HomeMy WebLinkAbout03 - Update to NBMC Chapter 1.05DATE: June 12, 2012
TO: Honorable Mayor and Members of the City Council
FROM: Matt Cosylion, Code Enforcement Supervisor
Kyle E. Rowen, Deputy City Attorney
SUBJECT: Agenda Item # 3 — Revised Draft Ordinance
Attached for your consideration is a revised draft ordinance. (Exhibit A.) The revisions to
the ordinance correct some minor errors that have been identified since the agenda packet
was printed. Also, attached •is a revised redline of the draft ordinance that shows the
proposed - changes this ordinance would make to the current provisions within the Newport
Beach Municipal Code. (Exhibit B.)
The minor changes are summarized as follows:
• References to the or this "Code' have been made consistent;
• References to defined terms have been made consistent throughout;
• The word "of' was added in the phrase "the filing of a request" in section
1.05.050(1=)(2);
• The word "and" was added to the end of section 1.05.050(F)(3)(c) and deleted from
the end of section 1.05.050(1= x3)(d);
• In section 1.05.050(F), the reference to a request for hearing has been changed to
a request for an appeal;
• For ease of use, the numerical value was added following written references to a
specific number of days (Le.: thirty 30 days);
• The reference to the Municipal Courts in section 1.04.010(A) has been changed to
Superior Courts; and
• In sections 10.66.060(G)(5 & 6) the reference to the Finance Director's designee
was made possessive where applicable (i.e. by adding an
ORDINANCE NO. 2012-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ESTABLISHING AN
ADMINISTRATIVE CODE ENFORCEMENT PROGRAM,
CIVIL PENALITIES AND IMPLEMENTING A UNIFORM
APPEALS PROCESS FOR ADMINISTRATIVE CITATIONS
AND LOUD AND UNRULY GATHERINGS BY AMENDING
CHAPTER 1.05 AND SECTION 1.04.010, 10.66.060 AND
10.66.070 OF THE NEWPORT BEACH MUNICIPAL CODE
WHEREAS, the City of Newport Beach ( "City") is a charter city, governed by a
charter adopted by the citizens of the City; and
WHEREAS, Article XI, Section 5 of the Constitution of the State of California
authorizes charter cities to enact ordinances with respect to their municipal affairs; and
WHEREAS, the City Council finds and declares that the proposed ordinance
relates to matters that are solely a municipal affair and not matters of statewide concern;
and
WHEREAS, the City Council finds and declares that it is the intent of this Ordinance
to protect the public health, safety, general welfare, and provide for the public enjoyment of
the City and that violations of the Newport Beach Municipal Code are a public nuisance, a
threat to the public health, safety and general welfare and prevent the public from enjoying
the City; and
WHEREAS, the City Council finds that the proposed ordinance will not result in a
direct or reasonably foreseeable indirect physical change in the environment (Section
15060(c)(2) of the California Environmental Quality Act Guidelines); and
WHEREAS, this agenda item has been noticed in accordance with the Ralph M.
Brown Act (72 hours in advance of the public meeting) and the item appeared upon the
agenda for this meeting which was posted at City Hall and on the City's website.
NOW THEREFORE, in consideration of the preceding findings and declarations,
the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows:
1
Section 1: Chapter 1.05 of Newport Beach Municipal Code is hereby amended
to read as follows:
Chapter 1.05
ADMINISTRATIVECODE ENFORCEMENT PROGRAM
Sections:
1.05.005 Legislative Findings and Statement of Purpose.
1.05.010 Definitions.
1.05.020 Authority and Administrative Citation Fines.
1.05.030 Service Procedures.
1.05.040 Contents of Administrative Citation.
1.05.050 Administrative Costs Recovery.
1.05.060 Appeal of Administrative Citation.
1.05.065 Administrative Civil Penalties.
1.05.070 Hearing Officer.
1.05.080 Hearing Procedure.
1.05.090 Hearing Officer's Decision.
1.05.100 Failure to Pay Fines, Penalties, Costs or Fees.
1.05.110 Right to Judicial Review of Hearing Officer's Decision on
Administrative Citation.
1.05.120 Administrative Remedies Not Exclusive.
1.05.005 Legislative Findings and Statement of Purpose.
A. The City Council finds that the enforcement of The Newport Beach Municipal
Code (the "Code") throughout the City is an important public service and is vital to the
protection of the public's health, safety and quality of life.
B. The City Council finds that there is a need for an alternative method of
enforcement for various violations of the Code. The City Council also finds that an
appropriate method for enforcement of various violations is an Administrative Code
Enforcement Program that will reduce the burden on the judicial system while providing
full due process for those alleged to be responsible for a violation of the Code.
C. The procedures established in this chapter are in addition to criminal, civil or
other legal remedies that may be available to the City to enforce violations of the Code
or applicable State Codes.
D. The City Council finds and determines that enforcement of the provisions of
the Code and conditions on entitlements or permits are municipal affairs as well as
matters of purely local concern to the citizens of Newport Beach.
E. The City Council finds that the adoption and implementation of this
Administrative Code Enforcement Program is within the power and authority of the City
'of Newport Beach as a charter city and will achieve the following goals:
1. To promote and protect the public health, safety and welfare of the
citizens of the City of Newport Beach;
2. To help ensure compliance with the Code and State Codes, ordinances
and regulations in a timely and efficient manner;
3. To provide for an administrative process to appeal the imposition of
administrative citations, fines, penalties and costs that will fully comport with due
process and provide those alleged to be in violation of the Code with the right to
a fair hearing without the need for legal counsel;
4. To provide a method to hold parties responsible when they fail or refuse to
comply with the provisions of the Code, ordinances, agreements or terms and
conditions on entitlements in the City of Newport Beach;
5. To reduce the burden on the judicial system and minimize the time and
expense of defending the alleged violation on the part of the Responsible
Person.
F. Use of this chapter shall be at the sole discretion of the City.
1.05.010 Definitions.
For purposes of this chapter, the following definitions shall apply:
A. "Administrative Costs" means all costs incurred by or on behalf of the City from
the first discovery of a violation of this Code through the appeal process and until
compliance is achieved, including but not limited to, staff time in investigating the
violation, an inspection of the property where the violation occurred, a preparation of
investigation reports; notification; preparation for and attendance at any hearings;
attorneys' fees; and fees paid to the Administrative Hearing Officer. "Administrative
Costs" shall not include the administrative citation fines; the administrative civil penalties
assessed pursuant to this chapter; include late payment charges that accrue; or
collection costs incurred, as a result of unpaid administrative citation fines.
B. "Enforcement Officer" means any officer or employee with the authority to
enforce the Code as provided in Chapter 1.12.
C. "Responsible Person" means any natural person, parent or legal guardian of any
person under the age of eighteen (18) years, joint venture, joint stock company,
partnership, association, club, company, corporation, business trust, or organization, or
the manager, lessee, agent, officer or employee of any of them, or any of the foregoing
who own, possess, control or have a legal or equitable interest in real property, who
violates, maintains or allows a violation this Code.
1.05.020 Authority and Administrative Citation Fines.
A. Any Responsible Person violating any provision of this 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 Newport Beach Municipal
Code, any codes adopted by the City Council (i.e.: Building Code, Fire Code, etc.), and
the failure to comply with any condition imposed by any entitlement, permit, agreement
or environmental document issued or approved pursuant to this Code or State law.
B. Each and everyday a violation of this Code exists constitutes a separate and
distinct offense.
C. - An administrative fine shall be assessed by means of an administrative citation
issued by the Enforcement Officer and shall be payable directly to the City.
D. Where no administrative fine amount is specified, established by resolution of the
City Council, or established by any other provision of this Code, administrative fines
shall be assessed in the following amounts:
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 ordinance or permit within one year from the date of a prior violation;
3. A fine not exceeding five hundred dollars ($500.00) for a third violation, or
any subsequent violation, of the same ordinance or permit within one year from
the date of the prior violations.
E. In the case of administrative citations issued for violations in a Safety Enhancement
Zone established pursuant to Section 1.04.060 of this Code, administrative fines shall
be assessed in the following amounts:
A fine of three hundred dollars ($300.00) for a first violation;
2. A fine of six hundred dollars ($600.0.0) for a second violation of the same
ordinance or permit within one year from the date of a prior violation;
3. A fine not exceeding one thousand dollars ($1,000.00) for a third violation,
or any subsequent violation, of the same ordinance or permit within one year
from the date of the prior violations.
F. In the case of administrative citations issued for violations of Chapter 5.28 [Live
Entertainment Establishments]; Chapter 5.32 [Cafe Dances]; Chapter 5.95 [Short Term
Lodging Permit]; Section 10.50.020(H) [Violation of terms or conditions of a Use Permit
issued by the City]; Section 14.36.030 resulting in bay or beach closure [Illicit
Connections and Prohibited Discharges]; California Fire Code section 107.6 (as
adopted by Code Section 9.04.010); or California Fire Code section 107.6.1 (as adopted
by Code Section 9.04.020), administrative fines shall be assessed in the following
amounts when authorized by the City Manager or his or her designee:
A fine not exceeding one thousand dollars ($1,000.00) for a first violation;
2. A fine riot exceeding two thousand dollars ($2,000.00) for a second
violation of the same ordinance or permit within one year from the date of the
prior violation;
3. A fine not exceeding three thousand dollars ($3,000.00) for a third
violation, or any subsequent violation, within one year from the date of the prior
violations.
G. All fines imposed under this Section shall be due and payable to the City's
Finance Department within thirty (30) days from the service of an administrative citation.
H. The fines imposed under this Section shall be in addition to any other fines,
penalties, and /or fees imposed for violations of this Code or local, State, and /or Federal
law.
1.05.030 Service Procedures.
A. Notwithstanding any other provision of this Code, any notice, administrative
citation, or any other document issued under this Chapter may be served by any of the
following methods:
Personal Service.
2. Deposit in the mail for delivery by the United States Postal Service, in a
sealed envelope, postage prepaid, addressed to such person to be notified, at
their last known address as the same appears in public records or public records
related to title or ownership of the property; or
3. If service cannot be accomplished by subparagraphs (1) or (2) above, by
posting the notice or administrative citation conspicuously on or in front of the
subject property.
B. Personal service shall be deemed to have been completed when served on the
person. Service by mail shall be deemed to have been completed at the time of deposit
by the City in the mail for delivery by the United States Postal Service. Service by
posting shall be deemed to have been completed at the time of posting.
C. Failure to receive any notice, administrative citation or any other document or
correspondence issued under this Code does not affect the validity of proceedings
conducted hereunder.
1.05.040 Contents of Administrative Citation.
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 permit conditions violated and a description of the
violation(s);
3. If applicable to the violation, 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);
4. The amount of the fine for the violation(s);
5. An explanation of how the fine shall be paid and the time period by which
it shall be paid;
6. Identification of rights of appeal, including the time within which the citation
may be contested and the place to obtain a request for hearing form to contest
the administrative citation; and
7. The name and signature of the Enforcement Officer
1.05.050 Administrative Costs Recovery
A. This section establishes procedures for the recovery of Administrative Costs.
The intent of this section is to recover the City's Administrative Costs reasonably related
to enforcement actions. Any Responsible Person violating any provision of this Code
may be subject to the recovery of the City's Administrative Costs pursuant to the
procedures set forth in this Chapter
B. Record of Administrative Costs. Should the City seek to recover its
Administrative Costs, each Enforcement Officer shall produce records of all
Administrative Costs associated with the investigation and /or processing of violations
and enforcement of this Code, and shall recover the costs from the Responsible Person
in compliance with this section. Staff time shall be calculated at an hourly rate
established and revised from time to time by resolution by the Council.
C. Notice of Intent to Charge Administrative Costs. Upon investigation and a
determination that a violation of any provisions of this Code is found to exist, the
Enforcement Officer shall notify the Responsible Person of the existence of the
violation, the City's intent to charge the Responsible Person for all Administrative Costs
associated with enforcement.
D. Summary of Administrative Costs. At the conclusion of an enforcement action,
the Enforcement Officer shall send a Summary of Administrative Costs to the
Responsible Person. The Summary of Administrative Costs shall include a notice
advising the Responsible Person of their right to appeal, and that if no written appeal is
timely filed, the Responsible Person will be liable for the Administrative Costs. The
failure of any Responsible Person to timely appeal with the City shall be deemed a
failure to exhaust the Responsible Person's administrative remedies with regard the
Summary of Administrative Costs.
E. In the event that no appeal of the Summary of Administrative Costs is timely filed,
or the Hearing Officer affirms the validity of the costs as part of the enforcement action,
the Responsible Person shall be liable to the City in the amount stated in the Summary
of Administrative Costs or any lesser amount determined by the Hearing Officer.
F. Request for an Appeal on Administrative Costs. A Responsible Person who
receives a Summary of Administrative Costs shall have the right to an administrative
hearing before a Hearing Officer on their objections to the Summary of Administrative
Costs.
1. Request for an Appeal. A request for an appeal shall be filed with the
City's Finance Department within thirty (30) days of the service of the Summary
of Administrative Costs on a form provided by the Finance Department.
2. Hearing. Within sixty (60) days of the filing of a request for an appeal, and
on ten (10) days' prior written notice to the Responsible Person, a Hearing
Officer shall hold a hearing on the objections to the Summary of Administrative
Costs.
3. Factors to be considered by a Hearing Officer. The Hearing Officer shall
consider whether the costs identified in the Summary of Administrative Costs are
reasonable under the circumstances of the enforcement action including the
following:
Whether the Responsible Person created the violation;
Whether there is a present ability to correct the violation;
C. Whether the Responsible Person acted promptly to correct the
violation; and
d. The degree of cooperation provided by the Responsible Person.
4. The failure of any Responsible Person to appear at the administrative
hearing before the Hearing Officer on the Summary of Administrative Costs shall
be deemed a failure to exhaust the Responsible Person's administrative
remedies with regard to the Summary of Administrative Costs.
G. Any Responsible Person aggrieved by the Hearing Officer's decision under this
Section may obtain judicial review of that decision by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in Califomia Code of Civil Procedure Section 1094.6.
1.05.060 Appeal of Administrative Citation.
A. Any recipient of an administrative citation may contest that there was a violation
of the Code or that he or she is the Responsible Person by completing a request for
hearing form and returning it to the City's Finance Department within thirty (30) days
from the date of service of the administration citation, together with an advanced deposit
of the fine or a notice that a request for an advance deposit hardship waiver pursuant to
Subsection B has been filed. 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. Any Responsible Person who requests a hearing to contest that there was a
violation of the Code or that he or she is the Responsible Person for the violation and
who is financially unable to make the advance deposit of the fine as required may file a
request for an advance deposit hardship waiver within fifteen (15) calendar days from
the date of service of the citation. The failure of any person to timely file a written
request for an advance deposit hardship waiver with the City's Finance Director, or his
or her designee, shall be deemed a failure to exhaust the person's administrative
remedies with regard to the advance deposit hardship waiver.
1. The request for an advance deposit hardship waiver shall be in writing and
describe with particularity the Responsible Person's actual financial inability
demonstrating why all or a part of the fine cannot be paid. Further, the written
request for an advance deposit hardship waiver must be accompanied by a
sworn affidavit, together with any supporting documents or materials,
demonstrating to the satisfaction of the City's Finance Director, or his or her
designee, the Responsible Person's actual financial inability that necessitates an
advance deposit hardship waiver. The City's Finance Director, or his or her
designee, is entitled to request additional documentation and information from
the Responsible Person in order to fully assess the waiver request. The failure of
any Responsible Person to timely submit all requested additional documentation
and information to the City's Finance Director, or his or her designee, as
requested shall be deemed a failure to exhaust the Responsible Person's
administrative remedies with regard to the advance deposit hardship waiver.
V-3
2. Once a complete written request for an advance deposit hardship waiver
is filed with the City's Finance Director, or his or her designee, the requirement of
depositing the full amount of the fine shall be stayed until the City's Finance
Director, or his or her designee, determines whether to grant, grant in part, or
deny the request. The written determination of the City's Finance Director, or his
or her designee, shall be served on the person requesting the advance deposit
hardship waiver as provided for in this Code. The written determination of the
City's Finance Director, or his or her designee, shall be final.
3. If the City's Finance Director, or his or her designee, grants the advance
deposit hardship waiver, the Responsible Person shall not be required to deposit
the fine in advance of the hearing.
4. If the City's Finance Director, or his or her designee, grants in part the
advance deposit hardship waiver, the Responsible Person shall remit that
amount of the fine as a deposit that the City's Finance Director, or his or her
designee, determines the Responsible Person has the ability to pay within ten
(10) days of that decision or thirty (30) days from service of the administrative
citation, whichever is later.
5. If the City's Finance Director, or his or her designee, denies the request
for an advance deposit hardship waiver, the Responsible Person shall remit the
full amount of the fine as a deposit to the City within ten (10) days of that decision
or thirty (30) days from service of the administrative citation, whichever is later.
6. The granting, or granting in part, of any request for an advance deposit
hardship waiver shall not excuse or discharge any continuation or repeated
occurrence of any violation of this Code, nor shall it bar further enforcement
action by the City.
7. The granting, or granting in part, of any request for an advance deposit
hardship waiver shall not excuse the Responsible Person from paying the full
amount of the fine if the administrative citation is upheld by the hearing officer
following an administrative hearing.
1.05.065 Administrative Penalties.
A. In addition to any applicable fine provided for by this Code, any Responsible
Person violating any provision of this Code may also be subject to the assessment of
administrative'penalties pursuant to the procedures set forth in this Chapter.
B. Whenever an Enforcement Officer determines that a violation of one or more
provisions of this Code has occurred or continues to exist, a written Administrative
Penalties Notice and Order may be issued to each Responsible Person.
2
C. Administrative penalties, if awarded, assessed, or imposed; shall be assessed at
a daily rate, the amount of which shall be determined by the Hearing Officer and set
forth in an Administrative Penalties Enforcement Order following the presentation of
evidence at an administrative hearing according to the procedures established in this
Chapter. Administrative penalties may be assessed separate and in addition to fines
and Administrative Costs authorized by this Code.
D. The maximum legal rate for administrative penalties shall be one thousand
dollars ($1,000.00) per day, per violation. The maximum legal amount of administrative
penalties shall be two hundred thousand dollars ($200,000.00), plus interest on unpaid
penalties, per parcel of real property, including any structures located thereon, for all
violations of this Code, including continuing violations, existing at the time the
Administrative Penalties Notice and Order is issued by the City. Violations first
occurring after the issuance of an Administrative Penalties Notice and Order shall be
subject to enforcement through the issuance of a separate Administrative Penalties
Notice and Order.
E. The Administrative Penalties Notice and Order shall provide notice of the
following: the alleged violation(s); a brief description of the remedial or corrective action
required; a compliance deadline; the date and time set for a hearing before a Hearing
Officer should the corrective action not be taken, and notice that each violation not
corrected by the compliance deadline will be subject to an order requiring payment of
administrative penalties in an amount determined by a Hearing Officer; and an order to
correct the violation(s).
F. More than one Administrative Penalties Notice and Order may be issued against
the same Responsible Person if each such subsequent notice and order concerns
different dates, different violations, or different locations.
G. In determining the date when administrative penalties start to accrue, a Hearing
Officer may consider the date when the City first discovered the violation as evidenced
by the issuance of an administrative citation, Administrative Penalties Notice and Order,
or any other written notice or correspondence to any Responsible Person.
H. In determining the amount of administrative penalties to be assessed at a daily
rate for each violation, the Hearing Officer may consider some or all of the following
factors:
The duration of the violation;
The frequency of recurrence of the violation;
The seriousness of the violation;
4. The history of the violation;
10
The Responsible Person's conduct after issuance of any notice;
6. The good faith effort to comply;
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
I. The failure of any Responsible Person to appear at the administrative hearing
before the Hearing Officer on the Administrative Penalties Notice and Order shall be
deemed a failure to exhaust the Responsible Person's administrative remedies with
regard to the Administrative Penalties Notice and Order.
J. When the Responsible Person fails to comply with the Administrative Penalties
Notice and Order by correcting the violation(s) and bringing the property into
compliance with this Code, the Administrative Penalties Notice and Order shall be set
for an administrative hearing. In the interests of justice, an Enforcement Officer may
reschedule the date and time for the administrative hearing on an Administrative
Penalties Notice and Order upon written notice to the Responsible Person.
K. Within forty -five (45) days of the completion of the administrative hearing on an
Administrative Penalties Notice and Order, the Hearing Officer shall issue an
Administrative Penalties Enforcement Order. The Administrative Penalties Enforcement
Order shall become final and take effect on the date it is signed by the Hearing Officer.
The Administrative Penalties Enforcement Order shall contain the following information:
Date(s) of the administrative hearing;
2. Identification by name of each Enforcement Officer, Responsible Person
and any other person or witness attending the hearing;
3. A determination regarding the sufficiency of notice for due process
purposes;
4. A summary of the evidence presented by each witness, including exhibits;
5. Findings of fact, analysis of applicable sections of this Code, and
conclusions of law as to the issues relevant to the administrative hearing;
6. A determination and assessment of administrative civil penalties and
Administrative Costs to be awarded to the City, if any;
7. Notice of appeal rights and judicial review pursuant to California Code of
Civil Procedure Section 1094.6;
11
8. Signature of the Hearing Officer and the signature date.
L. The Administrative Penalties Enforcement Order shall be served on all
Responsible Persons by first -class mail, postage prepaid and include a copy of an
affidavit or certificate of mailing.
M. Upon the failure of the Responsible Person to comply with terms and deadlines
set forth in the Administrative Penalties Enforcement Order, the Enforcement Officer
may use all appropriate legal means to recover the administrative penalties assessed
and obtain compliance with the Administrative Penalties Enforcement Order.
N. After the Hearing Officer issues an Administrative Penalties Enforcement Order,
the Enforcement Officer shall periodically and regularly inspect the subject property to
determine whether the property has been brought into compliance with the
Administrative Penalties Enforcement Order and whether daily penalties should
continue to accrue.
O. Any Responsible Person aggrieved by an Administrative Penalties Enforcement
Order may obtain judicial review of that order by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in California Code of Civil Procedure Section 1094.6.
P. It is unlawful for a Responsible Person who has been served with a copy of the
final Administrative Penalties Enforcement Order issued pursuant to this Section to fail
to comply with that order.
1. The failure to comply with a final Administrative Penalties Enforcement
Order may be prosecuted as an infraction or misdemeanor at the discretion of
the City Attorney.
2. The failure to comply with a final Administrative Penalties Enforcement
Order may result in alternative remedies, such as civil injunction, abatement,
receivership, or any other legal remedy.
1.05.070 Hearing Officer.
A. The Newport Beach City Manager shall designate the Hearing Officer for any
administrative hearing called for in this Code. The Hearing Officer shall not be a
Newport Beach City employee. The employment, performance evaluation,
compensation and 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.
B. Disqualification. Any person designated to serve as a Hearing Officer is subject
to disqualification for actual bias, prejudice, interest, or for other reason for which a
12
judge may be disqualified after a showing of good cause under the laws of the State of
California.
C. Powers. The Hearing Officer shall have the power to:
Conduct administrative hearings as provided under the authority of this
Code;
2. Continue a hearing based on good cause shown by one of the parties to
the hearing or upon the Hearing Officer's own motion;
3. Request additional information from the Enforcement Officer or the
Responsible Person provided notice of such request is given to all parties;
4. Exercise continuing jurisdiction over the subject matter of an
administrative hearing for the purposes of granting a continuance, ensuring
compliance with any Order, modifying any Order, or where extraordinary
circumstances exist, granting a new administrative hearing;
5. Require a Responsible Person to post a bond to ensure compliance with
an Administrative Penalties Enforcement Order;
6. Rule upon the merits of an administrative hearing upon consideration of
the evidence submitted and issue a written decision resolving the case;
7. Uphold, award, impose, assess, or deny a fine or penalty authorized under
this Code;
8. Assess Administrative Costs according to proof;
9. Set, increase, or decrease, according to proof, the amount of fine or
penalty or the daily rate of such fine or penalty sought by the City to be awarded,
imposed, or assessed in those cases where the fine'or penalty is not fixed but is
subject to a range as otherwise established by this Code;
10. In those cases where the fine or penalty is not fixed but is subject to a
range as otherwise established by this Code, determine the date certain upon
which the assessment of administrative penalties shall begin; and, where the
corrections are subsequently completed to the City's satisfaction, the date certain
upon which the assessment of administrative penalties shall end. If the violations
have not been so corrected, the daily accrual of the penalties assessed shall
continue until the violations are corrected or the legal maximum limit is reached;
and
11. Where appropriate in administrative actions arising from the issuance of
an Administrative Penalties Notice and Order and as a condition of compliance in
13
correcting the violations at issue; require each Responsible Person to cease
violating this Code and to make all necessary corrections.
1.05.080 Hearing Procedure.
A. No hearing to contest an administrative citation or Summary of Administrative
Costs and Notice before a Hearing Officer shall be held unless and until a request for
hearing form has been completed and submitted, and, if applicable, the fine has been
deposited in advance or an advance deposit hardship waiver has been issued.
B. A hearing before the Hearing Officer may be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this Chapter. The Responsible Person
requesting the hearing shall be notified of the time and place set for the hearing at least
ten (10) days prior to the date of the hearing. The City and Responsible Person may
mutually agree to waive, modify or change the date of the preceding.
C. For a hearing contesting an administrative citation, the Hearing Officer shall only
consider evidence that is relevant to whether the violation(s) occurred and whether the
Responsible Person has caused or maintained the violation(s) of the Code on the
date(s) specified.
D. The Responsible Person shall be given the opportunity to testify and present
relevant witnesses and evidence during the hearing.
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.
F. The administrative citation, any notice issued under the provisions of this Code,
and any additional documents submitted by the Enforcement Officer shall constitute
prima facia evidence of the respective facts contained in those documents.
G. Either party may submit additional written reports, documents or evidence to the
Hearing Officer for consideration, with a copy served by mail. on the other party at least
five (5) days prior to the date of the hearing. The failure of either party to receive
materials prior to the hearing shall not affect the validity of the proceedings, but may
entitle the party to a reasonable .continuance of the hearing.
H. At least ten (10) days prior to the hearing, the recipient of an administrative citation
shall be provided with copies of the citations, reports and other documents or evidence
submitted or relied upon by the Enforcement Officer. No other discovery is permitted.
Formal rules of evidence shall not apply. Administrative hearings are intended to be
informal in nature. Any relevant evidence shall be admitted if it is the type of evidence
on which reasonable persons are accustomed to rely on in the conduct of serious
affairs, regardless of the existence of any common law or statutory rules which might
14
make improper the admission of such evidence over objection in civil actions in courts
of competent jurisdiction in this State. Irrelevant and unduly repetitious evidence shall
be excluded.
1.05.090 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 hearing and
shall list in the decision the reasons for that decision. For a hearing on an administrative
citation, the Hearing Officer may uphold or deny the administrative citation. The
decision of the Hearing Officer shall be final.
B. If the Hearing Officer determines that the administrative citation should be upheld,
then the fine amount on deposit with the City shall be retained by the City.
C. If the Hearing Officer determines that the administrative citation should be denied
and the fine was deposited with the City, then the City shall promptly refund the amount
of the deposited fine.
D. 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 1.08.080 of this
Code. .
1.05.100 Failure to Pay Fines, Penalties, Costs or Fees.
A. The amount of any fine, penalty, cost or fee imposed pursuant to this Chapter
shall be deemed a debt owed to the City.
B. The failure of any person to pay an assessed fine, penalty, cost or fee by the
deadline specified shall result in the assessment of additional late fees.
C. It is intended that persons causing, maintaining, and /or permitting the violation,
bear the financial burden of the City's enforcement efforts. The City may pursue any
and all legal and equitable remedies to collect unpaid fines, penalties, costs or fees
imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit
of any other remedy. Remedies available to the City to collect unpaid fines, penalties,
costs or fees include, but are not limited to, the following:
Referring the delinquent account to collection;
2. Authorizing a lien to be recorded on the property for any unpaid fines,
penalties, costs, or fees imposed;
3. Authorizing a special assessment upon the property for any civil fines,
penalties, costs, or fees imposed against the owner; and /or
15
4. Filing a civil action in a court of competent jurisdiction.
D. Any person who fails to pay any fine, penalty, cost or fee shall be liable in any
.proceeding brought by the City for the costs incurred in securing payment of the unpaid
amount, including attorneys' fees. Such costs shall be in addition to any penalties,
interest, and /or late fees imposed upon the unpaid fine, penalty, cost or fee.
1.05.110 Right to Judicial Review of Hearing Officer's Decision on Administrative
Citation.
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 Orange County Superior Court in accordance with the
timelines and provisions as set forth in California Government Code Section 53069.4.
1.05.120 Administrative Remedies Not Exclusive.
The procedures established in this Chapter for the use of administrative citations and
the administrative civil penalties process, and the procedures established in other
chapters of this Code for administrative abatement and summary abatement, as means
for addressing violations of this Code shall be in addition to criminal, civil or other legal
or equitable remedies established by law that may be pursued to address violations of
this Code and the use of this chapter shall be at the sole discretion of the City.
Section 2: Section 1.04.010 of Newport Beach Municipal Code is hereby amended to
read as follows:
1.04.010 Violations, Penalties and Enforcement.
The provisions of this section represent the means and methods by which the City of
Newport Beach intends to secure compliance with the provisions of this Code. The City
may use any or all of the enforcement options in securing compliance with the
provisions of this Code and multiple enforcement options may be used to achieve
compliance with respect to persons who commit continuing violations. A separate
offense shall be deemed to have been committed whenever: (a) a person repeats the
act that constitutes the violation; or (b) any condition or circumstance that constitutes a
violation is allowed to exist for more than twenty -four hours.
A. 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. Written
citations for infractions may be issued by police officers or nonsafety employees
designated in Section 1.12.020. Except as provided in subsection B of this section, any
person convicted of an infraction under the provisions of this Code shall be punishable
either by fines as is specified in the currently adopted Uniform Infraction Bail Schedule
used by the Orange County Superior Courts, or where no fine is specified therein by:
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 ordinance within one year;
3. A fine not exceeding five hundred dollars ($500.00) for each additional
violation of the same ordinance within one year.
B. Safety Enhancement Zone. For any violation of the Newport Beach Municipal
Code that is committed within an area that has been designated by the City Council as
a Safety Enhancement Zone pursuant to Section 1.04.060, and during the time that
designation is effective, the fine shall be treble the amount otherwise prescribed or
where the violation is considered an infraction and no fine is specified by:
1. A fine not exceeding three hundred dollars ($300.00) for a first violation;
2. A fine not exceeding six hundred dollars ($600.00) for a second violation
of the same ordinance within one year;
3. A fine not exceeding one thousand dollars ($1,000.00) for each additional
violation of the same ordinance within one year.
C. 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 nonsafety
employees designated by Newport Beach Municipal Code Section 1.12.020. Any
person convicted of a misdemeanor under the provisions of this Code shall be punished
by a fine not exceeding one thousand dollars ($1,000.00) or imprisonment for a term not
exceeding six months, or by both such fine and imprisonment.
D.. Civil Action. The City Attorney, by and at the request of the City Council, 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, in addition to all other remedies, costs, fines and fees, the court may
impose civil penalties payable to the City in an amount not to exceed one thousand
dollars ($1,000.00) per violation for each day the violation is found to exist against any
person who commits, continues, operates, allows or maintains any violation of any
provision of this Code. In determining the amount of the civil penalties to be assessed
on a. daily rate for each violation, the court may consider some or all of the following
factors:
The duration of the violation;
2. ' The frequency of recurrence of the violation;
17
3. The seriousness of the violation;
4. The history of the violation;
5. The person's conduct after issuance of any notice;
6. The good faith effort to comply;
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
E. Administrative Code Enforcement Program. 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 take any action authorized under the provisions of Chapter 1.05.
Section 3: Section 10.66.060 of Newport Beach Municipal Code is hereby amended to
read as follows:
10.66.0 60 Violation — Penalty —Civil Fine.
A. The following civil fines shall be assessed for violations of Section 10.66.020(A):
A civil fine not exceeding five hundred dollars ($500.00) for a first violation;
2. A civil fine not exceeding one thousand dollars ($1,000.00) for a second
violation within ninety (90) days of the first violation;
3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third
violation within ninety (90) days of the first. violation; and
4. A civil fine not exceeding three thousand dollars ($3,000.00) for a fourth
and any subsequent violations within ninety (90) days of the first violation.
B. The following civil fines shall be assessed for violations of Section 10.66.020(A)
that occur within the West Newport Safety Enhancement Zone, as established by
Section 1.04.060:
1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00)
for a first violation;
2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second
and any subsequent violations within ninety (90) days of the first violation.
93
C. Any responsible person who is present at a residential unit that has a notice
posted pursuant to Section 10.66.030(A) shall be presumed to have notice of the prior
violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according
to the number of violation(s) at the residential unit within the preceding ninety (90) day
period pursuant to the civil fine schedules in subsections (A) or (B) of this section.
D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for
a violation of Section 10.66.030(B). Additionally, any person violating Section
10.66.030(B) may be prosecuted for a misdemeanor, and upon conviction, shall be
punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment
for a term not exceeding six months, or by both such fine and imprisonment.
E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for
a violation of Section 10.66.030(C).
F. All civil fines imposed under this chapter shall be due and payable to the City's
Finance Department within the earlier of thirty (30) days from the issuance of a citation
or service of the notice of violation.
G. Any owner or Responsible Person who intends to request an administrative
hearing pursuant to Section 10.66.070 may request an advance deposit hardship waiver
pursuant to Section 1.05.060(B). An owner or Responsible Person who is unable to pay
all or a part of the civil fine due to the person's actual financial inability may file a written
request for a civil fine waiver with the City's Finance Director, or his or her designee,
within fifteen (15) calendar days from the date of service of the citation or notice,
whichever is earlier. The failure of any owner or Responsible Person to timely file a
written request for a civil fine waiver with the City's Finance Director, or his or her
designee, shall be deemed a failure to exhaust the owner's or Responsible Person's
administrative remedies with regard to the same.
1. The written request for a civil fine waiver shall be in writing and describe
with particularity the owner's or Responsible Person's actual financial inability
demonstrating why all or a part of the fine should be waived. Further, the written
request for a civil fine waiver must be accompanied by a sworn affidavit and
demonstrate to the satisfaction of the City's Finance Director, or his or her
designee, the owner's or Responsible Person's actual financial inability that
necessitates a waiver of all or a part of the civil fine amount. The City's Finance
Director, or his or her designee, is entitled to request additional documentation
and information from the owner or Responsible Person in order to fully assess
the owner's or Responsible Person's actual financial inability. The failure of any
owner or Responsible Person to timely submit all requested additional
documentation and information to the City's Finance Director, or his or her
designee, as requested shall be deemed a failure to exhaust the owner's or
Responsible Person's administrative remedies with regard to the same.
19
2. Once a complete written request for a civil fine waiver is filed with the
City's Finance Director, or his or her designee, the requirement to pay the civil
fine shall be stayed until the City's Finance Director, or his or her designee,
determines whether to grant or deny the request.
3. If the City's Finance Director, or his or her designee, grants the written
request for a civil fine waiver, the owner or Responsible Person shall not be
required to pay the civil fine. If the City's Finance Director, or his or her designee,
determines that the owner or Responsible Person has the financial ability to pay
all or a part of the civil fine on a reasonable payment plan, the City's Finance
Director, or his or her designee, shall so notify the owner or Responsible Person
and the owner or Responsible Person shall execute any agreements required by
the City's Finance Director, or his or her designee, to establish the payment plan.
4. The granting of any request for a civil fine waiver or payment plan shall not
excuse or discharge any continuation or repeated occurrence of any violation of
this chapter, nor shall it bar further enforcement action by the City.
5. If the City's Finance Director, or his or her designee, denies the written
request for a civil fine waiver the civil fine must be paid within ten (10) calendar
days from the date of service of the City Finance Director's, or his or her
designee's, determination.
6. The City Finance Director's, or his or her designee's, determination shall
be (a) made within fifteen (15) calendar days of the date of receipt of the
complete request or any additional information as requested by the City Finance
Director, or his or her designee,; (b) be in writing; and (c) served either by
personal delivery on the owner or Responsible Person or by deposit in the mail
for delivery by the United States Postal Service, in a sealed envelope, postage
prepaid, addressed to such owner or Responsible Person. The decision of the
City's Finance Director, or his or her designee, shall be final.
H. The civil fines and criminal penalties imposed in this chapter shall be in addition
to any other fines and /or penalties imposed for violations of local, State, and /or Federal
law during a loud or unruly gathering.
I. Any owner who does not reside within the residential unit and has (1) included
covenants within the written lease or rental agreement for the premises on which a loud
or unruly gathering occurs that contain specific language prohibiting the activities
described in this chapter; and (2) demonstrated due diligence in abating an
unmanageable tenant(s) or Responsible Person(s) for a loud or unruly gathering shall
not be liable under this chapter. Prior to July 1, 2012, an owner who does not reside
within the residential unit and has a written lease or rental agreement for the residential
unit on which a loud or unruly gathering has occurred shall only need to demonstrate
due diligence in abating an unmanageable tenant(s) or Responsible Person(s) for a
loud or unruly gathering to not be liable under this chapter.
20
J. Any owner who does not reside within the residential unit, has a written lease or
rental agreement for the residential unit and had the same residential unit posted with a
notice pursuant to Section 10.66.030(A) may file a written petition with the Chief of
Police, or his or her designee, requesting permission to remove posted notice prior to
the expiration of the ninety (90) day period. The Chief of Police, or his or her designee,
may grant the owner's written petition upon a satisfactory showing by the owner that the
Responsible Person(s) for the loud or unruly gathering are no longer in possession of or
allowed to occupy the residential unit.
K. Failure to receive any notice specified in this chapter does not affect the validity
of proceedings conducted hereunder.
Section 4: Section 10.66.070 of Newport Beach Municipal Code is hereby amended to
read as follows:
10.66.070 Administrative Hearing, Appeal.
A. Any owner or Responsible Person who, pursuant to this chapter, is (1) subject to
a civil fine; or (2) has had their residential unit posted with a notice concerning a loud or
unruly gathering, shall have the right to file a request for an administrative hearing to
appeal the imposition of the civil fine and /or the posting of the premises. Any such
request shall be submitted to the City's Finance Department in writing on the form
required by the City within thirty (30) days from the date of service of the citation, notice
of violation or posting of the premises, whichever is earlier. The written request for an
administrative hearing shall be submitted to the City with an advance deposit of the civil
fine unless a request for a civil fine waiver or an advance deposit hardship waiver has
been filed pursuant to Sections 10.66.060(G) and 1.05.060(B). No administrative
hearing before a Hearing Officer shall be held unless and until a request for hearing
form has been completed and submitted, and, the fine has been deposited in advance
or an advance deposit hardship waiver has been issued.
B. The failure of any owner or Responsible Person to timely file a written request for
a hearing, as required in this section, shall be deemed a failure to exhaust the owner's
or Responsible Person's administrative remedies and render the citation, notice of
violation and /or posting of the premises final.
C. Any civil fine which has been deposited shall be refunded if it is determined, after
an administrative hearing, that the owner or Responsible Person who requested the
administrative hearing was not responsible for the violation(s) or there was no
violation(s) as charged in the citation, notice of violation or posting on the premises. If,
after.the administrative hearing, it is determined that the owner or Responsible Person
was responsible for the violation(s), any civil fine previously deposited shall be retained
by the City.
21
D. The City Manager shall designate the Hearing Officer for the administrative
hearing. The Hearing Officer shall not be an employee of the City. The employment,
performance evaluation, compensation and benefits of the Hearing Officer, if any, shall
not be directly or indirectly conditioned upon the result of the administrative hearing as
determined by the Hearing Officer.
E. A hearing before the Hearing Officer shall be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this chapter. The person requesting the
hearing shall be notified of the time and place set for the hearing at least ten (10) days
prior to the date of the hearing. The City and the owner or Responsible Person may
mutually agree to waive or modify or change the date of the preceding.
F. The Hearing Officer shall only consider evidence that is relevant to whether the
violation(s) occurred and whether the owner or Responsible Person is liable for the
violation(s).
G. The owner or Responsible Person requesting the administrative hearing shall be
given the opportunity to testify and present witnesses and evidence concerning the
violation(s).
H. The failure of any owner or Responsible Person to appear at the administrative
hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative
remedies, and render the citation, notice of violation, or posting of the premises final,
including any civil fine imposed thereby.
I. The citation, notice of violation, and /or posted notice on the premises, together
with any additional documents or evidence submitted by the City, shall constitute prima
facia evidence of the respective facts contained in those documents and evidence.
J. If the City submits any additional documents or evidence to the Hearing Officer
for consideration at the administrative hearing, then a copy of the same shall be served
by mail on the owner or Responsible Person requesting the hearing at least five (5)
days prior to the date of the administrative hearing. The failure of either party to receive
materials prior to the hearing shall not affect the validity of the proceedings, but may
entitle the party to a reasonable continuance of the hearing.
K. If the owner or Responsible Person desires to submit any documents or evidence
to the Hearing Officer, then a copy of the same shall be served by mail on the City at
least five (5) days prior to the date of the administrative hearing. The failure of either
party to receive materials prior to the hearing shall not affect the validity of the
proceedings, but may entitle the party to a reasonable continuance of the hearing.
L. Other than is provided in this section, no other discovery is permitted. The
administrative hearing shall not be conducted according to the formal rules of evidence.
Any relevant evidence shall be admitted if it is the type of evidence on which reasonable
RX
persons are accustomed to rely on in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the
admission of such evidence over objection in civil actions in courts of competent
jurisdiction in this State. However, irrelevant or unduly repetitious evidence shall be
excluded.
M. The Hearing Officer may continue the hearing from time to time and /or request
additional information from the City, the owner or Responsible Person, or both prior to
issuing a written decision.
N. After considering all of the testimony and evidence submitted at the
administrative hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the administrative hearing. The written decision shall state the reasons for that
decision. The decision of the Hearing Officer shall be final.
O. The written decision of the Hearing Officer shall be served either by personal
delivery on the owner or Responsible Person or by deposit in the mail for delivery by the
United States Postal Service, in a sealed envelope, postage prepaid, addressed to such
owner or Responsible Person to be notified, at their last known address as the same
appears in the public records of the City.
P. Any owner or Responsible Person aggrieved by a written decision of a Hearing
Officer following an administrative hearing may obtain review of the decision by filing a
petition for review with the Orange County Superior Court, Harbor Justice Center in
accordance with the timelines and provisions as set forth in California Government
Code Section 53069.4.
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: Neither the adoption of this ordinance nor the repeal of any other ordinance
of this City shall in any manner affect the prosecution for violations of ordinances, which
violations were committed prior to the effective date hereof, nor be construed as a waiver
of any license or penalty or the penal provisions applicable to any violation thereof. The
provisions of this ordinance, insofar as they are substantially the same as ordinance
provisions previously adopted by the City relating to the same subject matter, shall be
construed as restatements and continuations, and not as new enactments.
Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within fifteen (15) days after its adoption, and it shall be effective thirty (30)
days after its adoption.
23
This Ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the day of , 2012, and adopted on
the day of , 2012, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES,COUNCILMEMBERS
ABSENT, COUNCILMEMBERS
MAYOR
ATTEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
in
AARON C. HARP, CITY ATTORNEY
24
ski --1� :��-
�EW�Rr CITY OF
°� @z NEWPORT BEACH
C�� /FORNP City Council Staff Report 3
Agenda Item No.
June 12, 2012
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Community Development Department
Kimberly Brandt, AICP, Director
949 - 644 -3226, kbrandt(a)newoortbeachca.aov
City Attorney's Office
Aaron C. Harp, City Attorney
949 - 644- 3131,aharp newportbeachca.gov
PREPARED BY: Matt Cosylion, Code Enforcement Supervisor
Kyle Rowen, Deputy City Attorney
APPROVED:
TITLE: An Ordinance establishing an Administrative Code Enforcement
Program, Newport Beach Municipal Code Chapter 1.05 and
Sections 1.04.010, 10.66.060 and 10.66.070
ABSTRACT:
City Council approval is requested for proposed amendments to Newport Beach
Municipal Code ( "NBMC ") Chapter 1.05 to establish an Administrative Code
Enforcement Program, amend Section 1.04.010 to add Civil Penalties and Sections
10.66.060 and 10.66.070 to align the administrative appeals process.
RECOMMENDATION:
Introduce Ordinance No. 2012-13 , amending NBMC Chapter 1.05 to establish an
Administrative Code Enforcement Program; Section 1.04.010 to add Civil Penalties; and
Sections 10.66.060 and 10.66.070 to align the administrative appeals process; and
pass to second reading on June 26, 2012.
FUNDING REQUIREMENTS:
Other than the staff time involved in preparing the draft ordinance, there are no direct
City expenses for implementing the proposed Ordinance. Additional revenue may be
generated as a result of the fine increases and creation of administrative and civil
penalties; however, staff does not have an estimate at this time.
1
Ordinance establishing an Administrative Code Enforcement Program
June 12, 2012
Page 2
DISCUSSION:
Background
NBMC Chapter 1.05 authorizes the use of administrative citations as a method of
enforcement for violations of the NBMC rather than the City filing a civil action or
criminal complaint in the Orange County Superior Court. However, the administrative
citation process is an inadequate deterrent in many situations. Staff believes additional
administrative remedies are needed to address the most serious violations of the NBMC
and to eliminate continuing or repetitive violations of the law.
At the February 14, 2012, City Council Study Session, staff presented an overview of
potential amendments to NBMC Chapter 1.05. These amendments, herein referred to
as the Administrative Code Enforcement Program Ordinance ( "Ordinance "), will provide
staff greater flexibility when enforcing the NBMC and should result in increased
compliance with the law.
As directed by City Council, staff met with representatives from the Newport Beach
Chamber of Commerce, Corona del Mar Chamber of Commerce, the Newport Beach
Restaurant Association, and various resident and home owner associations to address
any questions or concerns related to the Ordinance.
Issue /Analysis
Modeled after programs in the cities of Riverside, West Hollywood and San Diego, the
Ordinance will establish a two- tiered administrative citation fine schedule, allow for the
imposition of administrative and civil penalties, and authorize the City to recover
investigative and enforcement costs associated with abating violations of the NBMC.
The Ordinance also updates the current notification, administrative citation, and appeal
processes. Attachment A to this report provides a summary of the proposed changes.
Although the proposed Ordinance provides for additional code enforcement remedies,
the goal of the City in code enforcement matters will continue to emphasize voluntary
compliance whenever possible. Enforcement staff will use these modified enforcement
tools after all other options for achieving compliance have been exhausted.
Second Tier Administrative Fines
The current fine structure associated with administrative citations has proven to be
ineffective in deterring certain violations related to conditions for use permits, Short
Term Lodging Permits, Live Entertainment and Cafe Dance Permits, and other
discretionary permits.
The Ordinance proposes the establishment of a two- tiered fine schedule. Citations
would be issued in the following manner:
2
Ordinance establishing an Administrative Code Enforcement Program
June 12, 2012
Page 3
Tier One — With the exception of those violations subject to Tier Two level fines, Tier
One fines would be imposed for violations of the NBMC as currently provided by NBMC
Chapter 1.05.
Tier Two — At the discretion of the City Manager or his /her designee, only violations of
the following NBMC sections may be assessed at a Tier Two level:
• NBMC Chapter 5.28 - Violations of the conditions of approval for a Live Entertainment
Permit or operation without the required permit.
• NBMC Chapter 5.32 - Violations of the conditions of approval for a Cafe Dance Permit or
operating without the required permit.
• NBMC Chapter 5.95 — Violations of a Short Term Lodging Permit
• California Fire Code Sections 107.6 or 107.6.1 as adopted by NBMC Section 9.04.020 -
Exceeding maximum occupancy.
• NBMC Section 10.50.020(H) - A violation of any of the terms or conditions of a use
permit granted by the City of Newport Beach.
• NBMC Section 14.36.030 - Prohibited discharges affecting the Bay or Ocean.
As shown in Table 1 (below), Tier One reflects the current fine schedule. A violation of
the above sections could be subject to a Tier Two penalty if determined to be necessary
by the City Manager or his /her designee.
TABLE 1
Proposed Administrative Citation Fine Schedule
Citation Level
Tier One
Tier Two
First Violation
$100
$1,000
Second Violation
$200
$2,000
Third Violation
$500
$3,000
Administrative and Civil Penalties
Under the proposed Ordinance, NBMC Chapters 1.04 and 1.05 would be amended to
allow for the imposition of civil penalties, either administratively or in a civil action, until
the violation has been abated. In either the administrative or civil context, a hearing
officer or judge will set the appropriate penalty, up to $1,000 per day, based on the facts
of the case and criteria outlined in the Ordinance.
Cost Recovery
In addition to any fines and /or civil penalties, the proposed Ordinance allows the City to
fully recover administrative costs associated with the investigation and enforcement of
violations of the NBMC. Cost recovery may be pursued at the City's discretion, and
assessed fees may be appealed to the Hearing Officer or judge, as appropriate.
3
Ordinance establishing an Administrative Code Enforcement Program
June 12, 2012
Page 4
To provide for uniformity, the proposed Ordinance will align the appeals processes for
administrative citations, cost recovery fees, and civil fines issued for violations of NBMC
Chapter 10.66 — Loud and Unruly Gatherings.
Collections
NBMC Section 1.05.110 will be amended to allow the City to record a lien on a property,
authorize a special assessment against a property, or file a civil action in court to collect
any unpaid fines, penalties, costs or fees.
ENVIRONMENTAL REVIEW
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
The agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers the item).
Submitted by:
Kimberly Brand , AICP
Director
Aaron C. Harp
City Attorney
Attachment: A. Summary of proposed changes
B. Ordinance 2012-13
C. Proposed Amendments in Redline Format
4
City Council
Attachment A
Summary of Proposed Changes
0
ATTACHMENT A
SUMMARY OF CURRENT AND PROPOSED
CODE ENFORCEMENT REMEDIES
Code Enforcement
Current
Proposed
Remedies
Tier 1- Current Fine Structure
Administrative Citation
First violation- $100
Tier 2- proposed Fine Structure *:
Fine Structure
Second violation- $200
• First violation- $1,000
Third violation- $500
• Second violation- $2,000
-NBMC Chapter 1.05
• Third violation- $3,000
*Only for specific violations of the NBMC
Administrative &Civil
• Authorized under the proposed
Penalties
Not provided under the current
p
Ordinance,
Code
• Penalty determined by hearing
NBMC Chapter 1.05
officer or judge- up to $1,000 per
-NBMC Section 1.04.010
day.
Cost Recovery
Only available under limited
Administrative cost recovery allowed
-NBMC Chapter 1.05
circumstances
under the proposed Ordinance
• Refer delinquent accounts to
• Place a lien on a property
Collections
a collection agency
• Special assessment against a
-NBMC Chapter 1.05
• Option to file a claim in Small
p
property
• File a civil action in court
Claims Court
• Collection agency
• Unique timeframes for
• 30 days to appeal administrative
Appeals and Hearing
appeals-
citations and LUGO fines
procedures
o 15 days for administrative
. Aligns and updates procedures for
-NBMC Chapter 1.05
citations
o 30 days for LUGO
appeals and hearings
-NBMC Section 10.66.060
• Code is silent on hardship
• Authorizes Hearing officer to assess
-NBMC Section 10.66.070
waivers for administrative
civil penalties and administrative
citations
costs
Service Procedures-
• Responsible party must be
• Content and service procedures for
Administrative Citations
served personally, by mail, or
administrative citations will be
-NBCM Chapter 1.05
posting on property
updated
rW,
q
City Council
Attachment B
Ordinance 2012-
I
ORDINANCE NO. 2012-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH, CALIFORNIA, ESTABLISHING AN
ADMINISTRATIVE CODE ENFORCEMENT PROGRAM,
CIVIL PENALITIES AND IMPLEMENTING A UNIFORM
APPEALS PROCESS FOR ADMINISTRATIVE CITATIONS
AND LOUD AND UNRULY GATHERINGS BY AMENDING
CHAPTER 1.05 AND SECTION 1.04.010, 10.66.060 AND
10.66.070 OF THE NEWPORT BEACH MUNICIPAL CODE
WHEREAS, the City of Newport Beach ("City") is a charter city, governed by a
charter adopted by the citizens of the City; and
WHEREAS, Article XI, Section 5 of the Constitution of the State of California
authorizes charter cities to enact ordinances with respect to their municipal affairs; and
WHEREAS, the City Council finds and declares that the proposed ordinance
relates to matters that are solely a municipal affair and not matters of statewide concern;
and
WHEREAS, the City Council finds and declares that it is the intent of this Ordinance
to protect the public health, safety, general welfare, and provide for the public enjoyment of
the City and that violations of the Newport Beach Municipal Code are a public nuisance, a
threat to the public health, safety and general welfare and prevent the public from enjoying
the City; and
WHEREAS, the City Council finds that the proposed ordinance will not result in a
direct or reasonably foreseeable indirect physical change in the environment (Section
15Oo0(cx2) of the California Environmental Quality Act Guidelines); and
WHEREAS, this agenda item has been noticed in accordance with the Ralph M.
Brown Act (72 hours in advance of the public meeting) and the item appeared upon the
agenda for this meeting which was posted at City Hall and on the City's website.
NOW THEREFORE, in consideration of the preceding findings and declarations,
the City Council of the City of Newport Beach, California, HEREBY ORDAINS as follows:
H
Section 1: Chapter 1.05 of Newport Beach Municipal Code is hereby amended
to read as follows:
Chapter 1.05
ADMINISTRATIVECODE ENFORCEMENT PROGRAM
Sections:
1.05.005 Legislative Findings and Statement of Purpose.
1.05.010 Definitions.
1.05.020 Authority and Administrative Citation-Fines.
1.05.030 Service Procedures.
1.05.040 Contents of Administrative Citation.
1.05.050 Administrative Costs Recovery.
1.05.060 Appeal of Administrative Citation.
1.05.065 Administrative Civil Penalties.
1.05.070 Hearing Officer.
1.05.080 Hearing Procedure.
1.05.090 Hearing Officer's Decision.
1.05.100 -Failure to Pay Fines, Penalties, Costs or-Fees.
1.05.110 Right to Judicial Review of Hearing Officer's Decision on
Administrative Citation.
1.05.120 Administrative Remedies Not - Exclusive.
1.05.005 Legislative f=indings and Statement of Purpose.
A. The City Council finds that the enforcement of The Newport Beach Municipal
Code ( "the Code ") throughout the City is an important public service and is vital to the
protection of the public's health, safety and quality of life.
B. The City Council finds that there is a need for an alternative method of
enforcement for various violations of the Municipal Code. The City Council also finds
that an appropriate method for enforcement of various violations is an Administrative
Code enforcement Program that will reduce the burden on the judicial system while
providing full due process for those alleged to be responsible for a violation of the Code.
C. The procedures established in this chapter are in addition to criminal, civil or
other legal remedies that may be available to the City to enforce violations of the Code
or applicable State Codes.
D. The City Council finds and determines that enforcement of the provisions of
the Municipal Code and conditions on entitlements or permits are municipal affairs as
well as matters of purely local concern to the citizens of Newport Beach.
E. The City Council finds that the adoption and implementation of this
Administrative Code Enforcement Program is within the power and authority of the City
of Newport Beach as a charter city and will achieve the following goals:
1. To promote and protect the public health, safety and welfare of the
citizens of the City of Newport Beach;
2. To help ensure compliance with the Code and State Codes, ordinances
and regulations in a timely and efficient manner;
3. To provide for an administrative process to appeal the imposition of
administrative citations, fines, penalties and costs that will fully comport with due
process and provide those alleged to be in violation of the Code with the right to
a fair hearing without the need for legal counsel;
4. To provide a method to hold parties responsible when they fail or refuse to
comply with the provisions of the Code, ordinances, agreements or terms and
conditions on entitlements in the City of Newport Beach;
5. To reduce the burden on the judicial system and minimize the time and
expense of defending the alleged violation on the part of the Responsible
Person.
F. Use of this chapter shall be at the sole discretion of the City.
1.05.010 Definitions.
For purposes of this chapter, the following definitions shall apply
A. "Administrative Costs" means all costs incurred by or on behalf of the City from
the first discovery of a violation of this Code through the appeal process and until
compliance is achieved, including but not limited to, staff time in investigating the
violation, an inspection of the property where the violation occurred, a preparation of
investigation reports; notification; preparation for and attendance at any hearings;
attorneys' fees; and fees paid to the Administrative Hearing Officer. "Administrative
Costs" shall not include the administrative citation fines; the administrative civil penalties
assessed pursuant to this chapter; include late payment charges that accrue; or
collection costs incurred, as a result of unpaid administrative citation fines.
B. 'Enforcement Officer" means any officer or employee with the authority to
enforce the Code as provided in Chapter 1.12.
C. "Responsible Peron" means any natural person, parent or legal guardian of any
person under the age of eighteen (18) years, joint venture, joint stock company,
partnership, association, club, company, corporation, business trust, or organization, or
the manager, lessee, agent, officer or employee of any of them, or any of the foregoing
who own, possess, control or have a legal or equitable interest in real property, who
violates, maintains or allows a violation this Code.
1.05.020 Authority and Administrative Citation Fines.
A. Any responsible Person violating any provision of this 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 Newport Beach Municipal
Code, any Codes adopted by the City Council (i.e.: Building'Code, Fire Code, etc.), and
the failure to comply with any condition imposed by any entitlement, permit, agreement
or environmental document issued or approved pursuant to this .Code or State law.
B. Each and every day a violation of this Code exists constitutes a separate and
distinct offense.
C. An administrative fine shall be assessed by means of an administrative citation
issued by the Enforcement Officer and shall be payable directly to the City.
D. Where no administrative fine amount is specified, established by resolution of the
City Council, or established by any other provision of this Code, administrative fines
shall be assessed in the following amounts:
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 ordinance or permit within one year from the date of a prior violation;
3. A fine not exceeding five hundred dollars ($500.00) for a third violation, or
any subsequent violation, of the same ordinance or permit within one year from
the date of the prior violations.
E. In the case of administrative citations issued for violations in a Safety Enhancement
Zone established pursuant to Section 1.04.060 of this Code, administrative fines shall
be assessed in the following amounts:
A fine of three hundred dollars ($300.00) for a first violation;
2. A fine of six hundred dollars ($600.00) for a second violation of the same
ordinance or permit within one year from the date of a prior violation;
3. A fine not exceeding one thousand dollars ($1,000.00) for a third violation,
or any subsequent violation, of the same ordinance or permit within one year
from the date of the prior violations.
F. In the case of administrative citations issued for violations of Chapter 5.28 [Live
Entertainment Establishments]; Chapter 5.32 [Cafe Dances]; Chapter 5.95 [Short Term
Lodging Permit]; Section 10.50.020(H) [Violation of terms or conditions of a Use Permit
issued by the City]; Section 14.36.030 resulting in bay or beach closure [Illicit
Connections and Prohibited Discharges]; California Fire Code section 107.6 (as
adopted by Code Section 9.04.010); or California Fire Code section 107.6.1 (as adopted
by Code Section 9.04.020), administrative fines shall be assessed in the following
amounts when authorized by the City Manager or his or her designee:
A fine not exceeding one thousand dollars ($1,000.00) for a first violation;
2. A fine not exceeding two thousand dollars ($2,000.00) for a second
violation of the same ordinance or permit within one year from the date of the
prior violation;
3. A fine not exceeding three thousand dollars ($3,000.00) for a third
violation, or any subsequent violation, within one year from the date of the prior
violations.
G. All fines imposed under this Section shall be due and payable to the City's
'Finance Department within thirty (30) days from the service of an administrative citation.
H. The fines imposed under this Section shall be in addition to any other fines,
penalties, and /or fees imposed for violations of this Code or local, State, and /or 'Federal
law.
1.05.030 Service Procedures.
A. Notwithstanding any other provision of this Code, any notice, administrative
citation, or any other document issued under this Chapter may be served by any of the
following methods:
Personal Service.
2. Deposit in the mail for delivery by the United States Postal Service, in a
sealed envelope, postage prepaid, addressed to such person to be notified, at
their last known address as the same appears in public records or public records
related to title or ownership of the property; or
3. If service cannot be accomplished by subparagraphs (1) or (2) above, by
posting the notice or administrative citation conspicuously on or in front of the
subject property.
B. Personal service shall be deemed to have been completed when served on the
Person. Service by mail shall be deemed to have been completed at the time of deposit
by the City in the mail for delivery by the United States Postal Service. Service by
posting shall be deemed to have been completed at the time of posting.
C. Failure to receive any notice, administrative citation or any other document or
correspondence issued under this Code does not affect the validity of proceedings
conducted hereunder.
1.05.040 Contents of Administrative Citation.
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 permit conditions violated and a description of the
violation(s);
3. If applicable to the violation, 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);
4. The amount of the fine for the violation(s);
5. An explanation of how the fine shall be paid and the time period by which
it shall be paid;
S. Identification of rights of appeal, including the time within which the citation
may be contested and the place to obtain a request for hearing form to contest
the administrative citation; and
7. The name and signature of the Enforcement Officer
1.05.050 Administrative Costs Recovery
A. This section establishes procedures for the recovery of Administrative Costs.
The intent of this section is to recover the City's Administrative Costs reasonably related
to enforcement actions. Any Responsible Person violating any provision of this Code
may be subject to the recovery of the City's Administrative Costs pursuant to the
procedures set forth in this Chapter
B. Record of Administrative Costs. Should the City seek to recover its
Administrative Costs, each Enforcement Officer shall produce records of all
Administrative Costs associated with the investigation and /or processing of violations
and enforcement of this Code, and shall recover the costs from the Responsible Person
in compliance with this section. Staff time shall be calculated at an hourly rate
established and revised from time to time by resolution by the Council.
C. Notice of Intent to Charge Administrative Costs. Upon investigation and a
determination that a violation of any provisions of this'Code is found to exist, the
M
Enforcement Officer shall notify the Responsible Person of the existence of the
violation, the City's intent to charge the Responsible Person for all Administrative Costs
associated with enforcement.
D. Summary of Administrative Costs. At the conclusion of an enforcement action,
the Enforcement Officer shall send a Summary of Administrative Costs to the
Responsible Person. The Summary of Administrative Costs shall include a notice
advising the Responsible Person of their right to appeal, and that if no written appeal is
timely filed, the Responsible Person will be liable for the Administrative Costs. The
failure of any Responsible Person to timely appeal with the City shall be deemed a
failure to exhaust the Responsible Person's administrative remedies with regard the
Summary of Administrative Costs.
E. In the event that no appeal of the Summary of Administrative Costs is timely filed,
or the Hearing Officer affirms the validity of the costs as part of the enforcement action,
the Responsible Person shall be liable to the City in the amount stated in the Summary
of Administrative Costs or any lesser amount determined by the Hearing Officer.
F. Request for Hearing on Administrative Costs. A Responsible Person who
receives a Summary of Administrative Costs shall have the right to an administrative
hearing before a Hearing Officer on their objections to the Summary of Administrative
Costs.
1. Request for Hearing. A request for hearing shall be filed with the City's
Finance Department within thirty (30) days of the service of the Summary of
Administrative Costs on a form provided by the Finance Department.
2. Hearing. Within sixty (60) days of the filing a request for hearing, and on
ten days' prior written notice to the Responsible Person, a Hearing Officer shall
hold a hearing on the objections to the Summary of Administrative Costs.
3. Factors to be considered by a Hearing Officer. The Hearing Officer shall
consider whether the costs identified in the Summary of Administrative Costs are
reasonable under the circumstances of the enforcement action including the
following:
a. Whether the Responsible Person created the violation;
b. Whether there is a present ability to correct the violation;
C. Whether the Responsible Person acted promptly to correct the
violation;
d. The degree of cooperation provided by the Responsible Person;
and
4. The failure of any Responsible Person to appear at the administrative
hearing before the Hearing Officer on the Summary of Administrative Costs shall
be deemed a failure to exhaust the Responsible Person's administrative
remedies with regard to the Summary of Administrative Costs.
G. Any Responsible Person aggrieved by the Hearing Officer's decision under this
Section may obtain judicial review of that decision by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in California Code of Civil Procedure Section 1094.6.
1.05.050 Appeal of Administrative Citation.
A. Any recipient of an administrative citation may contest that there was a violation
of the Code or that he or she is the Responsible Person by completing a request for
hearing form and returning it to the City's finance Department within thirty (30) days
from the date of service of the administration citation, together with an advanced deposit
of the fine or a notice that a request for an advance deposit hardship waiver pursuant to
Subsection B has been filed. . 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. Any Responsible Person who requests a hearing to contest that there was a
violation of the Code or that he or she is the Responsible Person for the violation and
who is financially unable to make the advance deposit of the fine as required may file a
request for an advance deposit hardship waiver within fifteen (15) calendar days from
the date of service of the citation. The failure of any person to timely file a written
request for an advance deposit hardship waiver with the City's Finance Director, or his
or her designee, shall be deemed a failure to exhaust the person's administrative
remedies with regard to the advance deposit hardship waiver.
1. The request for an advance deposit hardship waiver shall be in writing and
describe with particularity the Responsible Person's actual financial inability
demonstrating why all or a part of the fine cannot be paid. Further, the written
request for an advance deposit hardship waiver must be accompanied by a
sworn affidavit, together with any supporting documents or materials,
demonstrating to the satisfaction of the City's Finance Director, or his or her
designee, the Responsible Person's actual financial inability that necessitates an
advance deposit hardship waiver. The City's Finance Director, or his or her
designee, is entitled to request additional documentation and information from
the Responsible Person in order to fully assess the waiver request. The failure of
any Responsible Person to timely submit all requested additional documentation
and information to the City's Finance Director, or his or her designee, as
requested shall be deemed a failure to exhaust the Responsible Person's
administrative remedies with regard to the advance deposit hardship waiver.
2. Once a complete written request for an advance deposit hardship waiver
is filed with the City's Finance Director, or his or her designee, the requirement of
depositing the full amount of the fine shall be stayed until the City's Finance
Director, or his or her designee, determines whether to grant, grant in part, or
deny the request. The written determination of the City's Finance Director, or his
or her designee, shall be served on the person requesting the advance deposit
hardship waiver as provided for in this Code. The written determination of the
City's Finance Director, or his or her designee, shall be final.
3. If the City's Finance Director, or his or her designee, grants the advance
deposit hardship waiver, the Responsible Person shall not be required to deposit
the fine in advance of the hearing.
4. If the City's Finance Director, or his or her designee, grants in part the
advance deposit hardship waiver, the Responsible Person shall remit that
amount of the fine as a deposit that the City's Finance Director, or his or her
designee, determines the Responsible Person has the ability to pay within ten
(10) days of that decision or thirty days from service of the administrative citation,
whichever is later.
5. If the City's Finance Director, or his or her designee, denies the request
for an advance deposit hardship waiver, the Responsible Person shall remit the
full amount of the fine as a deposit to the City within ten (10) days of that decision
or thirty days from service of the administrative citation, whichever is later.
6. The granting, or granting in part, of any request for an advance deposit
hardship waiver shall not excuse or discharge any continuation or repeated
occurrence of any violation of this Code, nor shall it bar further enforcement
action by the City.
7. The granting, or granting in part, of any request for an advance deposit
hardship waiver shall not excuse the Responsible Person from paying the full
amount of the fine if the administrative citation is upheld by the hearing officer
following an administrative hearing.
1.05.065 Administrative Penalties.
A. In addition to any applicable fine provided for by this Code, any Responsible
Person violating any provision of this Code may also be subject to the assessment of
administrative penalties pursuant to the procedures set forth in this Chapter.
B. Whenever an Enforcement Officer determines that a violation of one or more
provisions of this Code has occurred or continues to exist, a written Administrative
Penalties Notice and Order may be issued to each Responsible Person.
C. Administrative penalties, if awarded, assessed, or imposed; shall be assessed at
a daily rate, the amount of which shall be determined by the Hearing Officer and set
forth in an Administrative Penalties Enforcement Order following the presentation of
evidence at an administrative hearing according to the procedures established in this
Chapter. Administrative penalties may be assessed separate and in addition to fines
and Administrative Costs authorized by this Code.
D. The maximum legal rate for administrative penalties shall be one thousand
dollars ($1,000.00) per day, per violation. The maximum legal amount of administrative
penalties shall be two hundred thousand dollars ($200,000.00), plus interest on unpaid
penalties, per parcel of real property, including any structures located thereon, for all
violations of this Code, including continuing violations, existing at the time the
Administrative Penalties Notice and Order is issued by the City. Violations first
occurring after the issuance of an Administrative Penalties Notice and Order shall be
subject to enforcement through the issuance of a separate Administrative Penalties
Notice and Order.
E. The Administrative Penalties Notice and Order shall provide notice of the
following: the alleged violation(s); a brief description of the remedial or corrective action
required; a compliance deadline; the date and time set for a hearing before a Hearing
Officer should the corrective action not be taken, and notice that each violation not
corrected by the compliance deadline will be subject to an order requiring payment of
administrative penalties in an amount determined by a Hearing Officer; and an order to
correct the violation(s).
F. More than one Administrative Penalties Notice and Order may be issued against
the same Responsible Person if each such subsequent notice and order concerns
different dates, different violations, or different locations.
G. In determining the date when administrative penalties start to accrue, a Hearing
Officer may consider the date when the City first discovered the violation as evidenced
by the issuance of an administrative citation, Administrative Penalties Notice and Order,
or any other written notice or correspondence to any Responsible Person.
H. In determining the amount of administrative penalties to be assessed at a daily
rate for each violation, the Hearing Officer may consider some or all of the following
factors:
The duration of the violation;
2. The frequency of recurrence of the violation;
3. The seriousness of the violation;
4. The history of the violation;
10
5. The Responsible Person's conduct after issuance of any notice;
6. The good faith effort to comply;
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
I. The failure of any Responsible Person to appear at the administrative hearing
before the Hearing Officer on the Administrative Penalties Notice and Order shall be
deemed a failure to exhaust the Responsible Person's administrative remedies with
regard to the Administrative Penalties Notice and Order.
J. When the Responsible Person fails to comply with the Administrative Penalties
Notice and Order by correcting the violation(s) and bringing the property into
compliance with this Code, the Administrative Penalties Notice and Order shall be set
for an administrative hearing. In the interests of justice, an Enforcement Officer may
reschedule the date and time for the administrative hearing on an Administrative
Penalties Notice and Order upon written notice to the Responsible Person.
K. Within forty -five (45) days of the completion of the administrative hearing on an
Administrative Penalties Notice and Order, the Hearing Officer shall issue an
Administrative Penalties Enforcement Order. The Administrative Penalties Enforcement
Order shall become final and take effect on the date it is signed by the Hearing Officer.
The Administrative Penalties Enforcement Order shall contain the following information:
Date(s) of the administrative hearing;
2. Identification by name of each Enforcement Officer, Responsible Person
and any other person or witness attending the hearing;
3. A determination regarding the sufficiency of notice for due process
purposes;
4. A summary of the evidence presented by each witness, including exhibits;
5. Findings of fact, analysis of applicable sections of this Code, and
conclusions of law as to the issues relevant to the administrative hearing;
6. A determination and assessment of administrative civil penalties and
Administrative costs to be awarded to the City, if any;
7. Notice of appeal rights and judicial review pursuant to California Code of
Civil Procedure Section 1094.6;
11
8. Signature of the Hearing Officer and the signature date.
L. The Administrative Penalties Enforcement Order shall be served on all
Responsible Persons by first -class mail, postage prepaid and include a copy of an
affidavit or certificate of mailing.
M. Upon the failure of the Responsible Person to comply with terms and deadlines
set forth in the Administrative Penalties Enforcement Order, the Enforcement Officer
may use all appropriate legal means to recover the administrative penalties assessed
and obtain compliance with the Administrative Penalties Enforcement Order.
N. After the Hearing Officer issues an Administrative Penalties Enforcement Order,
the Enforcement Officer shall periodically and regularly inspect the subject property to
determine whether the property has been brought into compliance with the
Administrative Penalties Enforcement Order and whether daily penalties should
continue to accrue.
O. Any Responsible Person aggrieved by an Administrative Penalties Enforcement
Order may obtain judicial review of that order by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in California Code of Civil Procedure Section 1094.6.
P. It is unlawful for a Responsible Person who has been served with a copy of the
final Administrative Penalties Enforcement Order issued pursuant to this Section to fail
to comply with that order.
1. The failure to comply with a final Administrative Penalties Enforcement
Order may be prosecuted as an infraction or misdemeanor at the discretion of
the City Attorney.
2. The failure to comply with a final Administrative Penalties Enforcement
Order may result in alternative remedies, such as civil injunction, abatement,
receivership, or any other legal remedy.
1.05.070 Hearing Officer.
A. The Newport Beach City Manager shall designate the Hearing Officer for any
administrative hearing called for in this Code. The Hearing Officer shall not be a
Newport Beach City employee. The employment, performance evaluation,
compensation and 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.
B. Disqualification. Any person designated to serve as a Hearing Officer is subject
to disqualification for actual bias, prejudice, interest, or for other reason for which a
12
judge may be disqualified after a showing of good cause under the laws of the State of
California.
C. Powers. The Hearing Officer shall have the power to:
Conduct administrative hearings as provided under the authority of this
Code;
2. Continue a hearing based on good cause shown by one of the parties to
the hearing or upon the Hearing Officer's own motion;
3. Request additional information from the Enforcement Officer or the
Responsible Person provided notice of such request is given to all parties;
4. Exercise continuing jurisdiction over the subject matter of an
administrative hearing for the purposes of granting a continuance, ensuring
compliance with any Order, modifying any Order, or where extraordinary
circumstances exist, granting a new administrative hearing;
5. Require a Responsible Person to post a bond to ensure compliance with
an Administrative Penalties Enforcement Order;
6. Rule upon the merits of an administrative hearing upon consideration of
the evidence submitted and issue a written decision resolving the case;
7. Uphold, award, impose, assess, or deny a fine or penalty authorized under
this Code;
Assess Administrative Costs according to proof;
9. Set, increase, or decrease, according to proof, the amount of fine or
penalty or the daily rate of such fine or penalty sought by the City to be awarded,
imposed, or assessed in those cases where the fine or penalty is not fixed but is
subject to a range as otherwise established by this Code;
10. In those cases where the fine or penalty is not fixed but is subject to a
range as otherwise established by this code, determine the date certain upon
which the assessment of administrative penalties shall begin; and, where the
corrections are subsequently completed to the City's satisfaction, the date certain
upon which the assessment of administrative penalties shall end. If the violations
have not been so corrected, the daily accrual of the penalties assessed shall
continue until the violations are corrected or the legal maximum limit is reached;
and
11. Where appropriate in administrative actions arising from the issuance of
an Administrative Penalties Notice and Order and as a condition of compliance in
13
correcting the violations at issue; require each Responsible Person to cease
violating this Code and to make all necessary corrections.
1.05.080 Hearing Procedure.
A. No hearing to contest an administrative citation or Summary of Administrative
'Costs and Notice before a Hearing Officer shall be held unless and until a request for
hearing form has been completed and submitted, and, if applicable, the fine has been
deposited in advance or an advance deposit hardship waiver has been issued.
B. A hearing before the Hearing Officer may be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this Chapter. The Responsible Person
requesting the hearing shall be notified of the time and place set for the hearing at least
ten days prior to the date of the hearing. The City and Responsible Person may
mutually agree to waive, modify or change the date of the preceding.
C. For a hearing contesting an administrative citation, the Hearing Officer shall only
consider evidence that is relevant to whether the violations) occurred and whether the
Responsible Person has caused or maintained the violation(s) of the Code on the
date(s) specified.
D. The Responsible Person shall be given the opportunity to testify and present
relevant witnesses and evidence during the hearing.
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.
F. The administrative citation, any notice issued under the provisions of this Code,
and any additional documents submitted by the Enforcement Officer shall constitute
prima facia evidence of the respective facts contained in those documents.
G. Either party may submit additional written reports, documents or evidence to the
Hearing Officer for consideration, with a copy served by mail on the other party at least
five days prior to the date of the hearing. The failure of either party to receive materials
prior to the hearing shall not affect the validity of the proceedings, but may entitle the
party to a reasonable continuance of the hearing.
H. At least ten days prior to the hearing, the recipient of an administrative citation shall
be provided with copies of the citations, reports and other documents or evidence
submitted or relied upon by the Enforcement Officer. No other discovery is permitted.
Formal rules of evidence shall not apply. Administrative hearings are intended to be
informal in nature. Any relevant evidence shall be admitted if it is the type of evidence
on which reasonable persons are accustomed to rely on in the conduct of serious
affairs, regardless of the existence of any common law or statutory rules which might
14
make improper the admission of such evidence over objection in civil actions in courts
of competent jurisdiction in this State. Irrelevant and unduly repetitious evidence shall
be excluded.
1.05.090 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 hearing and
shall list in the decision the reasons for that decision.'For a hearing on an administrative
citation, the Hearing Officer may uphold or deny the administrative citation. The
decision of the Hearing Officer shall be final.
B. If the Hearing Officer determines that the administrative citation should be upheld,
then the fine amount on deposit with the City shall be retained by the City.
C. If the Hearing Officer determines that the administrative citation should be denied
and the fine was deposited with the City, then the City shall promptly refund the amount
of the deposited fine.
D. 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 1.08.080 of this
Code.
1.05.100 Failure to Pay Fines, Penalties, Costs or Fees.
A. The amount of any fine, penalty, cost or fee imposed pursuant to this Chapter
shall be deemed a debt owed to the City.
B. The failure of any person to pay an assessed fine, penalty, cost or fee by the
deadline specified shall result in the assessment of additional late fees.
C. It is intended that persons causing, maintaining, and /or permitting the violation,
bear the financial burden of the City's enforcement efforts. The City may pursue any
and all legal and equitable remedies to collect unpaid fines, penalties, costs or fees
imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit
of any other remedy. Remedies available to the City to collect unpaid fines, penalties,
costs or fees include, but are not limited to, the following:
Referring the delinquent account to collection;
2. Authorizing a lien to be recorded on the property for any unpaid fines,
penalties, costs, or fees imposed;
3. Authorizing a special assessment upon the property for any civil fines,
penalties, costs, or fees imposed against the owner; and /or
15
4. Filing a civil action in a court of competent jurisdiction.
D. Any person who fails to pay any fine, penalty, cost or fee shall be liable in any
proceeding brought by the City for the costs incurred in securing payment of the unpaid
amount, including attorneys' fees. Such costs shall be in addition to any penalties,
interest, and /or late fees imposed upon the unpaid fine, penalty, cost or fee.
1.05.110 Right to Judicial Review of Hearing Officer's Decision on Administrative
Citation.
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 Orange County Superior Court in accordance with the
timelines and provisions as set forth in California Government Code Section 53069.4.
1.05.120 Administrative Remedies Not Exclusive.
The procedures established in this Chapter for the use of administrative citations and
the administrative civil penalties process, and the procedures established in other
chapters of this code for administrative abatement and summary abatement, as means
for addressing violations of this code shall be in addition to criminal, civil or other legal
or equitable remedies established by law that may be pursued to address violations of
this code and the use of this chapter shall be at the sole discretion of the City.
Section 2: Section 1.04.010 of Newport Beach Municipal Code is hereby amended to
read as follows:
1.04.010 Violations, Penalties and Enforcement.
The provisions of this section represent the means and methods by which the City of
Newport Beach intends to secure compliance with the provisions of this Code. The City
may use any or all of the enforcement options in securing compliance with the
provisions of this Code and multiple enforcement options may be used to achieve
compliance with respect to persons who commit continuing violations. A separate
offense shall be deemed to have been committed whenever: (a) a person repeats the
act that constitutes the violation; or (b) any condition or circumstance that constitutes a
violation is allowed to exist for more than twenty -four hours.
A. 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. Written
citations for infractions may be issued by police officers or nonsafety employees
designated in Section 1.12.020. Except as provided in subsection B of this section, any
person convicted of an infraction under the provisions of this Code shall be punishable
either by fines as is specified in the currently adopted Uniform Infraction Bail Schedule
used by the Orange County Municipal Courts, or where no fine is specified therein by:
16
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 ordinance within one year;
3. A fine not exceeding five hundred dollars ($500.00) for each additional
violation of the same ordinance within one year.
B. Safety Enhancement Zone. For any violation of the Newport Beach Municipal
Code that is committed within an area that has been designated by the City Council as
a Safety Enhancement Zone pursuant to Section 1.04.060, and during the time that
designation is effective, the fine shall be treble the amount otherwise prescribed or
where the violation is considered an infraction and no fine is specified by:
1. A fine not exceeding three hundred dollars ($300.00) for a first violation;
2. A fine not exceeding six hundred dollars ($600.00) for a second violation
of the same ordinance within one year;
3. A fine not exceeding one thousand dollars ($1,000.00) for each additional
violation of the same ordinance within one year.
C. 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 nonsafety
employees designated by Newport Beach Municipal Code Section 1.12.020. Any
person convicted of a misdemeanor under the provisions of this Code shall be punished
by a fine not exceeding one thousand dollars ($1,000.00) or imprisonment for a term not
exceeding six months, or by both such fine and imprisonment.
D. Civil Action. The City Attorney, by and at the request of the City Council, 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, in addition to all other remedies, costs, fines and fees, the court may
impose civil penalties payable to the City in an amount not to exceed one thousand
dollars ($1,000.00) per violation for each day the violation is found to exists against any
person who commits, continues, operates, allows or maintains any violation of any
provision of this Code. In determining the amount of the civil penalties to be assessed
on a daily rate for each violation, the court may consider some or all of the following
factors:
The duration of the violation;
2. The frequency of recurrence of the violation;
17
3. The seriousness of the violation;
4. The history of the violation;
5. The person's conduct after issuance of any notice;
6. The good faith effort to comply;
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
E. Administrative Code Enforcement Program. 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 take any action authorized under the provisions of chapter 1.05.
Section 3: Section 10.66.0-00 of Newport Beach Municipal rode is hereby amended to
read as follows:
10.66.060 Violation — Penalty —Civil Fine.
A. The following civil fines shall be assessed for violations of Section 10.66.020(A):
A civil fine not exceeding five hundred dollars ($500.00) for a first violation;
2. A civil fine not exceeding one thousand dollars {$1,000.00) for a second
violation within ninety (90) days of the first violation;
3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third
violation within ninety (90) days of the first violation; and
4. A civil fine not exceeding three thousand dollars {$3,000.00) for a fourth
and any subsequent violations within ninety (90) days of the first violation.
B. The following civil fines shall be assessed for violations of Section 10.66.02(YA)
that occur within the West Newport Safety Enhancement Zone, as established by
Section 1.04.060:
1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00)
for a first violation;
2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second
and any subsequent violations within ninety (90) days of the first violation.
IR
C. Any responsible person who is present at a residential unit that has a notice
posted pursuant to Section 10.66.030(A) shall be presumed to have notice of the prior
violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according
to the number of violation(s) at the residential unit within the preceding ninety (90) day
period pursuant to the civil fine schedules in subsections (A) or (B) of this section.
D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for
a violation of Section 10.66.030(6). Additionally, any person violating Section
10.66.030(B) may be prosecuted for a misdemeanor, and upon conviction, shall be
punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment
for a term not exceeding six months, or by both such fine and imprisonment.
E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for
a violation of Section 10.66.030(C).
F. All civil fines imposed under this chapter shall be due and payable to the City's
Finance Department within the earlier of thirty (30) days from the issuance of a citation
or service of the notice of violation.
G. Any owner or responsible person who intends to request an administrative
hearing pursuant to Section 10.66.070 may request an advance deposit hardship waiver
pursuant to Section 1.05.060(B). An owner or Responsible person who is unable to pay
all or a part of the civil fine due to the person's actual financial inability may file a written
request for a civil fine waiver with the City's Finance Director, or his or her designee,
within fifteen (15) calendar days from the date of service of the citation or notice,
whichever is earlier. The failure of any owner or responsible person to timely file a
written request for a civil fine waiver with the City's Finance Director, or his or her
designee, shall be deemed a failure to exhaust the owner's or responsible person's
administrative remedies with regard to the same.
1. The written request for a civil fine waiver shall be in writing and describe
with particularity the owner's or Responsible person's actual financial inability
demonstrating why all or a part of the fine should be waived. Further, the written
request for a civil fine waiver must be accompanied by a sworn affidavit and
demonstrate to the satisfaction of the City's Finance Director, or his or her
designee, the owner's or Responsible person's actual financial inability that
necessitates a waiver of all or a part of the civil fine amount. The City's Finance
Director, or his or her designee, is entitled to request additional documentation
and information from the owner or Responsible person in order to fully assess
the owner's or Responsible person's actual financial inability. The failure of any
owner or Responsible person to timely submit all requested additional
documentation and information to the City's Finance Director, or his or her
designee, as requested shall be deemed a failure to exhaust the owner's or
responsible person's administrative remedies with regard to the same.
19
2. Once a complete written request for a civil fine waiver is filed with the
City's Finance Director, or his or her designee, the requirement to pay the civil
fine shall be stayed until the City's Finance Director, or his or her designee,
determines whether to grant or deny the request.
3. If the City's Finance Director, or his or her designee, grants the written
request for a civil fine waiver, the owner or Responsible person shall not be
required to pay the civil fine. If the City's Finance Director, or his or her designee,
determines that the owner or responsible person has the financial ability to pay
all or a part of the civil fine on a reasonable payment plan, the City's Finance
Director, or his or her designee, shall so notify the owner or Responsible person
and the owner orresponsible person shall execute any agreements required by
the City's Finance Director, or his or her designee, to establish the payment plan.
4. The granting of any request for a civil fine waiver or payment plan shall not
excuse or discharge any continuation or repeated occurrence of any violation of
this chapter, nor shall it bar further enforcement action by the City.
5. If the City's Finance Director, or his or her designee, denies the written
request for a civil fine waiver the civil fine must be paid within ten (10) calendar
days from the date of service of the City Finance Director's, or his or her
designee, determination.
6. The .City Finance Director's, or his or her designee, determination shall be
(a) made within fifteen (15) calendar days of the date of receipt of the complete
request or any additional information as requested by the City finance Director,
or his or her designee,; (b) be in writing; and (c) served either by personal
delivery on the owner or responsible person or by deposit in the mail for delivery
by the United States Postal Service, in a sealed envelope, postage prepaid,
addressed to such owner or responsible person. The decision of the City's
Finance Director, or his or her designee, shall be final.
H. The civil fines and criminal penalties imposed in this chapter shall be in addition
to any other fines and /or penalties imposed for violations of local, State, and /or-Federal
law during a loud or unruly gathering.
I. Any owner who does not reside within the residential unit and has (1) included
covenants within the written lease or rental agreement for the premises on which a loud
or unruly gathering occurs that contain specific language prohibiting the activities
described in this chapter; and (2) demonstrated due diligence in abating an
unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering shall not
be liable under this chapter. Prior to July 1, 2012, an owner who does not reside within
the residential unit and has a written lease or rental agreement for the residential unit on
which a loud or unruly gathering has occurred shall only need to demonstrate due
diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or
unruly gathering to not be liable under this chapter.
20
J. Any owner who does not reside within the residential unit, has a written lease or
rental agreement for the residential unit and had the same residential unit posted with a
notice pursuant to Section 10.66.030(A) may file a written petition with the Chief of
Police, or his or her designee, requesting permission to remove posted notice prior to
the expiration of the ninety (90) day period. The Chief of Police, or his or her designee,
may grant the owner's written petition upon a satisfactory showing by the owner that the
responsible person(s) for the loud or unruly gathering are no longer in possession of or
allowed to occupy the residential unit.
K. Failure to receive any notice specified in this chapter does not affect the validity
of proceedings conducted hereunder.
Section 4: Section 10.66.070 of Newport Beach Municipal Code is hereby amended to
read as follows:
10.66.070 Administrative Hearing, Appeal.
A. Any owner or responsible person who, pursuant to this chapter, is (1) subject to a
civil fine; or (2) has had their residential unit posted with a notice concerning a loud or
unruly gathering, shall have the right to file a request for an administrative hearing to
appeal the imposition of the civil fine and /or the posting of the premises. Any such
request shall be submitted to the City's Finance 'Department in writing on the form
required by the City within thirty (30) days from the date of service of the citation, notice
of violation or posting of the premises, whichever is earlier. The written request for an
administrative hearing shall be submitted to the City with an advance deposit of the civil
fine unless a request for a civil fine waiver or an advance deposit hardship waiver has
been filed pursuant to Sections 10.66.060(G) and 1.05.060(6). No administrative
hearing before a Hearing Officer shall be held unless and until a request for hearing
form has been completed and submitted, and, the fine has been deposited in advance
or an advance deposit hardship waiver has been issued.
B. The failure of any owner or Responsible person to timely file a written request for
a hearing, as required in this section, shall be deemed a failure to exhaust the owner's
or Responsible person's administrative remedies and render the citation, notice of
violation and /or posting of the premises final.
C. Any civil fine which has been deposited shall be refunded if it is determined, after
an administrative hearing, that the owner or Responsible person who requested the
administrative hearing was not responsible for the violation(s) or there was no
violation(s) as charged in the citation, notice of violation or posting on the premises. If,
after the administrative hearing, it is determined that the owner or Responsible person
was responsible for the violation(s), any civil fine previously deposited shall be retained
by the City.
21
D. The City Manager shall designate the Hearing Officer for the administrative
hearing. The Hearing Officer shall not be an employee of the City. The employment,
performance evaluation, compensation and benefits of the Hearing Officer, if any, shall
not be directly or indirectly conditioned upon the result of the administrative hearing as
determined by the Hearing Officer.
E. A hearing before the Hearing Officer shall be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this chapter. The person requesting the
hearing shall be notified of the time and place set for the hearing at least ten (10) days
prior to the date of the hearing. The City and the owner or Responsible person may
mutually agree to waive or modify or change the date of the preceding.
F. The Hearing Officer shall only consider evidence that is relevant to whether the
violation(s) occurred and whether the owner or Responsible person is liable for the
violation(s).
G. The owner or Responsible person requesting the administrative hearing shall be
given the opportunity to testify and present witnesses and evidence concerning the
violation(s).
H. The failure of any owner or Responsible person to appear at the administrative
hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative
remedies, and render the citation, notice of violation, or posting of the premises final,
including any civil fine imposed thereby.
I. The citation, notice of violation, and /or posted notice on the premises, together
with any additional documents or evidence submitted by the City, shall constitute prima
facia evidence of the respective facts contained in those documents and evidence.
J. If the City submits any additional documents or evidence to the Hearing Officer
for consideration at the administrative hearing, then a copy of the same shall be served
by mail on the owner or Responsible person requesting the hearing at least five days
prior to the date of the administrative hearing. The failure of either party to receive
materials prior to the hearing shall not affect the validity of the proceedings, but may
entitle the party to a reasonable continuance of the hearing.
K. If the owner or Responsible person desires to submit any documents or evidence
to the Hearing Officer, then a copy of the same shall be served by mail on the City at
least five days prior to the date of the administrative hearing. The failure of either party
to receive materials prior to the hearing shall not affect the validity of the proceedings,
but may entitle the party to a reasonable continuance of the hearing.
L. Other than is provided in this section, no other discovery is permitted. The
administrative hearing shall not be conducted according to the formal rules of evidence.
Any relevant evidence shall be admitted if it is the type of evidence on which reasonable
22
persons are accustomed to rely on in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the
admission of such evidence over objection in civil actions in courts of competent
jurisdiction in this State. However, irrelevant or unduly repetitious evidence shall be
excluded.
M. The Hearing Officer may continue the hearing from time to time and /or request
additional information from the City, the owner or responsible person, or both prior to
issuing a written decision.
N. After considering all of the testimony and evidence submitted at the
administrative hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the administrative hearing. The written decision shall state the reasons for that
decision. The decision of the Hearing Officer shall be final.
O. The written decision of the Hearing Officer shall be served either by personal
delivery on the owner or responsible person or by deposit in the mail for delivery by the
United States Postal Service, in a sealed envelope, postage prepaid, addressed to such
owner or responsible person to be notified, at their last known address as the same
appears in the public records of the City.
P. Any owner or responsible person aggrieved by a written decision of a Hearing
Officer following an administrative hearing may obtain review of the decision by filing a
petition for review with the Orange County Superior Court, Harbor Justice Center in
accordance with the timelines and provisions as set forth in California Government
Code Section 53069.4.
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: Neither the adoption of this ordinance nor the repeal of any other ordinance
of this City shall in any manner affect the prosecution for violations of ordinances, which
violations were committed prior to the effective date hereof, nor be construed as a waiver
of any license or penalty or the penal provisions applicable to any violation thereof. The
provisions of this ordinance, insofar as they are substantially the same as ordinance
provisions previously adopted by the City relating to the same subject matter, shall be
construed as restatements and continuations, and not as new enactments.
Section 7: The Mayor shall sign and the City Clerk shall attest to the passage of this
Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within fifteen (15) days after its adoption, and it shall be effective thirty (30)
days after its adoption.
23
This Ordinance was introduced at a regular meeting of the City Council of the City
of Newport Beach held on the day of , 2012, and adopted on
the day of , 2012, by the following vote, to -wit:
AYES, COUNCILMEMBERS
NOES,COUNCILMEMBERS
ABSENT, COUNCILMEMBERS
MAYOR
AT TEST:
LEILANI I. BROWN, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
By:
AARON C. HARP, CITY ATTORNEY
24
City Council
Attachment C
Proposed Amendments in Redline Format
21
Chapter 1.05
ADMINISTRATIVEON -CODE ENFORCEMENT PROGRAMGITATIONS
Sections:
1.05.005 Legislative Findings and Statement of Purpose.
1.05.010 Definitions.
1.05.020 Authority and Administrative Citation Fines.
1.05.030 Service Procedures.
1.05.040
Contents of Administrative Citation Netice.
1.05.050
Administrative Costs Recovery
1.05.060
Appeal of Administrative Citation.
1.05.065
Administrative Civil Penalties.
1.05.070
Hearing Officer.
1.05.080
Hearing Procedure.
1.05.090
Hearing Officer's Decision.
1.05.100
Failure to Pay Fines, Penalties, Costs or Fees.
1.05.110 Right to Judicial Review of Hearing Officer's Decision on
Administrative Citation.
1.05.120 Administrative Remedies Not ExclusiveNetiees.
1.05.005 Legislative Findings and Statement of Purpose.
A. The City Council finds that the enforcement of the -The Newport Beach Municipal
Code ( "the Code ") throughout the City is an important public service and is vital to
the protection of the public's health, safety and quality of life.
A -6_ The City Council finds that there is a need for an alternative method of
enforcement for various violations of the Municipal Code. The City Council also finds
that an appropriate method for enforcement of various violations is an Administrative
Code Enforcement Gitatien Program that will reduce the burden on the judicial
system while providing full due process for those-oked alleged to be responsible for
a violation of the Code.
B-.C. B-. The procedures established in this chapter are in addition to criminal, civil or
other legal remedies that may be available to the City to enforce violations of the
AAupk4pal -Code or applicable State Codes.
GD_4r,. The City Council finds and determines that enforcement of the provisions of
the ^'^wpaFt Beae; Municipal Code and conditions on entitlements or permits are
municipal affairs as well as matters of purely local concern to the citizens of Newport
Beach.
D-.E. ID: The City Council finds that the adoption and implementation of this
Administrative Code EnforcementG{tatien Program is within the power and authority
of the City of Newport Beach as a charter city and will achieve the following goals:
To promote and protect the public health, safety and welfare of the citizens of
the City of Newport Beach;
2. To help ensure compliance with the MuRidpal —Code and State Codes,
ordinances and regulations in a timely and efficient manner;
3. To provide for an administrative process to appeal the imposition of
administrative citations, and- fines, penalties and costs that will fully comport
with due process and provide those alleged to be in violation of the Code eked
with the right to a fair hearing without the need for legal counsel;
4. To provide a method to hold parties responsible when they fail or refuse to
comply with the provisions of the Mupkipal -Code, ordinances, agreements or
terms and conditions on entitlements in the City of Newport Beach;
5. To reduce the burden on the judicial system and minimize the time and expense
of defending the c'*- atien alleged violation on the part of the persm cited
Responsible Person.
€-F_t= Use of this chapter shall be at the sole discretion of the City.
1.05.010 Definitions.
For purposes of this chapter, the following definitions shall apply
A. "Administrative Costs" means all costs incurred by or on behalf of the City from
the first discovery of a violation of this Code throuqh the appeal process and until
compliance is achieved, including but not limited to, staff time in investigating the
violation, an inspection of the property where the violation occurred, a
preparation of investigation reports; notification; preparation for and attendance
at any hearings; attorneys' fees; and fees paid to the Administrative Hearing
Officer. "Administrative Costs" shall not include the administrative citation fines;
the administrative civil penalties assessed pursuant to this chapter; include late
Payment charges that accrue; or collection costs incurred, as a result of unpaid
administrative citation fines.
B. "Enforcement efficerOfficer" means any officer or employee with the authority to
enforce the NewpaFt Beaeh Munidpal Code as provided in Chapter 1.12.
A:C. `Responsible pe%enPerson" means any natural person, parent or legal
guardian of any person under the age of eighteen (18) years, joint venture, joint
stock company, partnership, association, club, company, corporation, business
trust, or organization, or the manager, lessee, agent, officer or employee of any
of them, or any of the foregoing who own, possess, control or have a legal or
equitable interest in individual whe is the owner GF eGGUpant of real property,
owner er authorized agent of any business, Ger-pany ar
2
We WIN
Code.
1.05.020 Authority and Administrative Citation Fines.
A. Any responsible persen- Person violating any provision of the- this " 4 Beaeq
Municipal -Code may be issued an administrative citation by an Enforcement Officer as
provided in this ohapterChapter. A violation of this Code includes, but is not limited to,
all violations of the Newport Beach Municipal Code, the- Writ°„n+-pny Codes adopted by
the City Council (i.e.: Building Code, Fire Code, etc.), and the failure to comply with any
condition imposed by any entitlement, permit, agreement or environmental document
issued or approved pursuant to this Code or State law.
B. Each and every day a violation of the MURiooa -this Code exists constitutes a
separate and distinct offense.
C. An administrative siail -fine shall be assessed by means of an administrative citation
issued by the Enforcement Officer and shall be payable directly to the NewpeFt BeaGh
City T..,.,. Off c-
p C.,^^p# in the ease of _,#. ini #r^ #:_,^ ^:#^ #; „ w #Where no administrative fine
amount is specified, fi.r vielatiens of this Gede i„ ^ Safety C ha # zone, fines
^h ^n be assessed in the amounts ° eeif•^ � established by resolution of the City Council,
or established by any other provision of this Code, administrative fines shall be
assessed in the following amounts er where . amount us speGified:
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 ordinance or permit within one year from the date of the firsta rior violation;
3. A fine not exceeding five hundred dollars ($500.00) for a thirdeash additional
violation, or any subsequent violation, of the same ordinance or permit within one year
from the date of the first- rp for violations.
E. In the case of administrative citations issued for violations of this Code in a Safety
Enhancement Zone established pursuant to Section 1.04.060 of this Code,
administrative fines shall be assessed in the following amounts:
A fine of three hundred dollars ($300.00) for a first violation;
2. A fine of six hundred dollars ($600.00) for a second violation of the same
ordinance or permit within one year from the date of the #fir g rior violation;
3
3. A fine not exceeding one thousand dollars ($1,000.00) for eaGh additionala
third violation, or any subsequent violation, of the same ordinance or permit within one
year from the date of the #ifst rp for violations.
F. In the case of administrative citations issued for violations of Chapter 5.28 (Live
Entertainment Establish mentsl; Chapter 5.32 [Cafe Dancesl; Chapter 5.95 [Short Term
Lodging Permitl; Section 10.50.020(H) Violation of terms or conditions of a Use Permit
issued by the City]; Section 14.36.030 resulting in bay or beach closure rlllicit
Connections and Prohibited Dischargesl' California Fire Code section 107.6 (as
adopted by Code Section 9.04.010); or California Fire Code section 107.6.1 (as adopted
by Code Section 9.04.020), administrative fines shall be assessed in the following
amounts when authorized by the City Manager or his or her designee:
1. A fine not exceeding one thousand dollars ($1,000.00) for a first violation;
2. A fine not exceeding two thousand dollars ($2,000.00) for a second violation
of the same ordinance or permit within one year from the date of the prior violation;
3. A fine not exceeding three thousand dollars ($3,000.00) for a third violation or
any subsequent violation, within one year from the date of the prior violations
H. The fines imposed under this Section shall be in addition to any other fines
penalties, and /or fees imposed for violations of this Code or local. State and /or Federal
law.
1.05.030 Service Procedures.
Wl
�.
all
2. Deposit in the mail for delivery by the United States Postal Service in a
sealed envelope, postage prepaid, addressed to such person to be notified
at their last known address as the same appears in public records or public
records related to title or ownership of the property: or
3. If service cannot be accomplished by subparagraphs (1) or (2) above by
posting the notice or administrative citation conspicuously on or in front of
the subject property.
B. Personal service shall be deemed to have been completed when served on the
Person. Service by mail shall be deemed to have been completed at the time of deposit
by the City in the mail for delivery by the United States Postal Service Service by
posting shall be deemed to have been completed at the time of posting
C. Failure to receive any notice, administrative citation or any other document or
correspondence issued under this Code does not affect the validity of proceedings
conducted hereunder.
administrative Gatathon.
M,
min
WINCO
• ••
1.05.040
A. Each administrative citation shall contain the following information:
1 . Date, approximate time, and address or definite description of the location where
the • • observed;
2. The Code sections or permit conditions violated and a description of the
• •
correct 3. If applicable to the violation, a n order to the RfesPonsible Pperson to correct the
• •
4. The amount of the fine for the violation(s);
5. An explanation of how the fine shall be paid and the time period by which it shall be
paid;
6. Identification of rights of appeal, including the time within which the citation may be
contested and the place to obtain a request for hearing form to contest the
administrative citation: and
7. The name and signature of the Enforcement Officer and if possible the signature of
1.05.050 Administrative Costs Recovery
A. This section establishes procedures for the recovery of Administrative Costs.
The intent of this section is to recover the City's Administrative Costs reasonably related
to enforcement actions. Any Responsible Person violating any provision of this Code
may be subject to the recovery of the City's Administrative Costs pursuant to the
procedures set forth in this Chapter
B. Record of Administrative Costs. Should the City seek to recover its
Administrative Costs, each Enforcement Officer shall .produce records of all
Administrative Costs associated with the investigation and /or processing of violations
and enforcement of this Code, and shall recover the costs from the Responsible Person
in compliance with this section. Staff time shall be calculated at an hourly rate
established and revised from time to time by resolution by the Council.
C. Notice of Intent to Charge Administrative Costs Upon investigation and a
determination that a violation of any provisions of this Code is found to exist the
Enforcement Officer shall notify the Responsible Person of the existence of the
violation, the City's intent to charge the Responsible Person for all Administrative Costs
associated with enforcement.
D. Summary of Administrative Costs. At the conclusion of an enforcement action.
the Enforcement Officer shall send a Summary of Administrative Costs to the
Responsible Person. The Summary of Administrative Costs shall include a notice
advising the Responsible Person of their right to appeal and that if no written appeal is
timely filed, the Responsible Person will be liable for the Administrative Costs The
failure of any Responsible Person to timely appeal with the City shall be deemed a
failure to exhaust the Responsible Person's administrative remedies with regard the
Summary of Administrative Costs.
E. In the event that no appeal of the Summary of Administrative Costs is timely filed
or the Hearing Officer affirms the validity of the costs as part of the enforcement action
the Responsible Person shall be liable to the City in the amount stated in the Summary
of Administrative Costs or any lesser amount determined by the Hearing Officer.
Is]
F. Request for Hearing on Administrative Costs. A Responsible Person who
receives a Summary of Administrative Costs shall have the right to an administrative
hearing before a Hearing Officer on their objections to the Summary of Administrative
Costs.
1. Request for Hearing. A request for hearing shall be filed with the City's
Finance Department within thirty (30) days of the service of the Summary of
Administrative Costs on a form provided by the Finance Department.
2. Hearing. Within sixty (60) days of the filing a request for hearing and on
ten days' prior written notice to the Responsible Person. a Hearing Officer shall hold a
hearing on the objections to the Summary of Administrative Costs.
3. Factors to be considered by a Hearing Officer. The Hearing Officer shall
consider whether the costs identified in the Summary of Administrative Costs are
reasonable under the circumstances of the enforcement action including the following:
a. Whether the Responsible Person created the violation:
b. Whether there is a present ability to correct the violation•
C. Whether the Responsible Person acted promptly to correct the violation:
d. The degree of cooperation provided by the Responsible Person; and
4. The failure of any Responsible Person to appear at the administrative hearing
before the Hearing Officer on the Summary of Administrative Costs shall be deemed a
failure to exhaust the Responsible Person's administrative remedies with regard to the
Summary of Administrative Costs.
G. Any Responsible Person aggrieved by the Hearing Officer's decision under this
Section may obtain judicial review of that decision by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in California Code of Civil Procedure Section 1094.6.
1 . Pay the fine to the Git within f' #een (1 5) days f the f date of the
admin;strateve oatatmon. All fines a6sessed shall be payable to the Newpert Bea& Go"
2. Remedy -- the icnac�Ri �(j), if the - violanvR�JT-o of vaGh a nature ZhRr- rfvCtll -pC
remedied. if the vialafiari(s) is GGrreGted before the date pFevided eR the Gitation no fin
shall be imposed. if the respeRsible person fails to eE)rreGt the violafieR(s), subsequent
7
1.05.060 Appeal of Administrative Citation.
A. Any recipient of an administrative citation may contest that there was a violation
of the NewpoFt BeaGh Munieipal Code or that he or she is the Reesponsible Pperson by
completing a request for hearing form and returning it to the City's Finance Department
within thirty n- (304 -5) days from the ^crrcct;o^ date of service of the administration
citation, together with an advanced deposit of the fine or a notice that a request for an
advance deposit hardship waiver pursuant to Subsection B has been filed . 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 Any Responsible Person who requests a hearing to contest that there was a
violation of the Code or that he or she is the Responsible Person for the violation and
who is financially unable to make the advance deposit of the fine as required may file a
request for an advance deposit hardship waiver within fifteen (15) calendar days from
the date of service of the citation. The failure of any person to timely file a written
request for an advance deposit hardship waiver with the City's Finance Director, or his
or her designee, shall be deemed a failure to exhaust the person's administrative
remedies with regard to the advance deposit hardship waiver.
1. The request for an advance deposit hardship waiver shall be in writinq and
describe with particularity the Responsible Person's actual financial inabilit
demonstrating why all or a part of the fine cannot be paid Further, the
written request for an advance deposit hardship waiver must be
accompanied by a sworn affidavit together with any supporting documents
or materials, demonstrating to the satisfaction of the City's Finance Director,
or his or her designee the Responsible Person's actual financial inability
that necessitates an advance deposit hardship waiver. The City's Finance
Director, or his or her designee, is entitled to request additional
documentation and information from the Responsible Person in order to fully
assess the waiver request The failure of any Responsible Person to timelv
submit all requested additional documentation and information to the City's
Finance Director, or his or her designee, as requested shall be deemed a
failure to exhaust the Responsible Person's administrative remedies with
regard to the advance deposit hardship waiver.
2 Once a complete written request for an advance deposit hardship waiver is
filed with the City's Finance Director, or his or her designee the requirement
of depositing the full amount of the fine shall be stayed until the City's
Finance Director, or his or her designee determines whether to grant grant
in or deny the request. The written determination of the City's Finance
Director, or his or her designee, shall be served on the person requesting
the advance deposit hardship waiver as provided for in this Code. The
written determination of the City's Finance Director, or his or her designee
shall be final.
3. If the City's Finance Director, or his or her designee grants the advance
deposit hardship waiver, the Responsible Person shall not be required to
deposit the fine in advance of the hearing.
4. If the City's Finance Director, or his or her designee, grants in part the
advance deposit hardship waiver, the Responsible Person shall remit that
amount of the fine as a deposit that the City's Finance Director, or his or her
designee, determines the Responsible Person has the ability to pay within
ten (10) days of that decision or thirty days from service of the
administrative citation, whichever is later.
5. If the City's Finance Director, or his or her designee denies the request for
an advance deposit hardship waiver, the Responsible Person shall remit the
full amount of the fine as a deposit to the City within ten (10) days of that
decision or thirty days from service of the administrative citation, whichever
is later.
6 The granting, or granting in part of any request for an advance deposit
hardship waiver shall not excuse or discharge any continuation or repeated
occurrence of any violation of this Code nor shall it bar further enforcement
action by the City.
4-7. The granting, or granting in part, of any request for an advance deposit
hardship waiver shall not excuse the Responsible Person from paving the
full amount of the fine if the administrative citation is upheld by the hearing
officer following an administrative hearing.
1.05.065 Administrative Penalties
A. In addition to any applicable fine provided for by this Code any Responsible
Person violating any provision of this Code may also be subject to the assessment of
administrative penalties pursuant to the procedures set forth in this Chapter.
B. Whenever an Enforcement Officer determines that a violation of one or more
provisions of this Code has occurred or continues to exist a written Administrative
Penalties Notice and Order may be issued to each Responsible Person.
C. Administrative penalties, if awarded assessed, or imposed: shall be assessed at
a daily rate, the amount of which shall be determined by the Hearing Officer and set
forth in an Administrative Penalties Enforcement Order following the presentation of
evidence at an administrative hearing according to the procedures established in this
Chapter. Administrative penalties may be assessed separate and in addition to fines
and Administrative Costs authorized by this Code.
D. The maximum legal rate for administrative penalties shall be one thousand
dollars ($1,000.00) per day, per violation. The maximum legal amount of administrative
penalties shall be two hundred thousand dollars ($200,000.00), plus interest on unpaid
penalties, .per parcel of real propertV, including anv structures located thereon, for all
violations of this Code, including continuing violations, existing at the time the
Administrative Penalties Notice and Order is issued by the City. Violations first
occurring after the issuance of an Administrative Penalties Notice and Order shall be
subject to enforcement through the issuance of a separate Administrative Penalties
Notice and Order.
E. The Administrative Penalties Notice and Order shall provide notice of the
following: the alleged violation(s); a brief description of the remedial or corrective action
required; a compliance deadline; the date and time set for a hearing before a Hearing
Officer should the corrective action not be taken, and notice that each violation not
corrected by the compliance deadline will be subject to an order requiring payment of
administrative penalties in an amount determined by a Hearing Officer; and an order to
correct the violation(s).
F. More than one Administrative Penalties Notice and Order may be issued against
the same Responsible Person if each such subsequent notice and order concerns
different dates, different violations, or different locations.
G. In determining the date when administrative penalties start to accrue. a Hearing
Officer may consider the date when the City first discovered the violation as evidenced
by the issuance of an administrative citation, Administrative Penalties Notice and Order,
or any other written notice or correspondence to any Responsible Person.
H. In determining the amount of administrative penalties to be assessed at a daily
rate for each violation, the Hearing Officer may consider some or all of the following
factors:
1. The duration of the violation;
2. The frequency of recurrence of the violation;
3. The seriousness of the violation;
4. The history of the violation;
5. The Responsible Person's conduct after issuance of any notice;
6. The good faith effort to comply;
10
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
I. The failure of any Responsible Person to appear at the administrative hearing
regard to the Administrative Penalties Notice and Order.
J. When the Responsible Person fails to comply with the Administrative Penalties
Notice and Order by correcting the violation(s) and bringing the property into
compliance with this Code, the Administrative Penalties Notice and Order shall be set
for an administrative hearing. In the interests of justice, an Enforcement Officer may
reschedule the date and time for the administrative hearing on an Administrative
Penalties Notice and Order upon written notice to the Responsible Person.
K. Within forty -five (45) days of the completion of the administrative hearing on an
Administrative Penalties Notice and Order. the Hearing Officer shall issue an
Administrative Penalties Enforcement Order. The Administrative Penalties Enforcement
Order shall become final and take effect on the date it is signed by the Hearing Officer.
The Administrative Penalties Enforcement Order shall contain the following information:
1. Date(s) of the administrative hearing;
2. Identification by name of each Enforcement Officer, Responsible Person
and any other person or witness attending the hearing;
3. A determination regarding the sufficiency of notice for due process
purposes;
4. A summary of the evidence presented by each witness, including exhibits;
5. Findings of fact, analysis of applicable sections of this Code, and
conclusions of law as to the issues relevant to the administrative hearing;
6. A determination and assessment of administrative civil penalties and
Administrative costs to be awarded to the City, if any;
7. Notice of appeal rights and judicial review pursuant to California Code of
Civil Procedure Section 1094.6;
8. Signature of the Hearing Officer and the signature date.
11
L. The Administrative Penalties Enforcement Order shall be served on all
Responsible Persons by first -class mail, postage prepaid and include a copy of an
affidavit or certificate of mailing.
M. Upon the failure of the Responsible Person to comply with terms and deadlines
set forth in the Administrative Penalties Enforcement Order. the Enforcement Officer
may use all appropriate legal means to recover the administrative penalties assessed
and obtain compliance with the Administrative Penalties Enforcement Order.
N. After the Hearing Officer issues an Administrative Penalties Enforcement Order,
the Enforcement Officer shall periodically and regularly inspect the subiect property to
determine whether the property has been brought into compliance with the
Administrative Penalties Enforcement Order and whether daily penalties should
continue to accrue.
O. Any Responsible Person aggrieved by an Administrative Penalties Enforcement
Order may obtain judicial review of that order by filing a petition for review with the
Orange County Superior Court in accordance with the timelines and provisions set forth
in California Code of Civil Procedure Section 1094.6.
P. It is unlawful for a Responsible Person who has been served with a copy of the
final Administrative Penalties Enforcement Order issued pursuant to this Section to fail
to comply with that order.
1. The failure to comply with a final Administrative Penalties Enforcement
Order may be prosecuted as an infraction or misdemeanor at the discretion of
the City Attorney.
2. The failure to comply with a final Administrative Penalties Enforcement
Order may result in alternative remedies, such as civil injunction, abatement,
receivership, or any other legal remedy.
1.05.070 Hearing Officer.
A. The Newport Beach City Manager shall designate the Hearing Officer for them
administrative cjtatier hearing called for in this Code. The Hearing Officer shall not be a
Newport Beach City employee. The employment, performance evaluation,
compensation and 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.
B. Disqualification. Any person designated to serve as a Hearing Officer is subject
to disqualification for actual bias, preiudice, interest, or for other reason for which a
judge may be disqualified after a showing of good cause under the laws of the State of
California.
12
C. Powers. The Hearing Officer shall have the power to:
1. Conduct administrative hearinqs as provided under the authoritv of this
Code:
2. Continue a hearinq based on good cause shown by one of the parties to
the hearing or upon the Hearing Officer's own motion:
3. Request additional information from the Enforcement Officer or the
Responsible Person provided notice of such request is given to all parties:
4. Exercise continuing iurisdiction over the subject matter of an
administrative hearing for the purposes of rq anting a continuance, ensuring
compliance with any Order, modifying any Order, or where extraordinary
circumstances exist, granting a new administrative hearing:
5. Require a Responsible Person to post a bond to ensure compliance with
an Administrative Penalties Enforcement Order:
6. Rule upon the merits of an administrative hearing upon consideration of
the evidence submitted and issue a written decision resolving the case:
7. Uphold, award, impose assess, or deny a fine or penalty authorized under
this Code;
8. Assess Administrative Costs according to proof:
9. Set, increase, or decrease, according to proof, the amount of fine or
Penalty or the daily rate of such fine or penalty sought by the City to be awarded
imposed, or assessed in those cases where the fine or penalty is not fixed but is
subiect to a range as otherwise established by this Code:
10. In those cases where the fine or penalty is not fixed but is subiect to a
range as otherwise established by this code determine the date certain upon
which the assessment of administrative penalties shall begin; and where the
corrections are subsequently completed to the City's satisfaction, the date certain
upon which the assessment of administrative penalties shall end. If the violations
have not been so corrected, the daily accrual of the penalties assessed shall
continue until the violations are corrected or the legal maximum limit is reached•
and
11. Where appropriate in administrative actions arising from the issuance of
an Administrative Penalties Notice and Order and as a condition of compliance in
correcting the violations at issue: require each Responsible Person to cease
violating this Code and to make all necessary corrections.
13
1.05.080 Hearing Procedure.
A. No hearing to contest an administrative citation or Summary of Administrative
Costs and Notice before a Hearing Officer shall be held unless and until a request for
hearing form has been completed and submitted, and, if applicable, the fine has been
deposited in advance or an advance deposit hardship waiver has been issued.
B. A hearing before the Hearing Officer shaUmay be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this eChapter. The Responsible pPerson
requesting the hearing shall be notified of the time and place set for the hearing at least
ten days prior to the date of the hearing. The City and Responsible Person may
mutually agree to waive, modify or change the date of the preceding
C. For a hearing contesting an administrative citation Tthe En oreeMeRt Hearing
Officer shall only consider evidence that is relevant to whether the violation(s) occurred
and whether the rResponsible pPerson has caused or maintained the violation(s) of the
Maaisipal -Code on the date(s) specified 'R the administrative Gitat
D. The rResponsible pPerson ^.,ntect;ng the ad;^,,,,strativ citation-shall be given the
opportunity to testify and present relevant witnesses and evidence during the
hearingeeneeMing the administrative citwt;on.
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.
F. The administrative citation, any notice issued under the provisions of this Code,
and any additional documents submitted by the Enforcement Officer shall constitute
prima facia evidence of the respective facts contained in those documents.
G if the EnfnFnnrnent Offiee Either party may submits -are additional written reports
documents or evidence -
'b° ud^ i ^:ctr cti c .wt; ,, to the Hearing Officer for
consideration at f�hearing, then -with a copy of this n,,.+ ass„ shall be served by mail
on the other part y requesting the heariRg at least five days prior to the date of the
hearing. The failure of either party to receive materials prior to the hearing shall not
affect the validity of the proceedings but may entitle the party to a reasonable
continuance of the hearin
H. At least ten days prior to the hearing, the recipient of an administrative citation shall
be provided with copies of the citations, reports and other documents or evidence
submitted or relied upon by the Enforcement Officer. No other discovery is permitted.
Formal rules of evidence shall not apply. Administrative hearings are intended to be
informal in nature. Any relevant evidence shall be admitted if it is the type of evidence
on which reasonable persons are accustomed to rely on in the conduct of serious
affairs, regardless of the existence of any common law or statutory rules which might
III
make improper the admission of such evidence over objection in civil actions in courts
of competent jurisdiction in this State. Irrelevant and unduly repetitious evidence shall
be excluded.
1.05.090 Bearing 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 hearing to
upheld ^F deny the administrative Gitati^^ and shall list in the decision the reasons for
that decision. For a hearing on an administrative citation, the Hearing Officer may
uphold or deny the administrative citation. The decision of the Hearing Officer shall be
final.
B. If the Hearing Officer determines that the administrative citation should be upheld,
then the fine amount on deposit with the City shall be retained by the City.
C. If the Hearing Officer determines that the administrative citation should be
eaneeleddenied and the fine was deposited with the City, then the City shall promptly
refund the amount of the deposited fine.
D. 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 1.08.080 of the
Newport Beaeh this Code.
1.05.100 Failure to Pay Fines, Penalties, Costs or Fees.
A. The amount of any fine, penalty, cost or fee imposed pursuant to this Chapter
shall be deemed a debt owed to the City.
C. It is intended that persons causing, maintaining, and /or permitting the violation
bear the financial burden of the City's enforcement efforts. The City may pursue any
and all legal and equitable remedies to collect unpaid fines, penalties, costs or fees
imposed pursuant to this chapter. Pursuit of one remedy does not preclude the pursuit
of any other remedy. Remedies available to the City to collect unpaid fines penalties
costs or fees include, but are not limited to, the following:
1. Referring the delinquent account to collection:
15
2. Authorizing a lien to be recorded on the property for any unpaid fines
penalties, costs, or fees imposed;
3. Authorizinq a special assessment upon the property for any civil fines
penalties, costs, or fees imposed against the owner: and /or
4. Filing a civil action in a court of competent jurisdiction.
D. Any :person who fails to pay any fine penalty, cost or fee shall be liable in any
proceeding brought by the City for the costs incurred in securing payment of the unpaid
amount, including attorneys' fees. Such costs shall be in addition to any penalties
interest, and /or late fees imposed upon the unpaid fine penalty, cost or fee
withip the time ss ^•fled the Gitation ^muy r �n
It the att beiRg f d s h
NewpaFt BeaGh Gity TreasyreF tO file a elaim with the Small Claims Geurt. AlteFnatively7
the Gity may pursue any E)theF legal FeFnedy to G011-16t the E;;v;l fines. The City may-alse
_
Fe GE)yer its GGIl.sfiGns snsts a ..r.d' 4 f
1.05.110 Right to Judicial Review of Hearing Officer's Decision on Administrative
Citation.
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 Orange County Superior "MtH*epal -Court
District in accordance with the timelines and provisions as set forth in California
Government Code Section 53069.4.
IM
The procedures established in this Chapter for the use of administrative citations and
the administrative civil penalties process and the procedures established in other
chapters of this code for administrative abatement and summary abatement as means
for addressing violations of this code shall be in addition to criminal civil or other legal
or equitable remedies established by law that may be pursued to address violations of
this code and the use of this chapter shall be at the sole discretion of the City.
16
AMENDMENTS TO SECTION 1.04.010
1.04.010 Violations, Penalties and Enforcement
The provisions of this section represent the means and methods by which the City of
Newport Beach intends to secure compliance with the provisions of this Code. The City
may use any or all of the enforcement options in securing compliance with the
provisions of this Code and multiple enforcement options may be used to achieve
compliance with respect to persons who commit continuing violations. A separate
offense shall be deemed to have been committed whenever: (a) a person repeats the
act that constitutes the violation; or (b) any condition or circumstance that constitutes a
violation is allowed to exist for more than twenty -four hours.
A. 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. Written
citations for infractions may be issued by police officers or nonsafety employees
designated in Section 1.12.020. Except as provided in subsection B of this section, any
person convicted of an infraction under the provisions of this Code shall be punishable
either by fines as is specified in the currently adopted Uniform Infraction Bail Schedule
used by the Orange County Municipal Courts, or where no fine is specified therein by:
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 ordinance within one year;
3. A fine not exceeding five hundred dollars ($500.00) for each additional violation
of the same ordinance within one year.
B. Safety Enhancement Zone. For any violation of the Newport Beach Municipal
Code that is committed within an area that has been designated by the City Council as
a Safety Enhancement Zone pursuant to Section 1.04.060, and during the time that
designation is effective, the fine shall be treble the amount otherwise prescribed or
where the violation is considered an infraction and no fine is specified by:
1. A fine not exceeding three hundred dollars ($300.00) for a first violation;
2. A fine not exceeding six hundred dollars ($600.00) for a second violation of the
same ordinance within one year;
3. A fine not exceeding one thousand dollars ($1,000.00) for each additional
violation of the same ordinance within one year.
C. 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 nonsafety
17
employees designated by Newport Beach Municipal Code Section 1.12.020. Any
person convicted of a misdemeanor under the provisions of this Code shall be punished
by a fine not exceeding one thousand dollars ($1,000.00) or imprisonment for a term not
exceeding six months, or by both such fine and imprisonment.
D. Civil Action. The City Attorney, by and at the request of the City Council, 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, in addition to all other remedies, costs fines and fees the court may
impose civil penalties payable to the City in an amount not to exceed one thousand
dollars ($1,000.00) per violation for each day the violation is found to exists against any
person who commits, continues, operates, allows or maintains any violation of any
provision of this Code. In determining the amount of the civil penalties to be assessed
on a daily rate for each violation, the court may consider some or all of the following
factors:
1. The duration of the violation:
2. The frequency of recurrence of the violation:
3. The seriousness of the violation:
4. The history of the violation;
5. The person's conduct after issuance of any notice;
6. The good faith effort to comply;
7. The economic impact of the penalty;
8. The impact of the violation upon the community; and
9. Any other factors that justice may require.
E. Administrative Code Enforcement ProgramGitatien. 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 take any action authorized;.,sup w„ RdMiRil;tratiVe edtatiGn
under the provisions of Chapter 1.05.
IR
AMENDMENTS TO SECTION 10.66.060
10.66.060 Violation — Penalty —Civil Fine.
A. The following civil fines shall be assessed for violations of Section 10.66.020(A):
1. A civil fine not exceeding five hundred dollars ($500.00) for a first violation;
2. A civil fine not exceeding one thousand dollars ($1,000.00) for a second violation
within ninety (90) days of the first violation;
3. A civil fine not exceeding two thousand dollars ($2,000.00) for a third violation
within ninety (90) days of the first violation; and
4. A civil fine not exceeding three thousand dollars ($3,000.00) for a fourth and any
subsequent violations within ninety (90) days of the first violation.
B. The following civil fines shall be assessed for violations of Section 10.66.020(A)
that occur within the West Newport Safety Enhancement Zone, as established by
Section 1.04.060:
1. A civil fine not exceeding one thousand five hundred dollars ($1,500.00)
for a first violation;
2. A civil fine not exceeding three thousand dollars ($3,000.00) for a second
and any subsequent violations within ninety (90) days of the first violation.
C. Any responsible person who is present at a residential unit that has a notice
posted pursuant to Section 10.66.030(A) shall be presumed to have notice of the prior
violation(s) by virtue of the posted notice(s) and shall be subject to a civil fine according
to the number of violation(s) at the residential unit within the preceding ninety (90) day
period pursuant to the civil fine schedules in subsections (A) or (B) of this section.
D. A civil fine not exceeding two thousand dollars ($2,000.00) shall be assessed for
a violation of Section 10.66.030(B). Additionally, any person violating Section
10.66.030(B) may be prosecuted for a misdemeanor, and upon conviction, shall be
punished by a fine not exceeding one thousand dollars ($1,000.00) or by imprisonment
for a term not exceeding six months, or by both such fine and imprisonment.
E. A civil fine not exceeding one thousand dollars ($1,000.00) shall be assessed for
a violation of Section 10.66.030(C).
F. All civil fines imposed under this chapter shall be due and payable to the City's
Administrative Seryiees Finance Department within the earlier of thirty (30) days from
the issuance of a citation or service of the notice of violation.
19
G. Any owner or responsible person who intends to request an administrative
hearing pursuant to Section 10.66.070 may request an advance deposit hardship waiver
pursuant to Section 1.05.060(B). An owner or Responsible person who is unable to pay
all or a part of the civil fine due to the person's actual financial inability- a„- extFeme
f nanG a; hardship-may file a written request for a civil fine waiver or-�� with
the City's administrative c^ vieesrFinance Director, or his or her designee, within fifteen
(15) calendar days from the date of service of the citation or notice, whichever is earlier.
The failure of any owner or responsible person to timely file a written request for a civil
fine waiver er payment plan with the City's administrative c^^ ' Finance Director, or
his or her designee, shall be deemed a failure to exhaust the owner's or responsible
person's administrative remedies with regard to the same.
1. The written request for a civil fine waiver OF payment plan-shall be in
writing; and describe with particularity the owner's or Responsible person's actual
financial inability demonstrating e)4Fe,me financial hardship as towhy all or a part
of the fine should be waive - GaRnct be ru ^',M OF ,,,diGat„ what the
person believes we"d ennsfifi-te
payment nc t — -Nil sine r +•m^. Further, the written request for a civil fine eve.
waiver er payment plan must be accompanied by a sworn affidavit and
demonstrate to the satisfaction of the City's ^dMiRistrat ^v^ SeFViGes Finance
Director, or his or her designee, the owner's or (Responsible person's actual
financial inabilityextr^^,^ f,^^^ ^' "^ ' "' that necessitates a waiver of all or a
part of the civil fine amount OF need for a reasenable paymeRt plan. The City's
.Administrative c^ ^°^^^Finance Director, or his or her designee, is entitled to
request additional documentation and information from the owner or
(Responsible person in order to fully assess the owner's or Rfesponsible
person's actual financial inabilitye)&e^•^ #^^^^ ^' "� The failure of any
owner or (Responsible person to timely submit all requested additional
documentation and information to the City's drni ^'stFati e e ^ ^4 ^^ ^ Finance
Director, or his or her designee, as requested shall be deemed a failure to
exhaust the owner's or responsible person's administrative remedies with regard
to the same.
2. Once a complete written request for a civil fine waiver or payment lan 'IS
filed with the City's Administrative SeinviGes Finance Director, or his or her
designee, the requirement to pay the civil fine shall be stayed until the City's
Administrative SeMees Finance Director, or his or her designee, determines
whether to grant or deny the request.
3. If the City's AdmiRite— oerVieeslFinance Director, or his or her
designee, grants the written request for a civil fine waiver, the owner or
nResponsible person shall not be required to pay the civil fine. If the City's
Administrative S^ ^^^^ °tFinance Director, or his or her designee, determines that
the owner or responsible person has the financial ability to pay all or a part of the
civil fine on a reasonable payment plan, the City's dminist;�e
Sere ;Finance Director, or his or her designee shall so notify the owner or
20
rResponsible person and the owner or responsible person shall execute any
agreements required by the City's Administrative SepAees/Finance Director, or
his or her designee to establish the payment plan. A^•• payment plan Pstahl h d
for the payment of a GiVil fiRe URder this Ghapter shall not e)EGeed thFee hundred
and sixty five (365) days frarn the date of the City AdmiRist, - - - - - -
4. The granting of any request for a civil fine waiver or payment plan shall not
excuse or discharge any continuation or repeated occurrence of any violation of
this chapter, nor shall it bar further enforcement action by the City.
5. If the City's Administrative c^ ^^^^^/Finance Director, or his or her
designee, denies the written request for a civil fine waiver the
civil fine must be paid within tenfifteen (150) calendar days from the date of
service of the
City 1k#M;n:°t�e SelViGeslFinance Director's, or his or her designee.
determination.
6. The City AdministF ePAGes/Finance Director's, or his or her
designee, determination shall be (a) made within fifteen (15) calendar days of
the date of receipt of the complete request or any additional information as
requested by the City Administrative Se Finance Director, or his or her
designee,; (b) be in writing; and (c) served either by personal delivery on the
owner or responsible person or by deposit in the mail for delivery by the United
States Postal Service, in a sealed envelope, postage prepaid, addressed to such
owner or responsible person. The decision of the City's Administrative
Se;V*Ges Finance Director, or his or her designee, shall be final.
H. The civil fines and criminal penalties imposed in this chapter shall be in addition
to any other fines and /or penalties imposed for violations of local, State, and /or Federal
law during a loud or unruly gathering.
I. Any owner who does not reside within the residential unit and has (1) included
covenants within the written lease or rental agreement for the premises on which a loud
or unruly gathering occurs that contain specific language prohibiting the activities
described in this chapter; and (2) demonstrated due diligence in abating an
unmanageable tenant(s) or responsible person(s) for a loud or unruly gathering shall not
be liable under this chapter. Prior to July 1, 2012, an owner who does not reside within
the residential unit and has a written lease or rental agreement for the residential unit on
which a loud or unruly gathering has occurred shall only need to demonstrate due
diligence in abating an unmanageable tenant(s) or responsible person(s) for a loud or
unruly gathering to not be liable under this chapter.
J. Any owner who does not reside within the residential unit, has a written lease or
rental agreement for the residential unit and had the same residential unit posted with a
notice pursuant to Section 10.66.030(A) may file a written petition with the Chief of
21
Police, or his or her designee, requesting permission to remove posted notice prior to
the expiration of the ninety (90) day period. The Chief of Police, or his or her designee,
may grant the owner's written petition upon a satisfactory showing by the owner that the
responsible person(s) for the loud or unruly gathering are no longer in possession of or
allowed to occupy the residential unit.
K. Failure to receive any notice specified in this chapter does not affect the validity
of proceedings conducted hereunder.
22
AMENDMENTS TO SECTION 10.66.070
10.66.070 Administrative Hearing, Appeal.
A. Any owner or responsible person who, pursuant to this chapter, is (1) subject to a
civil fine; or (2) has had their residential unit posted with a notice concerning a loud or
unruly gathering, shall have the right to file a request for an administrative hearing to
appeal the imposition of the civil fine and /or the posting of the premises. Any such
request shall be submitted to the City's Finance Department in writing on the form
required by the City within thirty (30) days from the date of service of the citation, notice
of violation or posting of the premises, whichever is earlier. The written request for an
administrative hearing shall be submitted to the City with an advance deposit of the civil
fine unless a request for civil fine waiver or an advance deposit hardship waiver has
been filed pursuant to Sections 10.66.060(G) and 1.05.060(B). No administrative
hearing before a Hearing Officer shall be held unless and until a request for hearing
form has been completed and submitted, and, the fine has been deposited in advance
or an advance deposit hardship waiver has been issued, unless the owner e
respeRsible pePSGR has been granted a GiVil fiRe waiver --F payrnent plan by the Gityls
B. The failure of any owner or rResponsible person to timely file a written request
for a hearing, as required in this section, shall be deemed a failure to exhaust the
owner's or rResponsible person's administrative remedies and render the citation,
notice of violation and /or posting of the premises final.
C. Any civil fine which has been deposited shall be refunded if it is determined, after
an administrative hearing, that the owner or rResponsible person who requested the
administrative hearing was not responsible for the violation(s) or there was no
violation(s) as charged in the citation, notice of violation or posting on the premises. If,
after the administrative hearing, it is determined that the owner or rResponsible person
was responsible for the violation(s), any civil fine previously deposited shall be retained
by the City.
D. The City Manager shall designate the Hearing Officer for the administrative
hearing. The Hearing Officer shall not be an employee of the City. The employment,
performance evaluation, compensation and benefits of the Hearing Officer, if any, shall
not be directly or indirectly conditioned upon the result of the administrative hearing as
determined by the Hearing Officer.
E. A hearing before the Hearing Officer shall be set for a date that is not less than
fifteen (15) and not more than sixty (60) days from the date that the request for hearing
is filed in accordance with the provisions of this chapter. The person requesting the
hearing shall be notified of the time and place set for the hearing at least ten (10) days
prior to the date of the hearing. The City and the owner or rResponsible person may
mutually agree to waive or modify or change the date of the precedinngthese -A[me
23
F. The Hearing Officer shall only consider evidence that is relevant to whether the
violation(s) occurred and whether the owner or -Responsible person is liable for the
violation(s).
G. The owner or (Responsible person requesting the administrative hearing shall be
given the opportunity to testify and present witnesses and evidence concerning the
violation(s).
H. The failure of any owner or - Responsible person to appear at the administrative
hearing shall constitute a forfeiture of the fine, a failure to exhaust their administrative
remedies, and render the citation, notice of violation, or posting of the premises final,
including any civil fine imposed thereby.
I. The citation, notice of violation, and /or posted notice on the premises, together
with any additional documents or evidence submitted by the City, shall constitute prima
facia evidence of the respective facts contained in those documents and evidence.
J. If the City submits any additional documents or evidence to the Hearing Officer
for consideration at the administrative hearing, then a copy of the same shall be served
by mail on the owner or - Responsible person requesting the hearing at least five days
prior to the date of the administrative hearing. The failure of either party to receive
materials prior to the hearing shall not affect the validity of the proceedings but may
entitle the party to a reasonable continuance of the hearingThe f'!! r� cf u f
FeGeive SUGh documents PFier to the administrative hearing shall only eRtitle the ewne
K. If the owner or - Responsible person desires to submit any documents or
evidence to the Hearing Officer, then a copy of the same shall be served by mail on the
City at least five days prior to the date of the administrative hearing. The failure of either
party to receive materials prior to the hearing shall not affect the validity of the
proceedings, but may entitle the party to a reasonable continuance of the hearingThe
fa"ure of the e ible person to sornply with this requirement shave*
entitle the City too F ase-na-.61. rGenti.n of the administrative h
L. Other than is provided in this section, no other discovery is permitted. The
administrative hearing shall not be conducted according to the formal rules of evidence.
Any relevant evidence shall be admitted if it is the type of evidence on which reasonable
persons are accustomed to rely on in the conduct of serious affairs, regardless of the
existence of any common law or statutory rule which might make improper the
admission of such evidence over objection in civil actions in courts of competent
jurisdiction in this State. However, irrelevant or unduly repetitious evidence shall be
excluded.
24
M. The Hearing Officer may continue the hearing from time to time and /or request
additional information from the City, the owner or responsible person, or both prior to
issuing a written decision.
N. After considering all of the testimony and evidence submitted at the
administrative hearing, the Hearing Officer shall issue a written decision within ten (10)
days of the administrative hearing. The written decision shall state the reasons for that
decision. The decision of the Hearing Officer shall be final.
O. The written decision of the Hearing Officer shall be served either by personal
delivery on the owner or responsible person or by deposit in the mail for delivery by the
United States Postal Service, in a sealed envelope, postage prepaid, addressed to such
owner or responsible person to be notified, at their last known address as the same
appears in the public records of the City.
P. Any owner or responsible person aggrieved by a written decision of a Hearing
Officer following an administrative hearing may obtain review of the decision by filing a
petition for review with the Orange County Superior Court, Harbor Justice Center in
accordance with the timelines and provisions as set forth in California Government
Code Section 53069.4.
25
Newport Beach
Community Development Department
Code Enforce ent Division
_________________________________________________________ _______________________________ O -__________________________________________________________ _______________________________
Presented by
Matt Cosyhon, Code Enforcement Supervisor
Kyle Rowen, Deputy City Attorney
T
v �
�9LIFOR���
Background - Why we're here
• Address chronic violators and serious
violations of the NBMC
• Reduce time for complaint resolution
• Recover investigative and enforcement costs
• Encourage compliance with the NBMC
Ordinance Summary
Creates Administrative Code Enforcement Program-
Two Tier Administrative Citation Fine Schedule
Civil Penalties
Administrative Cost Recovery
Uniform appeals process and hearing procedures
LUGO Fines
Administrative Citations
• Update service procedures and methods for collections
Administrative Fines
Current Administrative Citation Fine Schedule
First Violation $100
Second Violation $200
Third Violation $500
• Issued for violations of the Newport Beach Municipal Code
• Issued at Officer's discretion
• Subject to review at an administrative appeal hearing
Administrative Fines
Proposed Administrative Citation Fine Schedule
First Violation $100 $1,000
Second Violation $200 $2,000
Third Violation $500 $3,000
Administrative Fines
V�
Tier One: Issued for violations of the NBMC.
Tier Two:
Requires approval by City Manager or his /her designee.
Limited to violations of the following:
■ Live Entertainment Permits- NBMC 5.28
■ Cafe Dance Permits — NBMC 5.32
■ Discretionary Permits (outdoor dining, use permits,etc)- NBMC 1o.50.020(
• Short Term lodging (no permit)- NBMC 5.95
• Prohibited discharges resulting in closure of Bay or Ocean- NBMC 14.36.03
• Occupancy- California Fire Code Sections 1.07.6 and 107.6.1- NBMC 9.04.020
Civil Penalties
Can be assessed in addition to an administrative
fine
• May be imposed each day the violation exists
• Not to exceed $1, o o o per day
• Not to exceed $200,000 per parcel
Civil Penalties
Assessed only after a responsible party fails to
comply with a Notice and Order
• Civil penalties can be assessed by:
Hearing Officer at an administrative hearing
Judge if the City files a civil case in court
• Can be appealed at the Orange County Superior
Court
Civil Penalties
------------ - - - - -- -
Civil penalties are assessed using the following
criteria:
Duration and frequency of the violation
Seriousness of the violation
History of the violation
Good faith efforts made by the responsible party to
comply with the NBMC
The impact the civil penalty would have on the
responsible party
The impact the violation had on the community
Cost Recovery
------------------
• Cannot exceed actual cost
• Fees can be appealed at an administrative hearing
• Allows City to recover administrative costs
associated with an investigation including staff
time for the following:
Conducting inspections and preparing investigation reports
Costs associated with sending notices to the responsible party
Preparing for and attending administrative hearings
Attorney's fees
Other expenses the City is entitled to recover under California
law
Appeals- LUGO and Administrative Citations
- -- - -- - --
Must be appealed within 3o days from date of
service
• Fee waiver (if requested) must be submitted
within 15 days
Hearing held within 15 -6o days of appeal
® Written decision within 10 days of hearing
Appeals- Cost Recovery
----------- - - - - -- -
• Must be appealed within 3o days of notification
• Hearing held within 6o days of appeal
• Factors considered by hearing officer include:
Did the responsible person create the violation
Present ability to correct the violation
Efforts and cooperation by responsible person to abate the violation
Whether reasonable minds can differ as to whether a violation exists
• Written decision with io days of hearing
---------------------------- 0
Questions ??
Collections
n
•Late fees maybe assessed for any
or penalties.
City may collect unpaid fines and
using the following methods:
Collection agencies
Liens
Special Assessment
Civil Action
unpaid fines
penalties
Costs associated with collections may be
assessed to responsible party.
Service procedures-
•Documents maybe mailed or personally
served.
Service by mail is deemed complete upon
deposit of letter in the mail.
Documents must be posted if personal service
cannot be achieved.