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HomeMy WebLinkAbout2012-13 - Establishing an Administrative Code Enforcement Program, Civil Penalties 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 10.66.07ORDINANCE NO. 2012 -13 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 ADMINISTRATIVE CODE 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. Y] 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 3 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: 1. 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 M 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: 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. 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: 1. 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. s 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 N 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: 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: and d. The degree of cooperation provided by the Responsible Person. 7 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. 1.05.060 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. D 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. 9 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: 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; 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: 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; 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: 1. 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: 1. 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: ill I . 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: 1. 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: 10.66.060 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. 19 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(6) 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 Yea 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. 0. 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 12th day of June , 2012, and adopted on the 26th day of June , 2012, by the following vote, to -wit: AYES, COUNCILMEMBERS Hill, Rosansky. Curry, Selich, Henn, Daigle, Mayor Gardner NOES,COUNCILMEMBERS, ABSENT, COUNCILMEMBERS None MAYOR ATTEST` /10. , n P'. . I; CIT 24 STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; that the foregoing ordinance, being Ordinance No. 2012 -13 was duly and regularly introduced on the 12th day of June, 2012, and adopted by the City Council of said City at a regular meeting of said Council, duly and regularly held on the 26'h day of June, 2012, and that the same was so passed and adopted by the following vote, to wit: Ayes: Hill, Rosansky, Curry, Selich, Henn, Daigle, Mayor Gardner Noes: None Absent: None IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 27th day of June, 2012. G�'�'yVVK � IINIIYIIV City Clerk City of Newport Beach, California (Seal) CERTIFICATE OF PUBLICATION STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH } I, LEILANI I. BROWN, City Clerk of the City of Newport Beach, California, do hereby certify that Ordinance No. 2012 -13 has been duly and regularly published according to law and the order of the City Council of said City and that same was so published in The Daily Pilot, a daily newspaper of general circulation on the following dates: 2012. Introduced Ordinance: June 16, 2012 Adopted Ordinance: June 30, 2012 In witness whereof, I have hereunto subscribed my name this Z1" day of IV&/ A�J- ft� City Clerk _-`- City of Newport Beach, California (Seal)