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A. Appeal to hearing administrator. Any person aggrieved by the action of the enforcement officer in issuing a notice of administrative citation pursuant to the provisions of this chapter may appeal such notice to the hearing administrator. If no appeal is filed within ten business days of the date of issuance of the notice of administrative citation, the order of the enforcement officer shall be deemed final.
B. Corrections. Revocation of the notice of administrative citation by the hearing administrator or voluntary abatement of the nuisance either on or prior to the notice of administrative citation due date, and any authorized extensions thereto, shall cause the case to be closed.
C. Contested appeals. To appeal a notice of administrative citation, the person receiving the notice (the "appellant") shall file a signed written request following the appeal procedures outlined in the notice of administrative citation. An appellant may contest the notice of administrative citation by denying that a violation occurred, by alleging that a violation was corrected within the required correction period or, if applicable, by establishing that he or she is not the owner of the real property or the owner of the business at the time the violation should have been corrected.
D. Receipt of an appeal request. To be effective, the appeal request must be received by the city clerk, or designee, not later than ten business days after the date the notice of administrative citation was issued. Where a request is mailed by the appellant, the request shall be deemed filed on the date actually received by the city clerk. Failure by the appellant to timely request an appeal shall be deemed a waiver of the right to appeal. The appellant shall be responsible for ensuring timely receipt of the appeal by the city clerk, regardless of the method of transmission of the appeal.
(Ord. O-2021-003 § 3, 2021: Ord. 2009-003, § 1 (part), 2009)
A. Time and place of hearings. Hearings shall be conducted by a hearing administrator on the date, time and place specified by the city not less than ten (10) days and not more than twenty (20) days from the date the appeal request is received. As soon as practicable after scheduling the hearing, the hearing administrator shall prepare a notice of administrative citation appeal, which shall be in substantially the following form:
"You are hereby notified that a hearing will be held before the Administrative Hearing Officer at ________ on the ___ day of _______, ____, to hear your appeal of the administrative citation issued or otherwise served upon you. You may be present at the hearing. You may be, but need not be, represented by an attorney. You may present any relevant evidence prior to or at the hearing."
The notice of administrative citation appeal shall be served by mail or personal service as provided in Section 1.24.150.
B. Appeal records. The city clerk or designee shall ensure that the pertinent notice of administrative citation is delivered to the hearing administrator in sufficient time prior to the appeal hearing. Before the hearing, the city clerk shall also make available to the appellant a copy of any additional information concerning the notice of administrative citation which will be provided to the hearing administrator.
C. Presentation of evidence. The appellant shall be given the opportunity to testify and to present evidence relevant to the code violation specified in the notice of administrative citation.
D. Use of reports as evidence. The notice of administrative citation and any other reports prepared by the enforcement officer or the director concerning a code violation or attempted correction of a code violation that are provided to the hearing administrator shall be accepted by the hearing administrator as prima facie evidence of the code violation and the facts stated in such documents.
E. Witnesses and additional evidence. Neither the enforcement officer nor any other representative of the city shall be required to attend the appeal hearing, nor shall the hearing administrator require that there be submitted any evidence, other than the notice of administrative citation, that may exist among the public records of the city with respect to the violation. However, any such appearance or submission may be made at the discretion of the director.
F. Continuances. The hearing administrator may continue an appeal hearing if a request is made showing good cause by the appellant or the director. All continuance requests shall either: (1) be made in person at the hearing by the appellant or his or her representative if the appellant is physically unable to attend; or (2) be made by a written request received from the director or the appellant. If the continuance is granted, a new hearing date shall be set within thirty days. If the continuance is denied, the hearing shall proceed then and there as scheduled, and if the appellant is not present the request(s) shall be deemed abandoned in accordance with subsection H. of this section.
G. Rules of evidence. The appeal hearing shall be conducted informally and the legal or formal rules of evidence need not be followed. The hearing administrator does not have the authority to issue a subpoena.
H. Failure to appear. The failure of the appellant to appear at the hearing, unless the hearing was continued per subsection F. of this section, shall constitute an abandonment of the appeal.
(Ord. O-2021-003, § 4, 2021: Ord. 2009-003, § 1 (part), 2009)
A. Notice of decision. After considering all the evidence and testimony submitted at an appeal hearing, the hearing administrator shall issue a notice of decision within two business days to either uphold or revoke the notice of administrative citation, based upon a conclusion of whether a violation occurred. Within one business day subsequent to the hearing administrator's issuance of the notice of decision, the notice of decision shall be mailed by first class and certified mail, postage prepaid, return receipt requested, to the appellant or their designated representative. Any failure by the appellant to appear at the appeal hearing shall be noted on the notice of decision by the hearing administrator. The hearing administrator may reduce or cancel the amount of any administrative fine or revoke the notice of administrative citation in unusual cases when extenuating circumstances make doing so appropriate and in the interest of justice. The decision of the hearing administrator shall be final.
B. Payment of fine after appeal decision. The filing of an appeal shall suspend any fine assessed in the notice of administrative citation. In the event that the notice of administrative citation is revoked, the fine shall also be revoked. In the event that the notice of administrative citation is upheld, a new compliance deadline and fine due date shall be established by the hearing administrator and indicated on the notice of decision for the appeal.
(Ord. 2009-003, § 1 (part), 2009)
A. Applicability of California Government Code Section 53069.4. The appellant may seek judicial review of the hearing administrator's decision by filing a further appeal with the San Luis Obispo County Superior Court, Limited Civil Division, within twenty calendar days after the service of the notice of decision, in accordance with the provisions of California Government Code Section 53069.4. The appeal filed with the court must also contain a proof of service showing a copy of the appeal was served upon the hearing administrator for the City of Pismo Beach. The appellant must pay to the Superior Court the appropriate court filing fee when the appeal is filed.
B. Failure to exhaust administrative appeal. No judicial review is permitted from a decision where the appellant is deemed to have abandoned the contest of the notice of administrative citation by an unexcused failure to appear at the appeal hearing or by the failure to request an administrative appeal hearing before the hearing administrator.
C. Forwarding of records to Superior Court. Within fifteen days of the Court's request, the city attorney or the city attorney's designee shall forward to the Superior Court the pertinent notice of administrative citation documents for any case appealed to that court. If the Superior Court revokes any notice of administrative citation or otherwise finds in favor of the appellant, the city will refund to the appellant the Superior Court filing fee paid by the appellant as required by California Government Code Section 53069.4(b)(2) .
(Ord. 2009-003, § 1 (part), 2009)
A. City remedies. The city, at its discretion, may pursue any and all legal, equitable, and administrative remedies for the collection of unpaid civil administrative fines imposed pursuant to this chapter.
1. Remedies cumulative. Pursuit of one remedy does not preclude the pursuit of any other remedies until the total fines owed by a person under this chapter have been collected.
2. Refusal to issue permits. A city department may refuse to accept an application for a city permit or license or to refuse to issue, extend, or renew to any person, who has unpaid delinquent fines, liens, or assessments, any city permit, license, or other city approval pertaining to the property that is the subject of a notice of administrative citation and an unpaid administrative fine.
3. Suspension of issued permits. Notwithstanding any other provision of the code, any permit, license, or any type of land use approval issued by the city to a person who has unpaid administrative fines totaling five hundred dollars or more which remain delinquent for thirty days or longer may be suspended by the department which issued the permit or other entitlement. The suspension becomes effective ten days after the date the notice of the suspension is placed by the issuing department in the United States mail, postage prepaid, addressed to the person, and continues until the administrative delinquency is paid in full. The person may request an appeal/or review hearing pursuant to the specific permit, license, or other city approval procedures or ordinance if such a request is filed before the ten-day period ends.
4. Criminal remedies. The city attorney, at his or her discretion, may also issue a criminal citation or complaint (infraction or misdemeanor) to any person for a code violation when the applicable fine has not been paid.
B. Violations constitute a public nuisance. The director may pursue the remedies described in this section whether or not the city is pursuing any other action to terminate an ongoing code violation that was the basis for an administrative fine or to otherwise abate the violation or sanction the property owner. To compel code compliance, the city may also seek to collect assessed fines by means of a nuisance abatement lien or special assessment against the property where a property related violation occurred in accordance with the procedures in Government Code Sections 38773.1 and 38773.5.
C. Lien conditions. To recover any delinquent administrative fines as a lien or special assessment on real property, the following conditions must be met:
1. The director must submit to and receive approval from the city council for a resolution certifying the amounts of the liens and special assessments sought to be collected from each property owner; and
2. The total amount of the delinquent fine against the property owner must be delinquent for sixty days or more.
D. Lien collections. The director is authorized to take any steps necessary to enforce collection of the lien or special assessment, including but not limited to the following:
1. Request the county recorder to record a notice of any lien or special assessment certified by resolution of the city council.
2. Request the county tax collector on behalf of the city to collect any special assessments certified by resolution of the city council.
E. Notice of lien collection procedures. All notices of administrative citation shall contain a notice that unpaid fines are subject to the assessment and lien collection procedures of this chapter. This notice shall satisfy the notice requirements of California Government Code Sections 38773.1 and 38773.5 when a notice of administrative citation is served on the person. In addition, the director shall by first class mail send notice stating the date, time, and location of the meeting to each property owner at least ten days before the city council considers the resolution to certify the amounts of the liens and special assessments. The lien or special assessment shall be imposed on the date the notice of administrative citation for the code violation is issued to the responsible person and shall become effective upon the recording of a notice of lien or special assessment by the county recorder.
F. Contesting certification of a lien. A person may contest the amount or the validity of any lien or special assessment for a civil fine at the public hearing when the city council considers the resolution to certify the liens or assessments. Such contests shall be limited to the issue of the amount or validity of the lien or assessment and may not consider whether the underlying code violation occurred. Pursuit of such a contest by a person is necessary to exhaust the administrative remedies concerning a legal challenge to the validity of any such lien or special assessment.
G. Satisfaction of lien. When payment in full is received by the city for outstanding penalties and costs, the director shall either record a notice of satisfaction or provide the property owner or financial institution with a notice of satisfaction so they may record this notice with the county recorder. Such notice of satisfaction shall cancel the city's lien.
(Ord. 2009-003, § 1 (part), 2009)
A. Service. Except as otherwise required by applicable law, all notices required to be given by this chapter, including, but not limited to, administrative citations, notice of hearings and the hearing administrator's decision shall be given either by personal delivery thereof to the person to be notified or by deposit in the United States mail, in a sealed envelope postage paid, addressed to such person to be notified at his or her last known business or residence address as the same appears in the public records or other records pertaining to the matter to which such notice is directed. Except for notices of appeal pursuant to Section 1.24.100(D), service by mail shall be deemed to have been completed at the time of deposit in the United States mail. Where real property is involved, written notices shall be mailed to the property owner(s) at the address shown on the last equalized county assessment roll.
B. Unsuccessful service of notice. Where personal service or service by mail upon the property owner is unsuccessful, the city shall cause all of the following to occur:
1. A copy of the noticed material shall be conspicuously posted at the real property which is the subject of the citation, abatement or compliance order;
2. A copy of the notice, as appropriate, shall be published at least three consecutive days in a newspaper of general circulation in the city. A copy of the notice shall be published at least five days prior to the date of any public hearing or proceeding related to the notice.
C. Validity. Failure to receive any notice specified in this chapter shall not affect the validity of proceedings conducted hereunder.
(Ord. 2009-003, § 1 (part), 2009)