1 A3ec~Jo. ~ ~-iiiz (J~ Agenda Item 12 February 15, 2012 FileNo. it AGENDABILL Subject: Initiated by: Revisions to Chapters 1.12, 3.12, 8.20, and 8.32 of the Town of Mammoth Lakes Municipal Code Related to Code Enforcement Procedures and Penalties Mark Wardlaw, Community Development Director BACKG OUND: Town staff frequently needs to utilize code compliance procedures and methods for reasons including transient occupancy tax (TOT) enforcement, building code violations, life and safety issues, lighting violations, unpermitted signs, and many others. The Town does not currently have a dedicated code enforcement officer, so code enforcement activity is conducted by a variety of staff in the Community Development and Public Works Departments. Financial constraints placed on the Town have resulted in a loss of staff resources over time, which has resulted in a lack of institutional knowledge and a weakened code compliance program. The proposed ordinance changes, discussed below, will build on the focus and momentum of the TOT enforcement program and allow better code compliance throughout the community. The Town s existing civil penalty and administrative citation procedures in the Mammoth Lakes Municipal Code ( Code or MLMC ) Chapters 3.12 and 8.32, currently includes a number of ambiguities and potential issues. These ambiguities often make it difficult for staff to enforce the code, including issuing citations and assessing fines to violators. Furthermore, there are often special cases or types of violation that must be treated differently, making it difficult for staff to consistently implement and enforce the code. The Town Attorney has recommended a number of proposed changes to the Code that will make it easier for staff to process code violation complaints, to implement enforcement consistently, and to comply with State law. These changes are summarized below and are included in the attached draft ordinance.
2 ANALYSIS/DISCUSSION: Chapter 1.12 Proposed changes to MLMC Chapter 1.12 include reorganizing the chapter to include new and modified definitions for the following items: Infraction; Misdemeanor; Civil action; Administrative citation; and Attorneys fees and costs. These improved definitions will help to complement the other proposed changes to the code compliance processes. Chapter 8.20 The proposed revisions include amendments to three sections within this chapter: , , and These changes include new and improved procedures regarding lien procedures, special assessment procedures, and alternative remedies for collecting unpaid fees and fines. All of these provisions give the Town various options for collecting unpaid fees and fines, which is difficult to do under the current code requirements. Chapter 8.32 The Town s current Chapter 8.32 is confusing and difficult to implement because it currently contains two separate but related procedures, civil penalties d administrative citations, for imposing administrative fines and penalties. These procedures are difficult to follow and it is unclear which procedures should be used when. The Town Attorney has recommended addressing this by deleting Article II, Civil Penalties, which would result in only one administrative citation/fine procedure. This procedure would permit the Town to impose infraction- or misdemeanorlevel penalties and fines depending on the underlying offense. Under both the current and proposed ordinances, the infraction process includes a set fee structure for citations and allows a citation to be appealed and the appeal to be considered by a hearing officer. The hearing officer makes the final decision as to whether or not a violation of the code has occurred. Failure to correct a violation by the correction date will result in additional citations being issued and failure to pay a citation within the specified timeframe will result in late fees being assessed.
3 Other proposed revisions to this chapter would ensure this procedure is consistent with the Government Code, including that it limits progressive fines for infractions to violations within a one-year period, and would allow the Town to collect attorney s fees, if necessary. Chapter 3.12 The MLMC includes specific penalty provisions in Chapter 3.12 that apply only to violations of the TOT ordinance. First, any generic violation of Chapter 3.12 is generally an infraction unless, based on the gravity of the offense, the Town decides to prosecute it as a misdemeanor. Second, any generic violation of Chapter 3.12 is punishable as a civil penalty in the following amounts: (1) not less than $100 for the first violation in a two-year period, (2) not less than $200 for the second violation in a twoyear period and (3) not less than $500 for the third violation within any two-year period. Third, any operator that fails to register, provides a false or fraudulent return or otherwise provides false reports or claims to evade any TOT determination is guilty of a misdemeanor. Fourth, any operator who operates a transient occupancy facility without an approved tax certificate or without collecting and paying TOT is subject to a civil penalty of not less than $500 per day with enforcement costs. Failure to pay these penalties and enforcement costs is a misdemeanor. Chapter 3.12 does not contain any specific procedures for collecting these civil penalties which presumably can be collected through the Chapter 8.32 procedures. While the Town Attorney has advised staff that these penalties are legal, they are very confusing and add additional complexity to the enforcement process, as well as removing the Town s discretion to seek the amount of penalties. The current processes also would make it difficult for the Town to recover its enforcement costs unless operating a rental without paying TOT is classified as a public nuisance. The following revisions to the MLMC are proposed to help address the problems discussed above: Amend the progressive fine structure for generic violations of Chapter 3.12 to limit increased fines for violations within a one year period. Remove TOT-specific fine amounts of $500 per day for operator violations of Chapter 3.12 and allow the Town to decide the appropriate fine amount up to $1,000 per day. The fine amounts for these violations would be the default infraction amounts or up to $1,000 as a misdemeanor.
4 Clarifying that certain violations of Chapter 3.12 are public nuisances and amend the MLMC to permit the prevailing party in abatement actions to recover their attorneys fees. OPTIONS ANALYSIS: Option 1: Waive the first reading and introduce by title only the attached ordinance adopting amendments to Municipal Code Chapters 1.12, 3.12, 8.20, and 8.32 as proposed or with modifications. Option 2: Deny the proposed amendments to Municipal Code Chapters 1.12, 3.12, 8.20, and Option 1 would adopt Code changes that would make it easier and more efficient for staff to conduct code enforcement activity. Option 2 would not make any changes to the Code and staff would continue to conduct code enforcement activity based on the current Code requirements. VISION CONSIDERATIONS: The proposed ordinance changes would support the Town s Vision of being both a premier year-round resort community and a great place to live and work by making it easier for staff to address and enforce Code violations. FINANCIAL CONSIDERATIONS: There will be some one-time costs associated with preparation and implementation of the ordinance changes, including having the Town Attorney prepare a code compliance manual and train staff on the new procedures. The proposed costs will be covered by transfers or savings within the approved FY Community Development Department budget. Over time, it is presumed that there will be some revenues generated as a result of fees and fines being collected from code violators. These fees and fines will help to cover the cost of staff code compliance work efforts. STAFFING CONSIDERATIONS: Code compliance is currently conducted by a number of Community Development and Public Works staff and is currently included in the FY and draft FY budgets. However, staff is not currently
5 able to respond to all code complaints in a timely or effective manner. Some degree of code compliance is legally mandated, specifically responding to life safety issues. Other code compliance (lighting, signs, parking, etc.) is not legally mandated, but is important to helping maintain Mammoth Lakes status and character as a resort community. In order for staff to address all of these types of code compliance issues, more staff resources would need to be dedicated to code compliance efforts, which would take staff resources away from other work program items. However, that issue is not specifically related to this proposed ordinance change. Work on the ordinance changes to date has been conducted by the Town Attorney, with limited staff time spent on the effort. If adopted, the Town Attorney would assist with the preparation of a code compliance manual and training for all staff who work on code complaints. Adoption of the proposed changes should result in making it easier and more efficient for staff to conduct code compliance. Implementation of the proposed ordinance changes could be accommodated by existing staff without material delays in other projects. ENVIRONMENTAL CONSIDERATIONS: None. LEGAL CONSIDERATIONS: Adopting the proposed ordinance changes will result in code enforcement procedures that are easier for staff to enforce and more legally sound than the current procedures. RECOMMENDATION: Therefore, it is recommended that the Town Council: Choose Option 1: Waive the first reading and introduce by title only the attached ordinance adopting amendments to Municipal Code Chapters 1.12, 3.12, 8.20, and 8.32 as proposed. Attachments: 1. Proposed ordinance S
6 C*LIPO~NIA Town of Mammoth Lakes P.O. Box 1609 Mammoth Lakes, CA, Ph: (760) Fax: (760) NOTICE OF PUBLIC HEARING NOTICE IS HEREBY GWEN THAT THE MAMMOTH LAKES TOWN COUNCIL will hold a PUBLIC HEARING on Wednesday, February 15, 2012 at 6:00 p.m. at the Mammoth Lakes Town Council Chambers, Minaret Village Shopping Center, Suite Z, to consider the following: Amending Chapters 1.12, 3.12, 8.20, and 8.32 of the Town of Mammoth Lakes Municipal Code to clarify and amend civil penalties and administrative citations punishable as misdemeanors and infractions, the amount and structure of fines, definitions, and the collection of enforcement costs related to code enforcement procedures and penalties. All persons having an interest in the proposed application request may appear before the Town Council either in person or represented by counsel and present testimony or may, prior to said hearing, file with the Town Clerk written correspondence pertaining thereto. Pursuant to Government Code Section 65009(b), if this matter is subsequently challenged in court, the challenge may be limited to only those issues raised at the public hearing described in this notice or in written correspondence delivered to the Town of Mammoth Lakes at, or prior to, the public hearing. For additional information, or to obtain a copy of the staff report contact Mark Wardlaw, Community Development Director, at (760) Ext Facsimiles may be sent to (760) , or at: mwardlaw ci.mammoth-lakes. ca. us. BY ORDER OF THE MAMMOTH LAKES TOWN COUNCIL.~ - Dated: January 30, 2012 J.Ve Gray, Town C erk
7 ORDINANCE NO. 12- AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF MAMMOTH LAKES, COUNTY OF MONO, STATE OF CALIFORNIA, AMENDING CHAPTERS 1.12, 3.12, 8.20 AND 8.32 OF THE TOWN OF MAMMOTH LAKES MUNICIPAL CODE RELATED TO CODE ENFORCEMENT PROCEDURES AND PENALTIES WHEREAS, the Mammoth Lakes Town Council believes that enforcement of the Mammoth Lakes Municipal Code, other ordinances adopted by the Town, and conditions of entitlements and terms and conditions of Town agreements are matters of local concern and serve important public purposes; WHEREAS, the Town Council has determined that it is in the best interests of the Town to gain compliance with the Municipal Code and other codes in a timely and efficient manner; WHEREAS, the amendments to the Municipal Code adopted by this ordinance provide a standardized and expedited method to hold people responsible when they fail or refuse to comply with the provisions of the Municipal Code, other codes, or terms and conditions of agreements with the Town or entitlements in the Town; WHEREAS, the Town Council believes that this ordinance helps minimize the expense and delay otherwise created by pursuing responsible parties in the civil or criminal justice system; WHEREAS, Government Code section penalties, and forfeitures for violations of its ordinances; authorizes the Town to impose fines, WHEREAS, Government Code section authorizes the Town to make a violation of a Town ordinance either a misdemeanor or infraction; WHEREAS, the Town Council has determined that authorizing the Town Attorney to exercise his or her discretion in prosecuting violations of the Mammoth Lakes Municipal Code as either infractions or misdemeanors, in the interests of justice, results in the more effective and efficient administration of justice; WHEREAS, Government Code section authorizes the Town to issue administrative citations for violations of the Town s ordinances; and WHEREAS, the Town Council has determined that the issuance of administrative citations tends to benefit real property located within the Town by increasing the likelihood that public nuisances will be removed, thereby enhancing and protecting the health, safety and welfare of the community. NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF MAMMOTH LAKES, CALIFORNIA, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Recitals. The above recitals are all true and correct.
8 Section 2. Amendment. Chapter 1.12 of the Mammoth Lakes Municipal Code is hereby amended to read in full as follows as set forth in the attached Exhibit A, incorporated by this reference. Section 3. Amendment. Section of the Mammoth Lakes Municipal Code is hereby amended to read in full as follows: Violation Penalty. A. Any person, including any transient, who violates any of the provisions of this chapter shall be guilty of an infraction. Each such person shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person, and may be punished accordingly. The foregoing notwithstanding, in the discretion of the district attorney or the town attorney, upon a showing of gravity of offense, any violation of any provision of this chapter may be prosecuted as a misdemeanor. B. Other than delinquent tax remittal addressed in sections through , any person, including any transient, who violates any provision of this chapter may be subject to administrative fines as set forth in chapter Any violation of any provision of this chapter which occurs on more than one day shall constitute a separate violation for each day or portion thereof during which such violation occurs. C. 1. Notwithstanding subsection A of this section, any operator or other person who fails or refuses to register as required in this chapter, or to furnish any return required to be made, or who fails or refuses to furnish a supplemental return or other data required by the tax collector, or who renders a false or fraudulent return or claim, is guilty of a misdemeanor. 2. Any person required to make, render, sign or verify any report or claim who makes any false or fraudulent report or claim with intent to defeat or evade the determination of any amount due as required by this chapter to be made is guilty of a misdemeanor. D. Any transient occupancy facility operated without an approved transient registration certificate or without collecting and paying transient occupancy taxes to the town as required in this chapter is a public nuisance and may be abated as provided for in Chapter Section 4. Amendment. Section of the Mammoth Lakes Municipal Code is hereby amended to read in full as follows: Lien procedure.
9 A. The code enforcement officer or other authorized town official shall keep an itemized report of the costs incurred by the town in the abatement of any public nuisance, including any attorneys fees pursuant to section , in addition to any accrued fees and penalties due. The property owner shall be invoiced for the total. The property owner may appeal the amount of any invoice to the Town Council, which shall hear and consider such appeal in the same manner as an appeal of a hearing on the existence of the nuisance. Once the invoice amount is finalized, payment shall be remitted promptly. If payment is not received, the itemized report shall be submitted in writing to the town clerk. Any such report may include the abatement costs, fees and penalties for any number of properties and abatements, whether or not such properties are contiguous. B. Upon receipt of the itemized report, the town clerk, or his or her designee, shall serve notice of the lien in the same manner as summons in a civil action in accordance with Code of Civil Procedure section et seq. If the owner of record, after diligent search cannot be found, the notice may be served by posting a copy thereof in a conspicuous place upon the property for a period of ten (10) days and publication thereof in a newspaper of general circulation in the Town. The period of notice commences upon the first day of publication and terminates at the end of the tenth day, including therein the first day. Publication shall be made on each day on which the newspaper is published during the ten (10) day period. C. After notice has been served, the lien shall be recorded in the Mono County recorder s office and, from the date of recording, shall have the force, effect and priority of a judgment lien. D. The lien shall identify: 1. The amount of the lien; 2. The town as the agency on whose behalf the lien is imposed; 3. The date of the abatement order or citation; 4. The Street address, legal description and assessor s parcel number of the parcel on which the lien is imposed; and 5. The name and address of the recorded owner of the parcel. E. In the event that the lien is discharged, released or satisfied, through either payment or foreclosure, notice of the discharge containing the information specified in subsection D shall be recorded by the town clerk. F. A lien may be foreclosed by an action brought by the town for a money judgment.
10 G. The town may recover from the property owner any costs incurred in the processing and recording of the lien and providing notice to the property owner as part of its foreclosure action to enforce the lien. Section 5. Amendment. Section of the Mammoth Lakes Municipal Code is hereby amended to read in full as follows: Special assessment procedure. A. As an alternative to the procedures set forth in section , the code enforcement officer or other authorized town official shall keep an itemized report of the costs incurred by the town in the abatement of any public nuisance, including any attorneys fees pursuant to section , in addition to any accrued fees and penalties due. The property owner shall be invoiced for the total. The property owner may appeal the amount of any invoice to the Town Council, which shall hear and consider such appeal in the same manner as an appeal of a hearing on the existence of the nuisance. Once the invoice amount is finalized, payment shall be remitted promptly. Any such report may include the abatement costs, fees and penalties for any number of properties and abatements, whether or not such properties are contiguous. B. Upon receipt of the itemized report, the town clerk shall serve notice by certified mail, to the property owner, if the property owner s identity can be determined from the county assessor s or county recorder s records. The notice shall be given at the time of imposing the assessment and shall specify that the property may be sold after three (3) years by the tax collector for unpaid delinquent assessments. The tax collector s power of sale shall not be affected by the failure of the property owner to receive notice. The assessment may be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as provided for ordinary municipal taxes. All laws applicable to the levy, collection and enforcement of municipal taxes shall be applicable to the special assessment. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. C. Subject to the requirements applicable to the sale of property pursuant to Section 3691 of the Revenue and Taxation Code, the town may conduct a sale of vacant residential developed property for which the payment of that assessment is delinquent. D. Notices or instruments relating to the special assessment shall be entitled to recordation.
11 Section 6. Amendment. Section of the Mammoth Lakes Municipal Code is hereby amended to read in full as follows: Alternative remedies. A. Nothing in this chapter shall be deemed to supersede any other remedies in this code nor to prevent the town from commencing civil or criminal proceedings to abate a public nuisance under applicable state or federal law, or to proceed with other authorized nonjudicial nuisance abatement procedures as an alternative to the proceedings set forth in this chapter. B. Moreover, upon entry of a second or subsequent civil or criminal judgment within a two-year period finding that an owner of property is responsible for a condition that may be abated in accordance with the provisions of this chapter, except for conditions abated pursuant to section of the Health & Safety Code, relating to abandoned buildings, the court may order the owner to pay treble the costs of the abatement, as authorized by Government Code section Costs of abatement shall include, without limitation by reason of enumeration, all administrative costs of the town. Section 7. Amendment. Article I of Chapter 8.32 of the Mammoth Lakes Municipal Code is hereby amended to read in full as set forth in the attached Exhibit B, incorporated by this reference. Section 8. Repeal. Article II of Chapter 8.32 of the Mammoth Lakes Municipal Code is hereby repealed and of no further force or effect, and existing Article III is hereby redesignated as Article II without renumbering the sections thereof. Section 9. Severability. If any section, subsection, subdivision, paragraph, sentence, clause or phrase in this Ordinance, or any part thereof, is held invalid or unconstitutional, then such decision shall not affect the validity of the remaining sections or portions of this Ordinance or part thereof. The Town Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phrase of this Ordinance irrespective of the fact that any one or more sections, subdivisions, paragraphs, sentences, clauses or phrases may be declared invalid or unconstitutional. Section 10. Effective Date. The Mayor shall sign and the Town Clerk shall certify passage and adoption of this Ordinance, and shall cause the same to be published and posted pursuant to the provisions of law in this regard, and this Ordinance shall take effect thirty days after its final passage.
12 ADOPTED, SIGNED and APPROVED this day of, Jo Bacon, Mayor ATTEST: Jamie Gray, Town Clerk
13 EXHIBIT A CHAPTER GENERAL PENALTY Sections: Violations a misdemeanor or infraction Infraction Misdemeanor Civil action Administrative citation Attorneys fees and costs Violations a misdemeanor or infraction. Whenever in this code any act or omission is made unlawful, it shall include causing, allowing, permitting, aiding, abetting, suffering or concealing the fact of such act or omission. No person shall violate any provision or fail to comply with any of the requirements of this code, or other codes adopted by the town. Every such person shall be guilty of a separate and distinct offense for each and every day, or any portion thereof, of which any violation of any provision of this code is committed, continued or permitted by such person, and shall be punishable accordingly. Every act prohibited, declared unlawful or declared substandard or unsafe and every failure to perform an act made mandatory shall constitute either a misdemeanor or an infraction, at the discretion of the town attorney or district attorney, as applicable. Except as expressly provided otherwise in this code or other applicable law, no act or omission constituting a violation of this code shall be made lawful or otherwise permitted due to the town s intentional or unintentional failure to prosecute, cite or otherwise address such violation Infraction. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this code, including its adopted codes, may be prosecuted for an infraction. Any person convicted of an infraction under the provisions of this code shall be punished according to the fine schedule listed below: A. One hundred dollars ($100.00) for a first violation; B. Two hundred dollars ($200.00) for a second violation of the same provision (other than a building and safety code provision) within one year, and five hundred dollars ($500.00) for a violation of a building and safety code provision; C. Five hundred dollars ($500.00) for each additional violation of the same provision (other than a building and safety code provision) within one year, and one thousand dollars ($1,000.00) for a violation of a building and safety code provision Misdemeanor. 13
14 A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of this code, including its adopted codes, may be prosecuted for a misdemeanor. B. Any person convicted of a misdemeanor under the provisions of this code shall be punished by a fine not exceeding one thousand dollars ($ ), imprisonment for a term not exceeding six (6) months or both. C. In the event a person is imprisoned for violation of any of the provisions of this code, such person may be required to labor on public property or works within the town Civil action. The town attorney, by and at the request of the town council or town staff, 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, including its adopted codes, as provided by law. The town attorney, by and at the request of the town council or town staff, may institute an action in any court of competent jurisdiction to collect a civil debt owing to the town Administrative citation. As set forth in chapter 8.32, the town may issue an administrative citation for any violation of this code Attorneys fees and costs. A. In any action, administrative proceeding or special proceeding commenced by the town to abate a public nuisance, to enjoin violation of any provision of this code, including its adopted codes, or to collect a civil debt owing to the town, if the town elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys fees, the prevailing party shall be entitled to recover all costs incurred therein, including reasonable attorneys fees and costs of suit. In no action, administrative proceeding or special proceeding shall an award of attorneys fees to a prevailing party exceed the amount of reasonable attorneys fees incurred by the town in the action or proceeding. B. The town shall be considered a prevailing party entitled to attorneys fees under subsection A when it can demonstrate that: 1. Its lawsuit was the catalyst motivating the defendant to provide the primary relief sought; 2. The lawsuit was meritorious and achieved its result by threat of victory; and 3. The town reasonably attempted to settle the litigation before filing the lawsuit.
15 EXHIBIT B Article I - Administrative Citations Sections: Legislative findings and statement of purpose Definitions Authority Service procedures Contents of notice Satisfaction of administrative citation Appeal of administrative citation Advance deposit hardship waiver Hearing officer s decision Failure to pay fines Notices. Sections: Legislative findings and statement of purpose. The town council hereby finds that there is a need for an alternative method of code enforcement to the traditional civil, criminal or administrative abatement actions, to effect compliance with the Mammoth Lakes Municipal Code, other codes adopted by the town, and applicable state codes. The town council further finds that an appropriate alternative method of enforcement for code violations is an administrative citation program as authorized by Government Code section The procedures established in this chapter shall be in addition to criminal, civil or administrative abatement or any other legal remedy established by law, which may be pursued to address violations of the Mammoth Lakes Municipal Code, its adopted codes or applicable state codes. Use of this chapter shall be at the sole discretion of the town Definitions. A. Administrative citation shall mean the written notice provided to a responsible person to inform that person of a violation of this code, its adopted codes or applicable state codes. B. Enforcement officer shall mean any officer or employee, including his or her designee, with the authority to enforce this code, its adopted codes or applicable state codes. C. Hearing officer shall mean the hearing officer or officers appointed by the town manager. The hearing officer(s) may be a town employee, but in that event the hearing officer(s) shall not have had any responsibility for the investigation, prosecution or enforcement of this chapter and shall not have had any personal involvement in the proceeding to be heard within the past twelve months or possess any disqualifying Ic
16 interest in the outcome of the proceeding. In the event more than one person is appointed hearing officer for a proceeding, all decisions shall be made by a majority vote of all hearing officers. D. Non-emergency health or safety violation shall mean a violation of any building, plumbing, electrical or other similar structural or zoning ordinance which does not create an immediate danger to health or safety. E. Responsible person shall mean either of the following: 1. Any individual or legal entity who is the owner, tenant, co-tenant, lessee, sublessee, occupant or other person with any right to possession of the real property, owner or authorized agent of any business, company or entity, or the parent or the legal guardian of any person under the age of eighteen (18) years, who causes, permits or maintains a violation of this code, its adopted codes or applicable state codes. 2. Any individual, legal entity or the parent or the legal guardian of any person under the age of eighteen (18) years, who causes, permits or maintains a violation of this code, its adopted codes or applicable state codes Authority. A. Any responsible person violating any provision of this code, its adopted codes or applicable state codes 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 this code, other codes adopted by the town council, applicable state codes, or failure to comply with any condition imposed by any entitlement, permit, agreement or environmental document issued or approved under the provisions of this code. B. Each and every day or portion thereof that a violation described in subsection A exists constitutes a separate and distinct offense. C. A civil fine shall be assessed by means of an administrative citation issued by an enforcement officer and shall be payable directly to the town. D. Except where otherwise provided in this code, fines for offenses, which are punishable as infractions, shall be assessed in the amounts specified by resolution of the town council, or where no amount is specified, fines shall be assessed in an amount not exceeding: 1. One hundred dollars ($100.00) for a first violation; 2. Two hundred dollars ($200.00) for a second violation of the same provision (other than a building and safety code provision) within one year, and five hundred dollars ($500.00) for a violation of a building and safety code provision; 3. Five hundred dollars ($500.00) for each additional violation of the same provision (other than a building and safety code provision) within one year, and one 10
17 thousand dollars ($1,000.00) for a violation of a building and safety code provision. E. Except where otherwise provided in this code, fines for offenses, which are punishable as misdemeanors, shall be assessed in the amounts specified by resolution of the town council, or where no amount is specified, fines shall be assessed in an amount not exceeding one thousand dollars ($1,000) per violation Service procedures. An administrative citation on a form approved by the town manager shall be issued to the responsible person by an enforcement officer for violations of this code, other codes adopted by the town council, or applicable state codes in the following manner: A. Personal service. The enforcement officer shall attempt to locate and personally serve the responsible person and, if possible, obtain the signature of the responsible person on the administrative citation. if the served responsible person refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative citation or of subsequent proceedings. B. Service of citation by mail. 1. If the enforcement officer is unable to locate the responsible person, the administrative citation shall be mailed to the responsible person by certified mail, postage prepaid with a return receipt requested. Simultaneously, the administrative citation may be sent by first class mail. 2. Service by mail shall be sent to the responsible person s address as shown on public records or as known to the town. if the administrative citation is sent by certified mail and returned unsigned, then service shall be deemed effective by first class mail, provided the administrative citation sent by the first class mail is not returned. 3.~ (3)days following deposit of such citation in the U.S. mail. C. Service of citation by posting notice. 1. if the enforcement officer does not succeed in serving the responsible person personally or by certified or first class mail, the enforcement officer shall post the administrative citation in a conspicuous location on any real property within the town in which the town has knowledge that the responsible person has a legal interest. 2. Posting of the administrative citation shall be deemed effective service as of the date that the citation is actually posted. 7
18 Contents of notice. Each administrative citation shall contain the following information: A. Date, approximate time and address or definite description of the location where the violation(s) was observed; B. The code section(s) or condition(s) violated and a description of the violation(s); C. A description of the action required to correct the violation(s); D. An order to the responsible person to correct the violation(s) by a correction date and an explanation of the consequences of failure to correct the violation(s); E. The amount of the fine for the violation(s); F. An explanation of how the fine shall be paid, the deadline by which it shall be paid, and the place to which the fine shall be paid; G. An order prohibiting the continuation or repeated occurrence of the code violation(s) described in the administrative citation; H. Identification of rights of appeal, including the time within which the administrative citation may be contested and the place to obtain a Notice of Appeal and Request for Hearing form to contest the administrative citation; and I. The name and signature of the enforcement officer and, if possible, the signature of the responsible person Satisfaction of administrative citation. A. Upon receipt of an administrative citation, the responsible person shall do the following: 1. Remedy the violation(s) if the violation(s) is of such a nature that it can be remedied. If a non-emergency health or safety violation(s) is corrected before the correction date provided on the administrative citation, no fine shall be imposed. 2. Pay the fine to the town within fifteen (15) calendar days from the correction date on the administrative citation. 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 town. B. If the responsible person fails to correct the violation(s) set forth in the administrative citation, 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 the rate specified in Section , if applicable Appeal of administrative citation.
19 A. Any recipient of an administrative citation may contest that there was a violation of this code or that he or she is the responsible person by completing a Notice of Appeal and Request for Hearing form and filing it with the town clerk within ten (10) calendar days from the date of issuance of the administration citation, together with an advance deposit of the total amount of the fine, or the timely filing of a Request for an Advance Deposit Hardship Waiver form pursuant to Section 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. In addition to the requirements listed in subsection A, any appeal of the administrative citation shall include a detailed written explanation as to the grounds for appeal of the administrative citation. Any appeal shall be limited to such written grounds. C. Appeals of administrative citations shall be conducted pursuant to the following procedures: 1. A hearing shall be set for a date that is not less than fifteen (15) days and not more than ninety (90) days from the date that the request for hearing is filed in accordance with the provisions of this chapter. No additional fines for the underlying alleged violation shall accrue during the pendency of the hearing. 2. At the hearing, the party contesting the administrative citation shall be given the opportunity to testify and to present evidence concerning the administrative citation. 3. The administrative citation and any additional report submitted by the enforcement officer shall constitute prima facie evidence of the respective facts contained in those documents. 4. The hearing officer may continue the hearing and request additional information from the enforcement officer or the recipient of the citation prior to issuing a written decision Advance deposit hardship waiver. A. Any person who intends to request a hearing to contest an administrative citation and who is financially unable to make the advance deposit of the fine may file a Request for an Advance Deposit Hardship Waiver form, available from the town clerk. B. The request shall be filed with the town clerk within five (5) days of the date of the issuance of the administrative citation. C. The requirement of depositing the full amount of the fine as described in Section shall be stayed unless or until the town manager makes a determination not to issue the advance deposit hardship waiver. jc~
20 D. The town manager may waive the requirement for advance deposit only if the cited party submits to the town manager a declaration under penalty of perjury supported by evidence that shows to the town manager s reasonable satisfaction that such party is financially unable to deposit the total amount of the fine in advance of the hearing. E. if the town manager determines not to issue an advance deposit hardship waiver, the cited party shall remit the deposit to the town within five (5) days of the date of that decision or fifteen (15) days from the date of issuance of the administrative citation, whichever is later. F. The town manager shall list his/her reasons for granting or not granting an advance deposit hardship waiver in writing and serve it on the cited party. The town manager s decision is final Hearing officer s decision. A. The hearing officer shall make his or her decision within a reasonable time after the hearing, If the hearing officer determines that the administrative citation should be upheld, then the town shall retain the fine amount on deposit with the town. B. if the hearing officer determines that the administrative citation should be upheld, and the fine has not been deposited pursuant to an advance deposit hardship waiver, the hearing officer shall set a fine payment schedule for the payment of the fine and shall remind the violator of his or her obligation to correct the violation as applicable. As appropriate, the hearing officer may prescribe a reasonable time for the violator to cure the violation. C. If the hearing officer determines that the administrative citation should be canceled and the fine was deposited with the town, then the town shall promptly refund the amount of the deposited fine Failure to pay fines. A. The failure of any person to pay the civil fines assessed by an administrative citation within the time specified on the citation may result in the matter being referred to the town attorney to file a claim with the applicable court. Alternatively, the town may pursue any other legal remedy to collect the civil fines, including, but not limited to, a lien pursuant to section or special assessment pursuant to section B. Any person who fails to pay to the town any fine imposed pursuant to this chapter on or before the date that fine is due also shall be liable for the payment of a onetime late payment charge in the amount of twenty-five dollars ($25.00), plus interest at the maximum rate permitted by law. The late charge and interest imposed by this subsection shall apply to each individual fine for any violation of this code. C. The payment of any administrative fine shall not excuse or otherwise provide any defense to the continued violation of any provision of this code Notices.
21 A. The administrative citation and all notices to be given by this chapter shall be served on the responsible person in accordance with the provisions of Section B. Failure to receive actual notice specified in this chapter does not affect the validity of proceedings conducted hereunder \
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