HomeMy WebLinkAboutOrdinance 460 CERTIFICATION
I, Marcia McClure Torgerson, C.M.C., City Clerk of the City of
Atascadero, hereby certify that the foregoing is the true and correct original of
Ordinance No. 460 adopted by the Atascadero City Council at a regular meeting
thereof held on September 14, 2004 and that it has been duly published
pursuant to State Law.
DATED: Z 6—U /Z�✓I''��.'�-> y `�� C 7J L
Marcia McClure Torgerson, C. C.
City Clerk
City of Atascadero, California
ORDINANCE NO. 460
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ATASCADERO, CALIFORNIA, REPEALING CHAPTER 3, SECTIONS 1-
3.01 AND 1-3.04 OF TITLE 1 OF THE ATASCADERO MUNICIPAL CODE
RELATING TO PENALTY PROVISIONS, REPEALING IN ITS
ENTIRETY CHAPTER 6 OF TITLE 1 OF THE ATASCADERO
MUNICIPAL CODE RELATING TO ADMINISTRATIVE CITATIONS,
FINES AND HEARING PROCEDURES, AND ADOPTING A NEW TITLE
12 OF THE ATASCADERO MUNICIPAL CODE RELATING TO
VIOLATIONS, PENALTIES, ADMINISTRATIVE CITATIONS AND
HEARING PROCEDURES
WHEREAS, the Atascadero City Council believes that enforcement of the Atascadero
Municipal Code, other Ordinances adopted by the City, conditions of entitlements and terms and
conditions of City agreements are matters of local concern and serve important public purposes;
WHEREAS, this new Title 12 is designed to protect the public health, safety and welfare
of the citizens of the City of Atascadero;
WHEREAS, the City Council has determined that it is in the best interests of the City to
gain compliance with the Municipal Code and State Codes, Ordinances and regulations in a
timely and efficient manner;
WHEREAS, this Title will provide a method to hold parties responsible when they fail
or refuse to comply with the provisions of the Municipal Code, Ordinances, Agreements or terms
and conditions on entitlements in the City of Atascadero;
WHEREAS, this Title will also provide for an administrative process to appeal the
imposition of administrative citations and fines;
WHEREAS, the City Council believes that this will minimize the expense and delay
where the primary remedies are to pursue responsible parties in the civil or criminal justice
system.
WHEREAS, Government Code section 36901 authorizes the City to impose fines,
penalties, and forfeitures for violations of its ordinances;
WHEREAS, Government Code section 36900 authorizes the City to make a violation of
a City ordinance either a misdemeanor or infraction;
WHEREAS, the City has determined that authorizing the City Attorney prosecutorial
discretion in prosecuting violations of the Atascadero Municipal Code as either infractions or
misdemeanors, in the interests of justice, will result in the more effective and efficient
administration of justice;
City of Atascadero
Ordinance No.460
Page 2 of 10
WHEREAS, Government Code section 53069.4 authorizes the City to issue
administrative citations for violations of the City's Ordinances; and
WHEREAS, the City has determined that the issuance of administrative citations tends
to benefit real property located within the City by increasing the likelihood that public nuisances
will be removed, thereby enhancing and protecting the health, safety and welfare of the
community.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ATASCADERO
HEREBY ORDAINS AS FOLLOWS:
SECTION 1: Section 1-3.01 of Chapter 3 of Title 1 of the Atascadero Municipal Code is
hereby repealed in its entirety.
SECTION 2: Section 1-3.04 of Chapter 3 of Title 1 of the Atascadero Municipal Code is
hereby repealed in its entirety.
SECTION 3: Chapter 6, Title 1 of the Atascadero Municipal Code is hereby repealed in
its entirety.
SECTION 4: A new Title 12 of the Atascadero Municipal Code is hereby added to read
as follows:
Title 12
CODE ENFORCEMENT
CHAPTERS:
1 Violations,Penalties and Enforcement
2 Administrative Citations
Chapter 1
Violations,Penalties and Enforcement
Sections:
12-1.01 Intent to secure compliance
12-1.02 Public Nuisance
12-1.03 Violations a Misdemeanor or Infraction
12-1.04 Infraction
12-1.05 Misdemeanor
12-1.06 Civil action
12-1.07 Administrative Citation
City of Atascadero
Ordinance No.460
Page 3 of 10
Chapter 1—Violations,Penalties and Enforcement
12-1.01 Intent to secure compliance
The City Council of the City of Atascadero intends to secure compliance with the
provisions of this Code, including its adopted codes and ordinances. Each method set forth
herein is intended to be mutually exclusive and does not prevent concurrent or consecutive
methods being used to achieve compliance against continuing violations. Each and every day any
such violation exists, or any portion thereof, constitutes a separate and distinct offense.
Notwithstanding any other provision of the Code, each violation of the provisions of this Code
may be enforced alternatively or cumulatively.
12-1.02 Public Nuisance
In addition to the penalties provided in this Chapter, or elsewhere in this Code, or in any
Code adopted by reference by this Code, any condition caused or permitted to exist in violation
of any of the provisions of this Code, or its adopted Codes, shall be deemed a public nuisance
and may be abated by the City, and each and every day or portion thereof that such condition
continues shall constitute a separate and distinct offense.
12-1.03 Violations a Misdemeanor or Infraction
No person shall violate any provision or fail to comply with any of the requirements of
this Code, including its adopted codes. Each such person shall be guilty of a separate and
distinct offense for each and every day, or any portion thereof, of which any violation of any
provision of this Code is committed, continued, or permitted by such person, and shall be
punishable accordingly. Every act prohibited, declared unlawful, or declared substandard or
unsafe and every failure to perform an act made mandatory, shall constitute either a
misdemeanor or an infraction, at the discretion of the City Attorney.
12-1.04 Infraction.
Any person violating any of the provisions or failing to comply with any of the
mandatory requirements of this Code may be prosecuted for an infraction. Police officers or non-
safety employees designated by Atascadero Municipal Code section 12-2.02, may issue written
citations for infractions. Any person convicted of an infraction under the provisions of this Code
shall be punished either by fines as is specified in the currently adopted Uniform Infraction Bail
Schedule used by the San Luis Obispo County Courts, or where no fine is specified therein by:
(a) A fine not exceeding one hundred dollars ($100.00) for a first violation;
(b) A fine not exceeding two hundred dollars ($200.00) for a second violation of
the same provision within one year•,
(c) A fine not exceeding five hundred dollars ($500.00) for each additional
violation of the same provision within one year.
12-1.05 Misdemeanor.
Any person violating any of the provisions or failing to comply with any of the
mandatory requirements of this Code may be prosecuted for a misdemeanor. Written citations for
misdemeanors may be issued by police officers or by non-safety employees designated by
Atascadero Municipal Code section 12-2.02. Any person convicted of a misdemeanor under the
provisions of this Code shall be punished by a fine not exceeding .one thousand dollars
($1000.00) or imprisonment for a term not exceeding six months, or by both such fine and
imprisonment.
City of Atascadero
Ordinance No.460
Page 4 of 10
12-1.06 Civil Action.
The City Attorney, by and at the request of the City Council or City staff, may institute
an action in any court of competent jurisdiction to restrain, enjoin or abate the condition(s) found
to be in violation of the provisions of this Code, as provided by law. In any civil action
commenced by the City to abate a public nuisance, to enjoin violation of any provision of this
Code, or to collect a civil debt owing to the City, the City shall be entitled to recover from the
defendant in any such action all costs incurred therein, including reasonable attorneys' fees and
costs of suit.
12-1.07 Administrative Citation.
Upon a finding by the city official vested with the authority to enforce the various
provisions of this Code that a violation exists, he or she may issue an administrative citation
under the provisions of Chapter 2 of Title 12.
CHAPTER 2
Administrative Citations
Sections:
12-2.01 Definitions
12-2.02 Authority
12-2.03 Legislative Findings and Statement of Purpose
12-2.04 Service Procedures
12-2.05 Contents of Notice
12-2.06 Satisfaction of Administrative Citation
12-2.07 Appeal of Administrative Citation
12-2.08 Hearing Officer
12-2.09 Hearing Procedure
12-2.10 Advance Deposit Hardship Waiver
12-2.11 Hearing Officer's Decision
12-2.12 Failure to Pay Fines
12-2.13 Right to Judicial Review
12-2.14 Notices
12-2.01 Definitions
(a) Responsible Person shall mean any individual or legal entity who is the owner,
tenant, co-tenant, lessee, sublessee, occupant or other person with any right to possession of the
real property, owner or authorized agent of any business, company, or entity, or the parent or the
legal guardian of any person under the age of eighteen (18) years, who causes, permits or
maintains a violation of the Atascadero Municipal Code, its adopted codes, or applicable State
Code.
(b) Enforcement Officer shall mean any officer or employee with the authority to
enforce the Atascadero Municipal Code, or applicable State Codes as provided in Section 12-
2.02.
(c) Administrative Citation shall mean the written notice provided to a Responsible
Person to inform that person of a violation of the Atascadero Municipal Code, its adopted codes,
or applicable State Code.
City of Atascadero
Ordinance No.460
Page 5 of 10
(d) Non-Emergency Health or Safety Violation shall mean a violation of any
building, plumbing, electrical or other similar structural or zoning ordinance which does not
create an immediate danger to health or safety.
12-2.02 Authority
(a) Any Responsible Person violating any Non-Emergency Health or Safety
Violation provision of the Atascadero Municipal Code, its adopted codes, or applicable State
Code, may be issued an Administrative Citation by an Enforcement Officer as provided in this
Chapter. A violation of this Code includes, but is not limited to, all violations of the Atascadero
Municipal Code, the Uniform Codes adopted by the City Council, failing to comply with any
condition imposed by any entitlement, permit, agreement or environmental document issued or
approved under the provisions of this Code.
(b) Each and every day or portion thereof that a violation of the Municipal Code,
adopted code or applicable State Code exists, constitutes a separate and distinct offense.
(c) A civil fine shall be assessed by means of an Administrative Citation issued by an
Enforcement Officer and shall be payable directly to the City of Atascadero, Administrative
Services Office, located at 6905 El Camino Real, Suite#6, Atascadero, CA 93422.
(d) Fines shall be assessed in the amounts specified by Resolution of the City
Council, or where no amount is specified:
(1) A fine not exceeding one hundred dollars ($100.00) for a first violation;
(2) A fine not exceeding two hundred dollars ($200.00) for a second violation of the
same provision or permit within one year from the date of the first violation;
(3) A fine not exceeding five hundred dollars ($500.00) for each additional violation
of the same ordinance or permit within one year from the date of the first
violation.
12-2.03 Legislative Findings and Statement of Purpose
(a) The City Council hereby finds that there is a need for an alternative method of
code enforcement to the traditional civil, criminal or administrative abatement actions, to effect
compliance with the Municipal Code, adopted codes and applicable State Codes. The City
Council further finds that an appropriate alternative method of enforcement for Non-Emergency
Health or Safety Violations is an Administrative Citation Program as authorized by Government
Code section 53069.4.
(b) The procedures established in this Chapter shall be in addition to criminal, civil,
administrative abatement, or any other legal remedy established by law, which may be pursued
to address violations of the Municipal Code, adopted codes or applicable State Codes.
(c) Use of this Chapter shall be at the sole discretion of the City.
12-2.04 Service Procedures
(a) An Administrative Citation on a form approved by the City Manager may be
issued to the responsible person by an Enforcement Officer for violations of the Municipal Code
or applicable State Code, in the following manner:
(1) Personal Service. In any case where an Administrative Citation is issued:
i. The Enforcement Officer shall attempt to locate and personally serve
the Responsible Person and, if possible, obtain the signature of the
Responsible Person on the Administrative Citation.
City of Atascadero
Ordinance No.460
Page 6 of 10
ii. If the Responsible Person served refuses or fails to sign the
Administrative Citation, the failure or refusal to sign shall not affect
the validity of the Administrative Citation or of subsequent
proceedings.
(2) Service of Citation by Mail. If the Enforcement Officer is unable to
locate the Responsible Person, the Administrative Citation shall be mailed to the
Responsible Person by certified mail, postage prepaid with a requested return
receipt. Simultaneously, the citation may be sent by first class mail. Service by
mail shall be sent to the Responsible Person's address as shown on public records
or as known to the City. If the Administrative Citation is sent by certified mail
and returned unsigned, then service shall be deemed effective pursuant to first
class mail, provided the citation sent by the first class mail is not returned.
(3) Service of Citation by Posting Notice. If the Enforcement Officer does
not succeed in personally serving the Responsible Person, or by certified mail or
regular mail, the Enforcement Officer may post the Administrative Citation at a
conspicuous location on any real property within the City in which the City has
knowledge that the Responsible Person has a legal interest, and such posting shall
be deemed effective service. Service shall be deemed effective pursuant to posting
on the date that it is actually posted.
12-2.05 Contents of Notice
(a) Each Administrative Citation shall contain the following information:
(1) Date, approximate time, and address or definite description of the
location where the violation(s) was observed;
(2) The Code sections or conditions violated and a description of the
violation(s);
(3) A description of the action required to correct the violation;
(4) An order to the responsible person to correct the violations within the
time specified, and an explanation of the consequences of failure to
correct the violation(s);
(5) The amount of the fine for the violation(s);
(6) An explanation of how the fine shall be paid, the time period by which it
shall be paid, and the place to which the fine shall be paid;
(7) An order prohibiting the continuation or repeated occurrence of the
Code violation described in the Administrative Citation;
(8) Identification of rights of appeal, including the time within which the
Administrative Citation may be contested and the place to obtain a
Notice of Appeal and Request for Hearing form to contest the
Administrative Citation; and
(9) The name and signature of the Enforcement Officer and, if possible, the
signature of the Responsible Person.
12-2.06 Satisfaction of Administrative Citation
(a) Upon receipt of an Administrative Citation, the Responsible Person must do the
following:
(1) Pay the fine to the City within fifteen (15) calendar days from the
correction date on the Administrative Citation. All fines assessed shall
be payable to the City of Atascadero, Administrative Services
Department. Payment of a fine shall not excuse or discharge the failure
City of Atascadero
Ordinance No.460
Page 7 of 10
to correct the violation(s) nor shall it bar further enforcement action by
the City;
(2) Remedy the violation(s), if the violation(s) is of such a nature that it
can be remedied. If the violation(s) is corrected before the corrective
date provided on the Administrative Citation, no fine shall be imposed.
(b) If the Responsible Person fails to correct the violation(s) set forth in the
Administrative Citation, subsequent Administrative Citations may be issued for
the same violation(s). The amount of the fine for failure to correct the violation
shall increase at the rate specified in Section 12-2.02.
12-2.07 Appeal of Administrative Citation
(a) Any recipient of an Administrative Citation may contest that there was a violation
of the Atascadero Municipal Code or that he or she is the Responsible Person
by completing a Notice of Appeal and Request for Hearing form and filing it at
the City within fifteen (15)calendar days from the date of issuance of the
Administration Citation,together with an advance deposit of the total amount of
the fine, or the timely filing of a Request for an Advance Deposit Hardship
Waiver pursuant to Section 12-2.10. Any Administrative Citation fine, which has
been deposited, shall be refunded if it is determined, after a hearing, that the
person charged in the Administrative Citation was not responsible for the
violation(s) or that there was no violation(s) as charged in the Administrative
Citation.
(b) In addition to the requirements listed in Section 12.07, subdivision (a), any appeal
of the Administrative Citation must include a detailed written explanation as to
the grounds for appeal of the Administrative Citation.
12-2.08 Hearing Officer
(a) The Atascadero City Manager shall designate the hearing officer for the
Administrative Citation hearing. The hearing officer shall not be an Atascadero
City employee.
(b) The employment, performance evaluation, compensation or benefits of the
hearing officer, if any, shall not be directly or indirectly conditioned upon the
amount of Administrative Citation fines upheld by the hearing officer.
12-2.09 Hearing Procedure
(a) No hearing to contest an Administrative Citation before a hearing officer shall be
held unless and until a Notice of Appeal and Request for Hearing form has been
completed and timely filed, and either the total amount of the fine has been timely
deposited in advance with the City, or, as indicated on the Notice of Appeal and
Request for Hearing form, that a Request for an Advance Deposit Hardship
Waiver has been timely filed pursuant to Section 12-2.10.
(b) The hearing before the hearing officer shall be set for a date that is not less than
fifteen (15) and not more than sixty(60) calendar days from the date that the
Notice of Appeal and Request for Hearing form is filed in accordance with the
provisions of this Chapter. The person requesting the hearing shall be notified of
the time and place set for the hearing at least ten (10)calendar days prior to the
date of the hearing.
City of Atascadero
Ordinance No.460
Page 8 of 10
(c) The hearing officer shall only consider evidence that is relevant to whether the
violation(s) occurred and whether the Responsible Person has caused, maintained
or allowed the violation(s) of the Municipal Code, adopted code or other
applicable State Code on the date(s) specified in the Administrative Citation.
(d) The person contesting the Administrative Citation shall be given the opportunity
to testify and present witnesses and evidence concerning the Administrative
Citation.
(e) The failure of any recipient of an Administrative Citation to appear at the
Administrative Citation hearing shall constitute a forfeiture of the fine and a
failure to exhaust their administrative remedies.
(t) The Administrative Citation and any additional documents submitted by the
Enforcement Officer shall constitute prima facie evidence of the respective facts
contained in those documents.
(g) If the Enforcement Officer submits an additional written report concerning the
Administrative Citation to the hearing officer for consideration at the hearing,
then a copy of this report also shall be served by first class mail on the person
requesting the hearing at least five (5) days prior to the date of the hearing.
(h) At least ten (10) days prior to the date of the hearing, the recipient of an
Administrative Citation shall be provided with copies of the citations,reports and
other documents submitted or relied upon by the Enforcement Officer. No other
discovery is permitted. Formal rules of evidence shall not apply.
(i) The hearing officer may continue the hearing and request additional information
from the Enforcement Officer or the recipient of the Administrative Citation prior
to issuing a written decision.
(j) The hearing officer is not required to provide transcriptions of hearings, but is
required to make available tapes of hearings for a fee.
12-2.10 Advance Deposit Hardship Waiver
(a) Any person who intends to request a hearing to contest that there was a violation
of the Code or that he or she is the Responsible Party and who is financially
unable to make the advance deposit of the fine may file a Request for an Advance
Deposit Hardship Waiver.
(b) The request shall be filed with the Administrative Services Department on a
Request for an Advance Deposit Hardship Waiver form, available from the
Administrative Services Department, within five (5) days of the date of the
issuance of the Administrative Citation.
(c) The requirement of depositing the full amount of the fine as described in Section
12-2.07(a) shall be stayed unless or until the Director of Administrative Services
makes a determination not to issue the advance deposit hardship waiver.
(d) The Director may waive the requirement for advance deposit only if the cited
party submits to the Director a declaration under penalty of perjury, supported by
evidence, that shows to the Director's satisfaction that the person is financially
unable to deposit the total amount of the fine in advance of the hearing.
(e) If the Director determines not to issue an advance deposit hardship waiver, the
cited party shall remit the deposit to the City within five (5) days of the date of
that decision or fifteen (15) days from the date of issuance of the Administrative
Citation, whichever is later.
City of Atascadero
Ordinance No.460
Page 9 of 10
(f) The Director shall list his/her reasons for granting or not granting an advance
deposit hardship waiver in writing and serve it on the cited party. The director's
decision is final.
12-2.11 Hearing Officer's Decision
(a) After considering all of the testimony and evidence submitted at the hearing, the
hearing officer shall issue a written decision within ten (10)days of the date of the hearing to
uphold or cancel the Administrative Citation and shall list in the Decision the reasons for that
Decision. The Decision of the hearing officer shall be final.
(b) If the hearing officer determines that the Administrative Citation should be
upheld, then the City shall retain the fine amount on deposit with the City.
(c) If the hearing officer determines that the Administrative Citation should be
upheld, and the fine has not been deposited pursuant to an advance deposit hardship waiver, the
hearing officer shall set a fine payment schedule for the payment of the fine.
(d) If the hearing officer determines that the Administrative Citation should be
canceled and the fine was deposited with the City, then the City shall promptly refund the
amount of the deposited fine.
(e) The recipient of the Administrative Citation shall be served with a copy of the
hearing officer's written Decision in the manner prescribed by Section 12-2.04 of the Atascadero
Municipal Code.
12-2.12 Failure to Pay Fines
(a) The failure of any person to pay the civil fines assessed by an Administrative
Citation within the time specified on the Citation may result in the matter being referred to the
City of Atascadero, Administrative Services Department to file a claim with the Small Claims
Court. Alternatively, the City may pursue any other legal remedy to collect the civil fines.
(b) Any person who fails to pay to the City any fine imposed pursuant to this Chapter
on or before the date that fine is due also shall be liable for the payment of late payment charges
in the amount of twenty-five ($25.00) dollars, plus interest at the maximum rate permitted by
law.
12-2.13 Right to Judicial Review
Any person aggrieved by an Administrative Decision of a hearing officer on an
Administrative Citation may obtain review of the Administrative Decision by filing a Petition for
Review with the San Luis Obispo County Superior Court in accordance with the timelines and
provisions as set forth in California Government Code section 53069.4.
12-2.14 Notices
(a) The Administrative Citation and all notices to be given by this Chapter shall be
served on the responsible person in accordance with the provisions of this Chapter and Section
12-2.04 of the Atascadero Municipal Code, where applicable.
(b) Failure to receive any notice specified in this Chapter does not affect the validity
of proceedings conducted hereunder.
City of Atascadero
Ordinance No.460
Page 10 of 10
SECTION 5: If any section, subsection, sentence, clause or phrase of this Ordinance is
for any reason held to be invalid or unconstitutional, such Decision shall not affect the validity or
constitutionality of the remaining portions of this Ordinance. The City Council hereby declares
that it would have passed this Ordinance and each section, subsection, clause or phrase hereof,
irrespective of the fact that any one or more sections, subsections, sentences, clauses and phrases
be declared unconstitutional.
SECTION 6: A summary of this Ordinance, approved by the City Attorney, together
with the ayes and noes, shall be published at least five days prior to its final passage, in the
Atascadero News, a newspaper published and circulated in the City of Atascadero, and before
the expiration of fifteen (15) days after its final passage, in the Atascadero News, a newspaper
published and circulated in the City of Atascadero. A Copy of the full text of this Ordinance shall
be on file in the City Clerk's Office on and after the date following introduction and passage and
shall be available to any interested member of the public.
INTRODUCED at a regular meeting of the City Council held on August 24, 2004, and PASSED
and ADOPTED by the City Council of the City of Atascadero, State of California, on September
14, 2004,by the following roll call vote:
AYES: Council Members O'Malley, Pacas, Scalise and Mayor Luna
NOES: Council Member Clay
ABSTAIN: None
ABSENT: None
ATTEST: CITY OF ATASCADERO
Marcia McClure Torgerson, C.M.CPty Clerk Dr. George Luna, Mayor
APPROVED AS TO FORM:
Thomas R. Gibson, Interim City Attorney