(a) Application. With the exception of licensing related violations pertaining to permitted facilities subject to enforcement under § 33.0109 of this E.H. Code, all violations of any provision of this E.H. Code, are subject to enforcement through the use of administrative citations in accordance with Government Code § 53069.4. Administrative citations may be issued for any violation of this E.H. Code including but not limited to those violations not occurring in the presence of the Enforcement Officer (as defined below) issuing the citation where the issuing officer determines through investigation that the responsible party (as defined below) committed, caused, allowed, or is otherwise responsible for the violation. The following procedures shall govern the imposition, enforcement, collection, administrative review, and judicial review of administrative citations and penalties.
(b) Definitions. For the purposes of this Chapter, certain words are defined as follows:
ADMINISTRATIVE CITATION. A citation issued pursuant to this Chapter, stating that one or more violations of this E.H. Code has occurred and stating the amount of the administrative penalty to be paid by the responsible party.
ADMINISTRATIVE COSTS. All costs incurred by or on behalf of the County from the first discovery of the violation of this E.H. Code through the appeal process and until compliance is achieved, including but not limited to, staff time in investigating the violation, inspecting the property where the violation occurred, preparing investigation reports, sending notices, preparing for and attending any appeal hearing, telephone contacts, and correspondence. ADMINISTRATIVE COSTS shall not include attorney’s fees.
CODIFIED ORDINANCES OF THE COUNTY OF SAN BERNARDINO, and SAN BERNARDINO COUNTY CODE and SBCC. The Codified Ordinances of San Bernardino County, including all pertinent provisions of State codes as from time to time adopted and incorporated therein, enacted by the Board of Supervisors of the County of San Bernardino, acting pursuant to authority granted under the County Charter, Government Code §§ 25126, 25127, and 25128; or other applicable law.
COUNTY. San Bernardino County and, as it is also known, the County of San Bernardino, a political subdivision of the State of California, as enacted by the State Legislature by the Statutes of California passed at the Fourth Session of the Legislature, Chapter LXXVIII, April 26, 1853.
E.H. CODE. The Codified Ordinances of San Bernardino County located at Division 3 of Title 3 of the San Bernardino County Code.
ENFORCEMENT OFFICER. Any County employee, Special District employee, or agent of the County with the authority to enforce any provision of this Code, specifically:
(A) The Deputy Director, each Code Enforcement Supervisor, and each Code Enforcement Officer or other designated employee of the Code Enforcement Division of the Land Use Services Department;
(B) The Building Official, each Regional Building and Safety Supervisor, each Building Inspector, and other designated employees of the Building and Safety Division of the Land Use Services Department;
(C) The Fire Chief/Fire Warden, Fire Marshal, and other designated employees of the San Bernardino County Fire Protection District;
(D) The Director, each Inspector, and other designated employees of the Environmental Health Services Division of the Department of Public Health;
(E) The Division Chief, each Animal Control Supervisor/Officer, and other designated employees of the Animal Care and Control Program of the Department of Public Health;
(F) The Sheriff-Coroner, each Deputy Sheriff (all ranks), and other designated employees of the Department of the Sheriff-Coroner;
(G) The Director and other designated employees of the Public Works Department; and
(H) Any other Director and other designated employees of a County Department or Special District as designated by the County Administrative Officer or the Board of Supervisors.
ENVIRONMENTAL HEALTH CODE and E.H. CODE. Division 3: Environmental Health of Title 3: Health and Sanitation and Animal Regulations of the San Bernardino County Code.
PERSON. Without limitation, any natural person, firm, association, club, organization, corporation, partnership, business, business trust, company or other entity, which is recognized by law as the subject of rights or duties.
RESPONSIBLE PARTY. For the purpose of this Chapter shall mean:
(A) Each person, other than a minor, who commits or causes a violation of any provision of this E.H. Code to occur, exist, or continue;
(B) Each person who is the parent or legal guardian of the minor person who commits or causes a violation of any provision of this E.H. Code to occur, exist, or continue;
(C) Each person who has a legal or equitable ownership interest in any parcel of real property located within the unincorporated area of the County of San Bernardino and who commits, causes, or otherwise allows the violation of any provision of this E.H. Code to occur, exist, or continue on such parcel; and
(D) Each person who, although not an owner, nevertheless has a legal right or legal obligation to exercise possession and control over any parcel of real property located within the unincorporated area of the County of San Bernardino and who commits, causes, or otherwise allows the violation of any provision of this E.H. Code to occur, exist, or continue on such parcel; and
(E) In addition to the business entity itself, each person who is an owner of that business entity in those cases in which the commission, occurrence, existence, or continuation of the violation of any provision of this E.H. Code is most reasonably attributable to that business entity and not to an employee of that business entity.
(c) Content of Citation. The administrative citation shall be issued on a form approved by the County Administrative Officer in consultation with County Counsel. The administrative citation form may be tailored to the specific needs of the issuing department as approved by the County Administrative Officer; however, all administrative citations regardless of the issuing County Department shall contain the following information:
(1) The name and mailing address of the responsible party.
(2) The administrative citation shall refer to the date(s) and location of the violation and the approximate time(s), if applicable, that the violation was observed.
(3) The administrative citation shall identify each violation by the applicable Section number of this E.H. Code and by either the Section’s title or a brief descriptive caption; or by reference to the applicable permit describing the condition violated.
(4) The administrative citation shall describe the action(s) required to correct the violations.
(5) The administrative citation shall require the responsible party to immediately correct the violation where appropriate or otherwise indicate a reasonable compliance deadline date and shall explain the consequences of failure to correct the violation.
(6) The administrative citation shall state the amount of the penalty, if any, imposed for the violation. Multiple violations may be listed on the same citation form. In the event of multiple violations, the administrative citation shall list the penalty amount for each violation and the total amount of all of the penalties. For continuing violations pertaining to building, plumbing, electrical, or other similar structural or zoning issues, and where such continuing violations do not create an immediate danger to health or safety, the administrative citation shall provide for a reasonable period of time to correct or otherwise remedy the violation prior to the imposition of the penalty. Otherwise, the penalty may be imposed immediately.
(7) The administrative citation shall contain a notation box for the Enforcement Officer to indicate whether or not the citation is issued as a “warning only” and without penalty. The administrative citation shall also include a notation box that may be used by the Enforcement Officer to indicate that the penalty will be waived if the violation is corrected by the compliance deadline date indicated on the citation form.
(8) The administrative citation shall explain how the penalty shall be paid and the time period by which it shall be paid, and the consequences of failure to pay the penalty within this time period.
(9) The administrative citation shall identify all appeal rights and include instructions on how to appeal the citation, including instructions regarding the advance deposit hardship waiver.
(10) The administrative citation shall contain the printed name and the signature of the Enforcement Officer issuing the citation and, where reasonably possible to obtain it, the signature of the responsible party (or managing employee if the responsible party is a business entity), if he or she can be located, as set forth in Subdivision (d) below.
(d) Service of Citation.
(1) If the responsible party is present at the scene of the violation, the Enforcement Officer shall attempt to obtain their signature on the administrative citation and shall deliver a copy of the administrative citation to them.
(2) If the responsible party is a business, and the business owner is on the premises, the Enforcement Officer shall attempt to deliver the administrative citation to the business owner. If the Enforcement Officer is unable to serve the business owner on the premises and the Enforcement Officer can only locate the manager or on-site supervisor, the administrative citation may be issued in the name of the business and a copy given to the manager or on-site supervisor. A copy of the administrative citation shall also be mailed to the business owner by certified mail, return receipt requested, and by first class mail. If a copy of the administrative citation that is sent by certified mail is returned by the United States Postal Service unsigned or marked “unclaimed” and/or “refused”, then service by first class mail shall be deemed effective provided it is also not returned by the United States Postal Service.
(3) If a responsible party cannot be located at the property, then a copy of the administrative citation shall be posted in a conspicuous place on or near that property, if practicable, and a copy mailed by certified mail, return receipt requested, and by first class mail, to each responsible party at their last known addresses as they appear on the last County equalized assessment role, or any other available public records related to title or ownership of the property that is the subject of the administrative citation. If the copy of the administrative citation sent by certified mail to a responsible party is returned by the United States Postal Service with the mail receipt unsigned, or marked “unclaimed” and/or “refused”, then service by first class mail shall be deemed effective provided it is also not returned by the United States Postal Service.
(4) The failure of any responsible party to receive a copy of the administrative citation shall not affect the validity of the proceedings.
(e) Administrative Penalties and Costs.
(1) Unless otherwise provided in this E.H. Code, the amount of penalty to be imposed for a violation of this E.H. Code and assessed by means of an administrative citation shall be $100.00 for the first occurrence of a violation; $200.00 for the second occurrence of the same violation within one year; and $500.00 for the third and each subsequent occurrence of the same violation within one year. The maximum fines imposed in this section are based upon the provisions of Government Code § 25132 and will be increased automatically and without amendment to this Section upon any amendment to Government Code § 25132 increasing the amount of fines permitted.
(2) If the violation is not corrected within the time limits established in this E.H. Code, then additional administrative citations may be issued for the same violation. The amount of the penalty shall increase at the rate specified above.
(A) Payment of the penalty shall not excuse the failure to correct the violation nor shall it bar further enforcement action by the County.
(B) The penalties assessed shall be due to the County (or to the County’s designated collection/processing agent for the issuing County Department) within 30 calendar days from the date the administrative citation is issued.
(C) Except as provided below, any person who fails to pay to the County (or the County’s designated collection/processing agent for the issuing County Department) any penalty imposed pursuant to the provisions of this Chapter shall be liable for payment of the applicable late payment charges as follows:
(I) For payments received within 30 days after the due date, a late fee in the amount of 50 percent of the administrative fine is due.
(II) For payments received more than 30 days after the due date, a late fee in the amount of 50 percent of the original administrative fine is due, plus an additional 50 percent of the original administrative fine is due.
(D) The County may collect any past due administrative citation penalty or late payment charge by use of any available means, including without limitation, the recording of a notice of lien, describing the real property affected and the amount of the costs and administrative citation penalties claimed by the County with the Office of the County Recorder. The County may transmit notice of the award of administrative costs and administrative citation penalties, or notice of the judgment thereon arising from a collection or other legal action, to the Treasurer/Tax Collector who shall place the amount thereof on the assessment role as a special assessment to be paid with County taxes, unless sooner paid. The County may also recover its collection costs. A judgment or award of such costs, penalties or damages may be enforced as set forth above and may also be enforced in any other manner and under the same authority as provided by law.
(E) In any appeal hearing, the issuing County Department may also recover its administrative costs incurred in investigating, inspecting, and abating or remedying the violation of the E.H. Code, in attempting to collect any and all penalties and late fees, and in defending the citation at the appeal hearing.
(F) All administrative citation penalties collected pursuant to these provisions shall be deposited into specific funds maintained by or on behalf of the respective issuing County Departments for the purpose of funding their enforcement of this E.H. Code.
(f) Appeal of Administrative Citation.
(1) Notice of Appeal. Any responsible party in whose name an administrative citation has been issued may appeal the administrative citation by filing a written notice of appeal with the County Department that issued the administrative citation. If the issuing County Department has designated a processing agent, then the responsible party shall file their written notice of appeal with the issuing County Department’s designated processing agent. The written notice of appeal must be filed within 20 calendar days of the date the administrative citation was served in a manner set forth in Division (d) of this Section. The written notice of appeal shall be filed together with an advance deposit, consisting of a cashier's check, for the full amount of the penalty stated on the administrative citation. Failure to file a written notice of appeal and the full amount of the advance deposit within this time period shall constitute a waiver of the right to appeal the administrative citation.
(2) Advance Deposit Hardship Waiver. Any person intending to appeal an administrative citation and who is financially unable to make the advance deposit as required by this Section may file a written request for an advance deposit hardship waiver. The written request must be filed prior to filing the notice of appeal. The written request shall be filed with the issuing County Department. A County-approved form shall be made for this purpose. The person requesting the advance deposit hardship waiver shall indicate on the corresponding notice of appeal that an advance deposit hardship waiver request has been submitted.
(3) Advance Deposit Hardship Waiver Evaluation Procedures. Pending a decision by the County Department’s Director, or the Director’s designee to grant or deny the request, the advance deposit requirement shall be stayed and no administrative hearing shall be scheduled. The Director, or the Director’s designee, may waive the advance deposit requirement and issue a waiver only if the person requesting the waiver submits to the Director’s attention a sworn affidavit, together with any supporting documents or materials, reasonably demonstrating to the Director the person’s actual financial inability to submit the advance deposit in advance of the appeal hearing. Within ten days of receipt of the advance deposit hardship waiver request, the Director or the Director’s designee shall issue a written decision to grant or deny the request. If the request is denied the written decision shall explain the reason(s) for the denial of the waiver and shall state the due date for payment of the advance deposit. The written decision of the Director, or the Director’s designee, shall be sent by first class mail to the requesting party and shall be final. An administrative hearing shall not be scheduled until the advance deposit is received. If the request is denied and the advance deposit is not remitted within the time frame indicated in the written decision, the right to an appeal shall be deemed waived and payment of the administrative penalty shall become due immediately. The amount due shall be subject to all applicable late fees, which shall accrue from the original due date as indicated on the administrative citation.
(4) Contents of Notice of Appeal. The notice of appeal shall be submitted on County-approved forms and shall contain the following information:
(A) A brief statement setting forth the appealing person’s (hereinafter “appellant”) interest in the proceedings;
(B) A brief statement of the material facts which the appellant claims supports their contention that they did not commit, cause, or otherwise allow a violation of one or more provisions of this E.H. Code to occur, exist, or continue as alleged in the administrative citation at issue; or that they are not a responsible party as defined at § 33.0113(b)(9) of this Chapter.
(C) A mailing address at which the appellant agrees that notice of any additional proceeding, or an order relating to the imposition of an administrative citation penalty, shall be received and accepted by the appellant by first class mail.
(D) The notice of appeal must be signed and dated by the appellant.
(5) Administrative Hearing. The resolution of an appeal of an administrative citation issued under the authority of this Section shall be by an administrative hearing conducted according to the procedures set forth in this Section. The provisions of SBCC at Title 1: Government and Administration, Division 2: Departments, Offices, Commissions, Chapter 27: Administrative Hearings; County Hearing Officer, shall not apply. Upon the issuing County Department’s designated processing agent’s receipt of a timely, written notice of appeal from the appellant, an administrative hearing shall be held as follows:
(A) Hearing Date Set. The date of the hearing shall be set for a date that is no later than 60 days from the date the notice of appeal is received by the issuing County Department’s processing agent, unless otherwise stayed by the timely submission of an advance deposit hardship waiver, as indicated above.
(B) Notice of Hearing. Notice of the administrative hearing shall be given to the appellant at least ten calendar days before the hearing. The notice may be delivered to the appellant or mailed by first class mail to the address listed in the notice of appeal. Neither personal service nor service by certified mail shall be required.
(C) Hearing Officer. The administrative hearing shall be held before the Director of the issuing County Department or his or her designee. The hearing officer shall not be the Enforcement Officer who issued the administrative citation or their immediate supervisor. The Director of the issuing County Department, through the County’s contracting process, may contract with a qualified provider for administrative processing and collection services to provide hearing officers to conduct administrative hearings and process administrative citations, including the collection of payment of administrative citation penalties, administrative costs, and late charges.
The Board of Supervisors finds that contracting with a qualified provider for administrative hearing officers as set forth in this section is equivalent to the establishment of an office of County hearing officer as provided for and for the purpose intended by Government Code § 25845(i). The Board of Supervisors further finds that the decision of the hearing officer so appointed shall be deemed a recommendation adopted by the Board of Supervisors without further notice, and shall be deemed equivalent to and for the purpose intended by Government Code § 25845(h).
(D) Conduct of the Hearing.
(I) The Enforcement Officer who issued the administrative citation shall not be required to participate in the administrative hearing. The contents of the Enforcement Officer’s case file shall be admitted as prima facie evidence of the facts stated therein. The hearing officer shall not be limited by the technical or formal rules of evidence. The issuing County Department shall bear the burden of proof at the administrative hearing to establish the existence of a violation of this E.H. Code by a preponderance of the evidence. The hearing officer shall have the discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will cause an undue consumption of time. The Enforcement Officer establishing or confirming the occurrence or existence of a violation of this E.H. Code shall be deemed the complaining or reporting party. Personal or other identifying information regarding any other reporting party shall be deemed both irrelevant and subject to the federal and state constitutional rights of privacy; and, therefore, shall not be subject to review or disclosure.
(II) Provided that proper notice of the administrative hearing has been served as required by this or other applicable chapters of this E.H. Code, an appellant who fails to appear at the administrative hearing shall be deemed to have waived each of the following: the right to such hearing, the adjudication of issues presented at the hearing, and any and all rights afforded to the appellant under this E.H. Code. The appellant shall also be deemed to have failed to exhaust their administrative remedies.
(III) Notwithstanding subsection (II) above, if the appellant fails to appear at the administrative hearing, the hearing officer shall make their determination based on the information contained in the Enforcement Officer’s case file and the appellant’s notice of appeal.
(IV) The only evidence that shall be permitted at the administrative hearing and considered by the administrative hearing officer in reaching a decision, is that evidence which is relevant to the proof or disproof of:
(i) Ownership of the subject property, when applicable;
(ii) Whether a person noticed by the issuing County Department as a responsible party is, in fact, a responsible party;
(iii) Whether a violation of this E.H. Code occurred and/or continues to occur on the date or dates specified in the administrative citation;
(iv) Whether the responsible party has committed, caused, maintained, or permitted a violation of this E.H. Code on the date or dates specified on the administrative citation;
(v) The County’s administrative costs.
(g) Hearing Officer’s Ruling.
(1) After considering all the testimony and evidence submitted at the hearing, the hearing officer shall take the matter under submission. The hearing officer shall within a reasonable time issue a written ruling (“Administrative Citation Appeal Ruling” or “Ruling”) to uphold or cancel the administrative citation, as to each violation, and shall list in the ruling the reasons for that decision.
(2) If the hearing officer determines that the administrative citation should be upheld, then the amount of the penalties set forth in the citation shall not be reduced or waived for any reason. As to an administrative citation listing multiple violations, the amount of penalties for the violations so upheld shall not be reduced or waived for any reason. This Division (g) shall not apply to “warning only” administrative citations or to any administrative citation that indicates on its face that the penalty will be waived if the violation is corrected by the deadline compliance date and the violation is so corrected.
(3) If the hearing officer cancels the administrative citation, then no penalty shall be assessed and any penalty otherwise deposited with the issuing County Department, or its designated processing/collection agent, shall be promptly refunded to the appellant. As to an administrative citation listing multiple violations, then no penalties shall be assessed for the specific violations so cancelled and the amounts of such penalties otherwise deposited with the issuing County Department, or its designated processing/collection agent, shall be promptly refunded to the appellant.
(4) The appellant shall be served with a copy of the ruling by first class mail within a reasonable time. The ruling shall become final on the date of mailing.
(5) The ruling shall contain instructions for obtaining judicial review of the decision pursuant to California Government Code § 53069.4, as that section may be from time to time amended, or the successor provision thereto.
(6) If the administrative citation is upheld, the Hearing Officer shall also award the County its administrative costs. An itemized summary of these costs shall be presented at the hearing.
(h) Judicial Review of Administrative Hearing Officer’s Ruling.
(1) Notice of Appeal. Within 20 calendar days of the date of the delivery or mailing of the ruling to the appellant, the appellant (hereinafter “contestant”) may contest that decision by filing an appeal to be heard by the Superior Court, and paying to the court clerk the filing fee set forth at Government Code § 53069.4, or the successor provision thereto. The failure to file the written appeal and to pay the filing fee within this period shall constitute a waiver of the right to an appeal and the ruling shall be deemed confirmed. The contestant shall serve a copy of the notice of appeal in person or by first class mail upon the County Department that had issued the original administrative citation.
(2) Conduct of the Superior Court Appeal Hearing. The conduct of the appeal before the superior court is a subordinate judicial duty and may be performed by traffic trial commissioners and other subordinate judicial officers at the direction of the presiding judge at the Superior Court. The appeal shall be heard de novo, except that the contents of the issuing County Department’s file in the case shall be received in evidence. A copy of the document or instrument of the issuing County Department providing notice of the violation and imposition of the administrative penalty (i.e., the administrative citation) shall be admitted into evidence as prima facie evidence of the facts stated therein. The court shall request that the issuing department’s file in the case be forwarded to the court, to be received within 15 calendar days of the request.
(3) Judgment. The court shall retain the filing fee regardless of the outcome of the appeal. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the issuing County Department. Any deposit of the administrative penalty shall be refunded by the issuing County Department in accordance with the judgment of the court. If the administrative penalty has not been deposited and the decision of the court is against the contestant and in favor of the issuing County Department, the issuing County Department may proceed to collect the penalty and administrative costs pursuant to the procedures set forth in this E.H. Code, or in any other manner provided by law.
(i) Administrative Hearings for Permitted Facilities. Notwithstanding the foregoing, permitted facilities shall have administrative hearings conducted as set forth in § 33.0109 of this E.H. Code.
(Am. Ord. 3105, passed --1986; Am. Ord. 3585, passed --1994; Am. Ord. 4093, passed - -2009; Am. Ord. 4102, passed - -2010)