to exhaust administrative remedies. 3 Sec. 31-31 Hearings -- findings, decision, and administrative order. 4 (a) At the place and time set forth in the notice of hearing, the Administrative Hearing Officer 5 shall conduct a hearing concerning the Code violation, and/or other public nuisance 6 described in the notice and compliance order issued pursuant to Section 31-26 or the 7 notice of summary abatement pursuant to Section 31-41. 8 (b) The Administrative Hearing Officer shall consider any written or oral evidence, regarding 9 the violation and/or public nuisance described in the notice and compliance order, and 10 compliance therewith, by the responsible person and/or by the record property owner. 11 (c) Within thirty (30) days following the conclusion of the hearing, the Administrative Hearing 12 Ofticer shall issue a written decision containing factual findings and determinations 13 referenced by supporting evidence, regarding: 14 (I) The existence of each Code violation and/or public nuisance described in " , 15 notice and compliance order. 16 (2) The failure of the responsible person and/or record property owner to take 17 corrective action within the time period required in the notice and compliance 18 order. 19 (d) If the Administrative Hearing Officer finds by a preponderance of the evidence that a 20 Code violation and/or other public nuisance has occurred, and that the Code violation 21 and/or other public nuisance was not corrected within the time period specified in the 22 notice and compliance order, the Administrative Hearing Officer's decision shall include 23 an administrative order as specified in Section 31-32. 24 (e) If the Administrative Hearing Officer finds by a preponderance of the evidence that a Code 25 violation and/or other public nuisance occurred that required summary abatement, the 26 Administrative Hearing Officer's decision shall include an administrative order as specified 27 in Section 31-32. 28 A:\CODENFRC.CIT 24 T - ~- . 1 (f) If the Administrative Hearing Officer finds that no Code violation and/or other public 2 nuisance has occurred or that the Code violation and/or other public nuisance was 3 corrected within the time period specified in the notice and compliance order, the 4 Administrative Hearing Officer shall issue a finding of those facts. 5 (g) The Administrative Hearing Officer shall submit the decision to the Town Clerk, and serve 6 a copy on the responsible party and/or record property owner. The decision is final upon 7 the date it is mailed by first-class mail, postage prepaid, including a copy of the affidavit 8 or certificate of mailing, to the responsible person and/or record property owner as 9 provided in Code of Civil Procedure Section 1094.6(b) 10 (h) The Administrative Hearing Officer's decision shall include a notice to the responsible 11 party and/or record property owner that the decision (and administrative order if 12 applicable) is subject to judicial review according to the provision and the time limits 13 set forth in Code ofCivij Procedure Section 1094.6. 14 Sec. 31-32 Administrative order. IS If the Administrative Hearing Officer determines that a Code violation and/or other public 16 nuisance occurred which was not corrected within the time period specified in the notice and compliance 17 order, the Administrative Hearing Officer's decision shall include an administrative order which imposes 18 any or all of the following 19 (a) An order to correct or abate, including a compliance date for completion if compliance 20 has not been achieved by the date of the hearing; 21 (b) An order authorizing the Code Enforcement Officer to correct or abate, by use of Town 22 employees or a Town contractor, and to enter upon the private property where such 23 Code violation and/or other public nuisance exists, for purposes of correcting and abating 24 same, if the responsible person and/or record property owner fails to do so by the 25 compliance date; 26 (c) Administrative civil penalties as provided in Section 31-33. 27 (d) Administrative costs as provided in Section 31-34. 28 A\CODENFRC.crr 25 1 Sec. 31-33 Administrative civil penalties. * 2 (a) The Administrative Hearing Officer may impose administrative civil penalties for th~ 3 violation of any provision of this Code, or the existence of a public nuisance, in an 4 amount not to exceed a maximum of One Thousand Dollars ($1,000.00) per day for 5 each ongoing Code violation, or other public nuisance, except that the total administrative 6 penalty shall not exceed One Hundred Thousand Dollars ($100,000.00), exclusive of 7 administrative costs, interest and restitution for compliance re-inspections, for any related 8 series of Code violations or conditions constituting a public nuisance. 9 (b) In determining the amount of the administrative penalty, the administrative hearing 10 officer may take any or all of the following factors into consideration: 11 (I) The duration of the Code violation and/or other public nuisance; 12 (2) The frequency, recurrence and number of Code violations and/or other public 13 nuisance conditions related or unrelated, by the same responsible person and/or 14 record property holder; 15 (3) The seriousness of the violation; 16 (4) The good faith efforts of the responsible person and/or record property owner 17 to come into compliance; 18 (5) The economic impact of the penalty on the responsible party and/or record 19 property holder; 20 (6) The impact of the Code violation and/or other public nuisance on the community 21 and/or general public; 22 (7) Such other factors as justice may require. 23 (c) Administrative civil penalties imposed by the Administrative Hearing Officer shall accrue 24 from the date specified in the notice and compliance order and shall cease to accrue 25 on the date the violation and/or other public nuisance is corrected as determined by 26 the Code Enforcement Officer or the Administrative Hearing Officer. 27 28 A:\CODENFRC.CIT 26 - -_..~- --------_.~ ---- -..-------- -- ---~- 1 (d) The Administrative Hearing Officer may suspend the imposition of applicable 2 administrative civil penalties for any period of time during which: 3 (1) The responsible party and/or record property owner has filed for necessary 4 permits; 5 (2) Such permits are required to achieve compliance; and 6 (3) Such permit applications are actively pending before the Town, state or other 7 appropriate governmental agency. 8 (e) Administrative civil penalties assessed by the Administrative Hearing Officer shall be 9 due by the date specified in the administrative order, which shall be no later than ninety 10 (90) days from the date of such administrative order. 11 (t) Administrative civil penalties assessed by the Administrative Hearing Officer are a debt 12 owed to the Town and, in addition to all other means of enforcement, if the Code violation 13 and/or other public nuisance is located on real property, the penalty may be enforced by 14 means of a lien against the real property on which the violation and/or other public 15 nuisance occurred. 16 (g) If the Code violation and/or other public nuisance is not corrected as specified in the 17 Administrative Hearing Officer's administrative order, administrative penalties shall 18 continue to accrue on a daily basis until the violation and/or other public nuisance is 19 corrected, subject to the maximum amount set forth in Section 31-33(a). 20 (h) If the violator gives written notice to the Code Enforcement Officer that the violation 21 has been corrected and if the Code Enforcement Officer finds that compliance has been 22 achieved, the Code Enforcement Officer shall deem the date the written notice was 23 postmarked or personally delivered to the Code Enforcement Officer or the date of the 24 final inspection, whichever first occurred, to be the date the violation was corrected. 25 If no written notice is provided to the Code Enforcement Officer, the violation and/or 26 other public nuisance will be deemed corrected on the date of the final inspection. 27 28 A\CODENFRC.CIT 27 1 'For state law authorizing Towns to impose civil fmes and penalties, not exceeding One Thousand Dollars ($1,000.00) per 2 violation, set forth in 31-33(0), see Gov. C. S 36901. 3 Sec. 31-34 Administrative costs. 4 (a) The Administrative Hearing Officer shall assess administrative costs against the 5 responsible person and/or record property owner when such officer finds that a violation 6 and/or other public nuisance has occurred and that compliance has not been achieved by 7 the compliance date specified in the notice and compliance order. 8 (b) The administrative costs may include any and all costs incurred by the Town in connection 9 with the matter before the Administrative Hearing Officer including, but not limited to, 10 the costs for the Administrative Hearing Officer's services, costs of investigation, staffing 11 costs incurred in preparation for the hearing and for the hearing itself, costs for all re- 12 inspections necessary to enforce the notice and compliance order, and the costs of actual 13 abatement if undertaken by the Town. i:iI. (c) Administrative costs assessed by the Administrative Hearing Officer shall be due by the 14 15 date specified in the administrative order, which shall be no later than ninety (90) a 16 from the date of such administrative order. 17 Sec. 31-35 Supplemental hearing, decision and administrative order. 18 Following issuance of an Administrative Hearing Officer's decision and administrative order, the 19 Code Enforcement Officer may schedule a supplemental hearing before the same or another 20 Administrative Hearing Officer, for the purpose of obtaining a supplemental decision and administrative 21 order, which may include the confirmation or imposition of administrative civil penalties or administrative 22 costs applicable to continuation of the Code violation and/or other public nuisance following the date of 23 the original hearing with respect to a notice and compliance order. The supplemental hearing date, notice 24 of supplemental hearing, supplemental hearing procedures, and the contents, submission, and service of 25 the supplemental decision and administrative order shall be consistent with the provision of Sections 31- 26 27,31-29,31-30,31-31,31-32,31-33,31-34. 27 28 A\CODENFRC.CIT 28 '- .-.".. . -- - 1 Sec. 31-36 Failure to comply with administrative order. 2 Failure to pay the assessed administrative penalties and administrative costs specified in the 3 administrative order of the Administrative Hearing Officer may be enforced as: 4 (a) A personal obligation of the violator; and/or 5 (b) If the violation is in connection with real property, a code enforcement assessment lien 6 upon the real property The code enforcement assessment lien shall remain in effect 7 until all of the administrative civil penalties, interest and administrative costs are paid 8 in full 9 Sec. 31-37 Right of judicial review. 10 Any decision and administrative order or supplemental decision and administrative order of an 11 Administrative Hearing Officer shall be subject to judicial review in the Marin County Courts by filing 12 with the court a petition for writ of mandate pursuant to the provision and time limits set in the Code of 't 13 Civil Procedure Section 1094.6. .i ~ 14 Sec. 31-38 Recovery of administrative civil penalties and administrative costs. 15 The Town may collect the assessed administrative civil penalties and administrative costs by use 16 of all available means, including but not exclusive to the code enforcement assessment lien as provided 17 in Section 31-42 or by civil action in which the Town may recover its reasonable attorneys' fees as 18 provided in Section l-10. 19 Sec. 31-39 Report or compliance after administrative order. 20 If the Code Enforcement Officer determines that compliance has been achieved after a compliance 21 order has been sustained by the Administrative Hearing Officer, the Code Enforcement Officer shall file 22 a report to the Town department of proper jurisdiction and to the Administrative Hearing Officer, 23 indicating that compliance has been achieved. 24 Sec. 31-40 Compliance dispute. 25 (a) If the Code Enforcement OtTIcer does not file a report pursuant to Section 31-39 above, 26 a violator who believes that compliance has been achieved may request a compliance 27 hearing before the Administrative Hearing Officer by filing a request for a hearing with 28 A\CODENFRc.cn 29 1 the Town Clerk. 2 (b) The hearing shall be noticed and conducted in the same manner as a hearing on a nOl1"e 3 and compliance order provided in Sections 31-30 through 31-31 of this article. 4 (c) The Administrative Hearing Officer shall determine if compliance has been achieved and, 5 if so, when it was achieved. 6 Sec. 31-41 Summary abatement. 7 (a) Notwithstanding any of the provisions of this article, a public nuisance which is an 8 emergency and which, ifunabated, constitutes a threat to the public safety, health and lor 9 welfare may be summarily abated upon the determination of the Town Manager or his 10 designee that such nuisance exists and does, in fact, constitute a threat to the public safety, 11 health and welfare. Such determination of the above public nuisance shall not be subject 12 to the procedures set forth in sections 31-26 and 31-31 of this Code. 13 (b) Upon such determination, the Town Manager or his designee may enter upon private 14 property for the purpose of abating the public nuisance. Should it be practicable to sell 15 or salvage any material procured from such abatement, it may be sold at public or pri .c 16 sale at the best price obtainable, and an itemized account of the proceeds shall be 17 maintained by the Town Manager. Such proceeds, if any shall be deposited in a general 18 fund of the Town and shall be credited against the cost of abatement as provided for in 19 this article. 20 (c) The Town Manager or his designee shall calculate the cost of summary abatement, 21 including but not exclusive to, costs of inspection and the costs of actual summary 22 abatement undertaken by the Town. 23 (d) The Town Manager shall submit the outstanding balance of summary abatement costs to 24 the Town Clerk. The Town Clerk shall serve a notice of summary abatement upon the 25 responsible party andlor record property owner as provided in Code of Civil Procedure 26 Section 1094.6(b). The notice of summary abatement shall contain the following 27 information: 28 A\CODENFRC.CIT 30 -- - _. 1 (1) The date and location of the public nuisance summarily abated. 2 (2) The section and description of the public nuisance summarily abated. 3 (3) The action taken by the Town to summarily abate the public nuisance. 4 (4) A statement that summary abatement costs are being imposed on the responsible 5 person and/or record property owner, that the summary abatement costs are due 6 within thirty (30) days from the date of service of the notice of summary 7 abatement, and that the summary abatement costs may be collected judicially, or 8 by special assessment or tax collection, as provided by this article. 9 (5) Either a copy of this article, or an explanation that the responsible person and/or 10 record property owner may contest the existence of the public nuisance and/or that 11 the costs of summary abatement are unreasonable, by filing a request with the 12 Town Clerk within ten (10) days from the date of service of the notice of summary 13 abatement, for an administrative hearing before an Administrative Hearing Officer 14 (e) Method of service of the notice of hearing, the notice of hearing and the administrative 15 hearing shall be in accordance with Sections 31-27,31-30,31-31. 16 (I) rfthe Administrative Hearing Officer determines that a Code violation and/or other public 17 nuisance occurred which justified summary abatement, the Administrative Hearing 18 Officer's decision shall include an administrative order which imposes any or all of the 19 following: 20 (1) Summary abatement costs as provided in this Section. 21 (2) Administrative civil penalties as provided in Section 31-33. 22 (3 ) Administrative costs as provided in Section 31-34. 23 (g) The Code Enforcement Oflicer may request a supplemental hearing, decision and 24 administrative order as provided in Section 31-35. 25 (h) Any failure to comply with the administrative order may be enforced as provided by 26 Section 31-36. 27 28 A\CODENFRC.CIT 31 1 (i) The administrative order or supplemental decision and administrative order are subject 2 to judicial review as provided by Section 31-37. 3 G) Recovery of the summary abatement costs, administrative civil penalties and administrative 4 costs may recovered as provided in Section 31-38. 5 Sec. 31-42 Code enforcement assessment lien; tax collection. * 6 (a) Whenever any administrative civil penalties and/or administrative costs imposed in an 7 Ad ministrative Hearing Officer's decision and administrative order or supplemental 8 decision and administrative order have not been paid in full when due, and a timely writ 9 of mandate has not been filed or has been filed but not been successful, the amounts owing 10 may constitute a code enforcement assessment lien and special assessment against the real 11 property on which the code violations and/or other public nuisance occurred. 12 (b) Whenever any past due administrative citation fine and/or late payment charge of an 13 administrative citation fine, pursuant to Article IV, have not been paid in full when due, 14 and a timely writ of mandate has not been filed or has been filed but not been successful, 15 the amounts owing may constitute a code enforcement assessment lien and spe, 16 assessment against the real property on which the code violations or other public nuisance 17 occurred. 18 (c) The Town Clerk may cause to be recorded in the County Recorder's Office a notice 19 of code enforcement assessment lien against the subject real property. Such notice 20 of code enforcement assessment lien shall specifY the amount of the lien, the name of 21 the Town ofTiburon on whose behalf the lien is imposed, the street address, legal 22 description, and assessor's parcel number of the property on which the lien is imposed, 23 the name and address of the record property owner, and the date of the Administrative 24 Hearing Officer's decision and administrative order to which the lien relates. Upon 25 recordation of such code enforcement assessment lien, it shall attach as a lien against 26 such real property, and shall have the same effect and priority as recordation of an 27 abstract of judgment. 28 A\CODENFRC.CIT 32 - --~--- - --"--.-- ~- 1 (d) In addition to the foregoing, the Town Clerk may file a certified copy of the notice of 2 code enforcement assessment lien in the Office of the County Treasurer-Tax Collector, 3 whereupon it shall be the duty of the County Treasurer-Tax collector to add the unpaid 4 amount as a special assessment to the next regular tax bills levied against the property for 5 municipal purposes. Thereafter the amounts shall be collected at the same time and in the 6 same manner as ordinary municipal taxes are collected, and shall be subject to the same 7 penalties and the same procedure under foreclosure and sale in case of delinquency as 8 provided for ordinary municipal taxes. 9 (e) A notice of assessment lien shall be issued to the property owner and shall include notice 10 by certified mail, to the property owner, if the property owner's identity can be determined 11 from the county assessor's or county recorder's records. The notice of assessment lien 12 shall be given at the time of imposing the assessment and shall specifY that the property 13 may be sold after three years by the tax collector for unpaid delinquent assessments. The 14 tax collector's power of sale shall not be affected by the failure of the property owner to 15 receive notice. 16 (f) Upon receiving a repOIt from the Director of Finance that payment in full has been 17 received by the Town of the amount specified in the notice of code enforcement 18 assessment lien, the Town Clerk shall either record a notice of satisfaction of the code 19 enforcement assessment lien with the County Recorder, and file a certified copy of same 20 with the County Treasurer-Tax Collector, or provide the property owner or financial 21 institution with a notice of satisfaction so that they may record it with the Office of County 22 Recorder and file it with the County Treasurer-Tax Collector. Recordation of such notice 23 of satisfaction shall cancel the Town's code enforcement assessment lien and assessment 24 against the property. 25 *For state la\v auLhmizmg lowns Lo illlpliSC code cnlorcL:!TIcnt assessment liens, see Gov. c. 99 38773.5 and 53069.4(d). 26 27 28 A\CODENFRC.CIT 33 __ _0-- 1 SECTION 9. SEVERABILITY. 2 If any section, subsection, clause, sentence, or phrase of this Ordinance is for any reason held .~ 3 be invalid or unconstitutional by a decision of a Court of competent jurisdiction, such decision shall not 4 affect the validity of the remaining portions of the Ordinance. The Town Council of the Town ofTiburon 5 hereby declares that it would have passed this Ordinance, any section, subsection, sentence, clause or 6 phrase thereof, irrespective of the fact that anyone or more sections, subsections, sentences, clauses, or 7 phrases may be declared invalid or unconstitutional. 8 9 SECTION 10. EFFECTIVE DATE. 10 This Ordinance shall take effect and be in force thirty (30) days after the date of passage. 11 Pursuant to the provisions of Government Code Section 36933, a summary of this ordinance shall be 12 prepared by the Town Attorney. At least five (5) days prior to the Council meeting at which adoption ! 13 of the ordinance is scheduled, the Town Clerk shall (I) publish the summary, and (2) post in the office 14 of the Town Clerk a certified copy of this ordinance. Within fifteen (15) days after adoption of this 15 ordinance, the Town Clerk shall (I) publish the summary, and (2) post in the office of the Town C 16 a certified copy of the full text of the ordinance along with the names of those Council members voting 17 for and against the ordinance. 18 This Ordinance was introduced at a regular meeting of the Town Council of the Town ofTiburon 19 on July 15, 1998, and was adopted at a regular meeting of the Town Council of the Town ofTiburon on 20 August 5, 1998, by the following vote: 21 AYES: COUNCILMEMBERS: Bach, Gram, Hennessy, Matthews, Thompson 22 NOES: COUNCILMEMBERS: None ABSENT: COUNCILMEMBERS: None 23 -;z4 S. 7!!~ 24 H~ MATTHEWS, MAYOR 25 A~ TOWN OF TIBURON 26 27 Dl . CKANE, T W N CLERK 28 A\CODENFRC.CIT 34 ---. -- --- ----- ..-