Ord 2010-77ORDINANCE NO. 77
AN ORDINANCE OF THE BOARD OF DIRECTORS
OF THE COSTA MESA SANITARY DISTRICT
ENACTING AN ADMINISTRATIVE CITATION SYSTEM
't WHEREAS, the Board has enacted an Operations Code and other ordinances
necessary to promote the health, safety and welfare; and
WHEREAS, the Board desires to encourage compliance with the District's
Operations Code and ordinances; and
WHEREAS, currently, any violation of a District ordinance is -a misdemeanor
prosecuted by the District Attorney; and
WHEREAS, Government Code Section 53069.4 provides for an alternative civil
system of enforcement whereby the District may make any violation of its Operations
Code and other ordinances subject to an administrative fine or penalty; and
WHEREAS, the Board desires to enact such civil enforcement system as a
remedy that can be used in addition to, or as an alternative to, criminal and all other
enforcement remedies available to the District; and
WHEREAS, the Board desires to set forth the administrative procedures that
shall govern the imposition, enforcement, collection, and administrative review of the
administrative fines or penalties; and
WHEREAS, the Board has determined that enactment of an administrative
citation system is in the public interest.
NOW, THEREFORE, the Board of Directors of the Costa Mesa Sanitary District
does hereby ORDAIN as follows:
Section 1. That Chapter 1.06 of the Costa Mesa Sanitary District Operations. Code is
hereby added to read as follows:
Chapter 1.06
Administrative Citations
Section 1.06.010. Applicability.
(a) This chapter subjects any violation of the provisions of this Operations Code to
administrative fines.
(b) This chapter establishes the administrative procedures that shall govern the
imposition, enforcement, collection, and administrative review of the administrative fines
pursuant to Government Code Section 53069.4.
(c) The issuance of an administrative citation under this chapter is solely at the
discretion of the Enforcement Official and is one option the Costa Mesa Sanitary District
has to address violations of this code. The procedures established in this chapter shall
supplement and be in addition to any criminal, civil or other remedy established by law
or under the provisions of this code to address violations of this Operations Code or
violations of any other Costa Mesa Sanitary District ordinance. Issuance of an
administrative citation shall be cumulative to, and shall not limit or be deemed a waiver
of, the use of any other remedy.
(d) The purpose of issuing administrative citations pursuant to this chapter is to
encourage compliance with the provisions of this code.
(e) This chapter is intended to impose strict administrative liability on responsible
parties for violations of this code.
Section 1.06.020. Definitions.
"Correction Condition" shall mean a code violation that pertains to a continuing
plumbing, sewer, sanitary , or similar structural or zoning violation that does not create
an immediate danger to health or safety.
"Enforcement Official" shall mean any officer, employee, agent, or independent
contractor with authority to enforce the Operations Code of the Costa Mesa Sanitary
District or any other code or ordinance adopted by the Costa Mesa Sanitary District.
"Responsible Party" shall mean any of the following:
(1) A person who causes a code violation to occur.
(2) A person who maintains or allows a code violation to continue by his, her
or its action or failure to act.
(3) A person whose agent, employee or independent contractor causes a
code violation by its action or failure to act.
(4) A person who is the owner of, lessee or sublessee with a current right of
possession of, real property where a property - related code violation occurs.
(5) The owner, operator or other person in charge of a business where a code
violation occurs.
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(6) A person who is the beneficiary under a deed of trust for property where a
property- related code violation exists.
"Person" shall mean a natural person, legal entity, business, corporation, trust, or other
entity and shall also include the owners, majority shareholders, corporate officers,
trustees and general partners of any legal entity, business, corporation, trust or other
entity.
Section 1.06.030. Administrative Citation Generally.
(a) Issuance. An Enforcement Official, upon making a determination that any
provision of this Operations Code or any other Costa Mesa Sanitary District Ordinance
has been violated, has authority to issue an administrative citation to a responsible party
or parties for the violation. An Enforcement Official may issue an administrative citation
for a violation that is not committed in the Enforcement Official's presence if the
Enforcement Official has determined that the responsible party committed a code
violation.
(b) Content. An administrative citation shall contain the following information:
(1) Name of the responsible party.
(2) Date of violation.
(3) Code section violated.
(4) Address or other location where the violation occurred.
(5) Description of the violation.
(6) Amount of the fine.
(7) Procedure to pay the fine.
(8) Warning that a failure to make a timely payment of the fine will result in a
late payment penalty.
(9) Description of the procedure for requesting an administrative review to
contest the administrative citation.
(10) Description of the procedure for requesting a waiver of the fine deposit.
(11) Date the citation is issued.
(12) Signature of the Enforcement Official issuing the citation.
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(13) A notice that unpaid fines, interest and penalties are subject to the
assessment and lien collection procedures of this Chapter.
(c) Service.
An administrative citation may be served by any of the following methods:
(1) Personal Service. An Enforcement Official may personally serve the
citation on the responsible party. If reasonably available, the Enforcement Official
should obtain the signature of the responsible party. The failure of the Enforcement
Official to request or obtain the signature of the responsible party shall not invalidate the
service of the administrative citation and shall not invalidate the administrative citation.
(2) Mail. An Enforcement Official may mail the administrative citation by first
class mail if the responsible party is not present for personal service when the
Enforcement Official determines there has been a violation. The administrative citation
shall be mailed to the responsible party's address as shown on the county's last
equalized assessment roll for a property - related violation, or to any address known for
the responsible party for all other violations. Service by mail shall be deemed to have
been completed at the time of deposit in the U.S. Mail in a fully addressed envelope,
postage prepaid.
(3) Posting. An Enforcement Official may post a copy of the administrative
citation on the property in a conspicuous place for a property- related violation when the
responsible party resides at an unknown address. A copy of the administrative citation
will also be mailed to the responsible party at the address of the property.
(4) Other manners of service. An administrative citation may be served on the
responsible party in any manner provided for service of summons.
Section 1.06.040. Administrative Citation Timing. Except as provided in Section
1.06.050, an administrative citation may be issued immediately and without a prior
warning for any violation of this Operations Code or any other District ordinance.
Section 1.06.050. Administrative Citation for Continuing Plumbing, Sewer,
Sanitary, or Similar Structural or Zoning Violations that Do Not Create an
Immediate Hazard.
(a) Applicability of this Section. This Section shall only apply to a correction
condition(s).
(b) Correction Period. A responsible party shall have thirty (30) calendar days to
correct or remedy a correction condition prior to the issuance of an administrative
citation. A correction period longer than thirty (30) calendar days may be granted if
deemed necessary by the Enforcement Official.
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(c) Correction Notice. Upon discovery of a correction condition, the Enforcement
Official shall issue a written correction notice to the responsible party or parties. The
correction notice shall refer to the code section(s) violated and describe how that code
section(s) was violated. The correction notice shall also describe the action necessary
to correct the violation(s) and state the final date by which the correction must be
completed, which shall not be less than thirty (30) calendar days from the date the
correction notice is issued. In addition, the correction notice shall include a warning that
failure to correct the violation may result in the imposition of an administrative fine and
shall state the amount of the fine imposed for the violation.
(d) Procedure Upon Expiration of Correction Period. If the responsible party does not
remedy the correction condition within the period set forth in the correction notice, the
Enforcement Official may issue an administrative citation.
Section 1.06.060. Responsible Party's Obligations.
Within fifteen (15) calendar days from the date the administrative citation is served by
any of the methods of service specified in Subsection (c) of Section 1.06.030, a
responsible party shall (i) pay the fine amount designated on the administrative citation;
or (ii) make a written request for an administrative hearing.
Section 1.06.070. Administrative Fine.
(a) Amount. Fines for administrative citations shall be assessed in the following
amounts:
(1) A fine not exceeding Two Hundred Fifty Dollars ($250.00) for a first violation,
except that a first violation of District Operations Code Section 10.01.060, pertaining to
the Placement of Trash Containers, shall be subject to a fine not exceeding Seventy
Five Dollars ($75.00);
(2) A fine not exceeding Five Hundred Dollars ($500.00) for a second violation
of the same ordinance or permit within one year;
(3) A fine not exceeding Nine Hundred Fifty Dollars ($950.00) for each
additional violation of the same ordinance or permit within one year.
(b) Continuing Violation. Each and every day during any portion of which any
ordinance violation is committed, continued, maintained or permitted shall constitute a
separate offense.
(c) Payments. If the responsible party does not make a timely request for a hearing,
he, she or it must pay the administrative fine directly to the Costa Mesa Sanitary District
within fifteen (15) calendar days from the date the administrative citation is issued.
Payment of a fine shall not excuse or discharge the failure to correct the violation(s) nor
shall it bar further enforcement action by the District.
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(d) No Waiver. Under no circumstances shall the payment of the administrative fine
constitute a waiver of the responsibly party's right to a hearing. Therefore, a
responsible party may pay the administrative fine within the fifteen (15) calendar day
period and also obtain a hearing to protest the imposition of the administrative fine,
provided that the responsible party makes a timely request for a hearing.
(e) Obligation to Correct Violation. Nothing in this chapter shall be interpreted to mean
that because a responsible party has paid the administrative fine he, she or it is not
required to correct the ordinance violation. If the responsible party fails to correct the
violation(s), subsequent administrative citations may be issued for the same violation(s).
The amount of the fine for failure to correct the violation shall increase at a rate
specified in this chapter.
Section 1.06.080. Administrative hearing.
(a) Purpose. It is the purpose and intent of the Board of Directors to afford due
process of law to any person who is issued an administrative citation.
(b) Request for Hearing. Within fifteen (15) calendar days from the date the
administrative citation is served, the responsibly party must make a written request for a
hearing, together with an advanced deposit of the fine. 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.
(c) Hearing Officer.
1. The General Manager shall serve as the Hearing Officer or may appoint a
person or persons who shall preside at the hearing and hear all facts and testimony
presented and deemed appropriate ( "Hearing Officer ").
2. The employment, performance, evaluation, compensation and benefits of the
Hearing Officer, if any, shall not be directly or indirectly conditioned upon the amount of
the administrative citation fines upheld by the Hearing Officer.
3. Any person designated to serve as a Hearing Officer is subject to
disqualification for bias, prejudice, interest, or for any other reason for which a judge
may be disqualified pursuant to Code of Civil Procedure Section 170.1. The
responsible party may challenge the Hearing Officer's impartiality by filing a statement
with the General Manager objecting to the Hearing before the Hearing Officer and
setting forth the grounds for disqualification.
(d) Administrative Hearing Procedures.
1. No hearing to contest an administrative citation before a Hearing Officer shall
be held unless and until a request for hearing form has been completed and submitted
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and the fine has been deposited in advance. The fine deposit may be waived by the
General Manager upon a showing of financial hardship.
2. The administrative citation and any additional documents submitted by the
Enforcement Official shall constitute prima facie evidence of the respective facts
contained in those documents and the Enforcement Official shall not be required to
attend the administrative hearing but may attend the hearing in his or her discretion.
(e) Administrative Order.
1. Within fifteen (15) calendar days of the conclusion of the hearing, the Hearing
Officer shall provide the responsible party with a decision in writing ( "administrative
order"). The Hearing Officer shall provide the responsible party with the administrative
order by personal service or by registered or certified mail to the responsible party's last
known address.
2. The administrative order shall contain the Hearing Officer's findings of fact
and conclusions and the procedure described in Section 1.06.090 for seeking judicial
review.
3. A decision in favor of the responsible party shall constitute a dismissal of the
administrative citation. The District shall return any monies paid by the responsible
party towards the dismissed administrative citation.
4. The Hearing Officer's administrative order is final.
(f) Failure to Attend Administrative Hearing.
1. Waiver of Right to Hearing. The responsible party's failure to appear at a
hearing shall constitute a waiver of the right to a hearing and shall be presumed an
admission of guilt to the code violation(s) indicated on the administrative citation.
2. Good Cause. Upon a showing of good cause by the responsible party, the
Hearing Officer may excuse the responsible party's failure to appear at the hearing and
reschedule the hearing. Under no circumstances shall the hearing be rescheduled
more than once unless the responsible party pays a deposit in the amount of the
administrative fine. Nothing in this subsection shall be interpreted to mean the
responsible party is excused from the requirement of paying the administrative fine or
appearing at a hearing.
Section 1.06.090. Judicial review.
If an administrative order is rendered in favor of the District, the responsible party may
seek judicial review of the administrative order in the Orange County Superior Court,
Harbor Justice Center, by doing one of the following:
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1. Appeal the administrative order pursuant to California Government Code
Section 53069.4 within twenty (20) calendar days after service of the administrative
order. Pursuant to Section 53069.4, the appealing party shall serve a copy of the
appeal notice in person or by first class mail upon the District. Appeal notices shall be
sent to the District Clerk. If no appeal notice is filed within the twenty (20) calendar day
period, the decision shall be deemed confirmed; or
2. File a petition for a writ of mandate pursuant to California Code of Civil
Procedure Section 1094.5 et seq. within ninety (90) calendar days after service of the
administrative order.
Section 1.06.100. Failure to comply.
(a) Event Defined. As used in this Section the term "event" shall mean any of the
following occurrences:
1. The responsible party fails to either pay the administrative fine or request a
hearing within fifteen (15) calendar days from the date the administrative citation is
served.
2. The responsible party requests a hearing and fails to appear.
3. The responsible party fails to either comply with the administrative order or
seek judicial review of the administrative order.
(b) Penalty Fine. The occurrence of an event may result in the District increasing the
administrative fine, not to exceed the maximum amounts set forth in Section 1.06.070.
( "penalty fine ").
(c) Account Receivable. Upon the occurrence of an event, the District may treat the
administrative fine or penalty fine, whichever is applicable, as an account receivable
subject to the District's policy for delinquent accounts receivable.
(d) Misdemeanor. An event shall constitute a misdemeanor punishable by a maximum
of a One Thousand Dollar ($1,000.00) fine or six (6) months in jail, or both.
Section 1.06.110. Collection of Unpaid Fines.
(a) The District, at its discretion, may pursue any and all legal and equitable
remedies for the collection of unpaid fines, interest and penalties. Pursuit of one remedy
does not preclude the pursuit of any other remedies until the total fines, interest and
penalties owed by a person under this chapter have been collected.
(b) The District may refuse to issue, extend, or renew any permit, license, or other
approval to any person who has unpaid delinquent fines, interest, penalties, liens or
assessments due under this chapter related to the permit, license, or approval.
(c) The District may suspend any permit, license, or approval issued to a person who
has unpaid fines related to the permit, license, or approval totaling Five Hundred Dollars
($500.00) or more that have been delinquent for over thirty (30) calendar days. The
suspension shall become effective twenty (20) calendar days after the day notice of
suspension is placed in the U.S. mail, postage prepaid, addressed to the person and
shall continue until the delinquency is paid in full. Continuing to operate under a
suspended permit, license or approval shall be grounds for revocation of the permit,
license or approval.
(d) Any violation of this chapter shall constitute a public nuisance. To compel
compliance, the District may seek to abate the nuisance and collect the costs incurred
by means of a nuisance abatement lien and /or special assessment against the property
where a property- related violation occurred. Any unpaid delinquent civil fines, interest.
and penalties may be recovered as part of any such lien or special assessment against
the property of the responsible party who is the owner of the property where the
violation occurred.
(1) To pursue.an abatement of a code violation as a nuisance and recover the
costs, including any delinquent civil fines, interest and penalties as an abatement lien or
special assessment, the District may take the following steps:
a. Submit to and receive from the Board of Directors a resolution
certifying the amounts of the liens and special assessments sought to be collected from
each property owner;
b. Request the Orange County Recorder to record a notice of any liens,
or special assessments, and send the Recorder the resolution certifying the amounts;
c. Request the Orange County Tax Collector collect any special
assessments certified by the Board of Directors; and
d. Take any other necessary action to enforce collection of any liens, or
special assessments provided for in this chapter.
(2) The District may pursue the lien and special assessment remedies whether
or not the District is pursuing any other action to terminate an ongoing code violation
that was the basis for the fine.
(3) The lien or assessment shall be imposed on the date the citation for the
Code violation is issued to the responsible person and becomes effective upon the
recording of a Notice of Lien or Assessment by the County Recorder. This notice shall
satisfy the notice requirements when an administrative citation is personally served on
the responsible party. In addition, the District shall send notice by first class mail stating
the date, time and location of the meeting to each property owner listed in the proposed
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resolution at least ten (10) days before the Board of Directors considers the resolution
and certifies the amounts of the liens and special assessments.
(4) A responsible party may contest the amount and /or validity of any lien or
assessment for a civil fine at the public hearing to certify the amount of the lien or
assessment by the Board of Directors. Such contests shall be limited to the issue of the
amount and /or validity of the lien or assessment and may not consider whether the
underlying Code violation occurred. Pursuit of such a contest by a responsible party is
necessary to exhaust the administrative remedies concerning a legal challenge to the
validity of any such lien or assessment.
(e) The parent or legal guardian of a responsible party who is a minor shall be liable for
any fines imposed upon the minor pursuant to the provisions of this chapter. Any such
fines may be collected from the minor, parent or guardian.
Section 3. Should any part, clause or section of this Ordinance be declared by any Court
of competent jurisdiction to be invalid, the remaining provisions of this Ordinance shall
nevertheless be and remain in full force and effect and the Board of Directors of the Costa
Mesa Sanitary District of Orange County, California, hereby declares that each and every
section, clause, provision or part of this Ordinance would have been adopted and made a
part of this Ordinance without the adoption of any portion thereof and that the invalidity of
any part or provision hereof shall not in any way affect the validity or enforcement of the
remaining provisions of this Ordinance that may stand on their own.
Section 4. Pursuant to Health and Safety Code Sections 6490 and 6491.3, the Clerk shall
cause this ordinance or a summary thereof to be published in a newspaper of general
circulation printed and published in the District according to law.
PASSED and ADOPTED this 9% day of 2010.
S cretary
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President
STATE OF CALIFORNIA)
COUNTY OF ORANGE ) SS
CITY OF COSTA MESA )
I, JOAN REVAK, Clerk of the Costa Mesa Sanitary District, hereby certify that the
above and foregoing Ordinance No. 77 was duly and regularly passed and adopted by
said Board of Directors at a regular meeting thereof, held on the 27th day of May 2010
by the following vote:
AYES: Arlene Schafer, Robert Ooten, Gary Monahan, James Ferryman,
NOES: Arthur Perry
ABSENT:
ABSTAIN:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of
the Costa Mesa Sanitary District, this 27th day of May 2010.
Clerk of *Gosh Mesa Sanitary District
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