An ordinance of the City Council of the City of Weed amending the ordinance authorizing the issuance and resolution of administrative citations for municipal code violations

ORDINANCE NO. 451-2018

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WEED AMENDING THE ORDINANCE AUTHORIZING THE ISSUANCE AND RESOLUTION OF ADMINISTRATIVE CITATIONS FOR MUNICIPAL CODE VIOLATIONS

The City Council makes the following findings:

a. Criminal prosecutions in the courts for certain violations of the Municipal Code are expensive and time-consuming for the City staff.

b. Enforcement of Municipal Code violations can, in many instances, instead be achieved by administrative proceedings involving the imposition of a civil penalty.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF WEED DOES ORDAIN AS FOLLOWS:

1. Chapter 1 of Title 19, of the Weed Municipal Code, entitled "Administrative Citations", is hereby amended to read in its entirety as follows:

Chapter 1

Administrative Citations

Applicability.

Definitions.

Administrative Citation.

Continuing Violations; Cannabis Cultivation.

Amount of Fines.

Payment of the Fine.

Hearing Request.

Advance Deposit Hardship Waiver.

Hearing Officer.

Hearing Procedure.

Hearing Officer’s Decision.

Late Payment Charges.

Recovery of Administrative Citation Fines and Costs.

Right to Judicial Review.

Notices

19.10.010. Applicability.

A. Exclusive remedy. This Chapter provides for administrative citations, in addition to all other legal remedies, criminal or civil, which may be pursued by the City to address any violation of this Code.

B. Applicability. The administrative citations process set forth in this chapter applies to continuing violations of this Code that pertain to building, plumbing, electrical, or other similar structural or zoning issues, as well as to cannabis cultivation.

C. Discretionary Use. Use of this Chapter shall be at the sole discretion of the City, subject to section 19.01.010(B). The City reserves the option to issue and prosecute criminal citations for infractions or misdemeanor violations, in the discretion of the City Attorney.

19.01.020. Definitions. For purposes of this Chapter, the following definitions shall apply:

A. “Cannabis”, also sometimes commonly referred to as “marijuana”, means the plants Cannabis sativa Linnaeus, Cannabis indica, Cannabis ruderalis, and any other strain or varietal of the genus Cannabis that may exist of hereafter be discovered or developed that has psychoactive or medicinal purposes. "Cannabis" also means marijuana as defined by Section 11018 of the California Health &. Safety Code. For the purposes of this chapter, "Cannabis" does not mean or include industrial hemp as defined by Section 81000 of the California Food and Agriculture Code or Section 11018.5 of the California Health & Safety Code.

B. “Citation” means an administrative citation issued pursuant to this Chapter.

C. “Citee”1 means a person who has been issued an administrative citation.

D. “City” means the City of Weed.

E. “City Manager” means the City Manager of the City of Weed, or his or her designee.

F. “City Attorney” means the City Attorney of the City of Weed, or any deputy City Attorney.

G. “City Clerk” means the City Clerk or any deputy City Clerk of the City of Weed.

H. “City Council” means the City Council of the City of Weed.

I. “Code” means the Municipal Code of the City of Weed.

J. “Enforcement Officer” shall mean any City police officer, building official, or other employee or agent of the City with the authority to enforce any provision of this Code.

K. “Hearing Officer” means the person appointed by the City to conduct hearings under this Chapter pursuant to section 19.01.080 hereof.

19.01.030. Administrative Citation.

A. Issuance of Citation. Whenever an Enforcement Officer charged with the enforcement of any provision of this Code determines that a violation of that provision has occurred, the Enforcement Officer shall have the authority to issue a Citation to any person responsible for the violation.

B. Information in Citation. Each Citation shall contain the following information:

 1. The name and address of the Citee;

 2. The date of the violation or, if the date of the violation is unknown, then the date the violation is identified by the Enforcement Officer;

 3. The address or other description of the location where the violation occurred;

 4. The section of this Code violated and a description of the violation;

 5. The amount of the fine for the Code violation, if known by the Enforcement Officer;

 6. A description of the fine payment process, including a description of the time within which and the place to which the fine shall be paid;

 7. An order prohibiting the continuation or repeated occurrence of the Code violation described in the Citation;

 8. A description of the Citation review process, including the time within which the Citation may be contested and the place from which a request for hearing form to contest the Citation may be obtained; and

 9. The name and signature of the citing Enforcement Officer.

C. Delivery of Information. If any of the information required by this section is not included in the Citation, it may later be provided to the Citee by personal delivery or by mail to the Citee at the address stated in the Citee's driver's license or other personal identification, The issuance of the Citation shall not be considered to be complete and effective until all of the required information has been provided to the Citee, provided, however, that if the Citee fails pays the fine and/or contests the Citation without objecting to the omission, the defect shall be deemed to have been waived.

D. Cancellation of Citation. The Enforcement Officer may, at any time until issuance of a final decision on the merits by the Hearing Officer, withdraw or cancel a Citation which he or she has issued upon being informed of facts which would, in his or her judgment, make the issuance thereof unjust or otherwise inappropriate.

19.01.035. Continuing Violations. The administrative citations process set forth in this Chapter may, at City’s discretion, be applied to continuing violations of this Code that pertain to building, plumbing, electrical, or other similar structural or zoning issues, as well as to cannabis cultivation, on the following conditions:

A. Lawful Cannabis Cultivation. The administrative citations process set forth in this Chapter shall not be applied to Cannabis cultivation that is lawfully undertaken pursuant to Section 11362.1 of the Health & Safety Code.

B. Building, Plumbing, Electrical, and Structural and Zoning issues. A violation of plumbing, electrical, structural, or zoning issues, including illegal Cannabis cultivation, may be the subject of an administrative citation and the imposition of penalties under this Chapter only if the City first gives to the responsible party or parties, including the record owner and any persons in possession of the property, written notice of the violation and a reasonable period of time for the correction or remedy of the violation. Such period shall be appropriate for the particular violation but shall in any event not be less than twenty (20) calendar days. However, such prior notice and reasonable period of time for correction shall not be required if all of the following conditions are met: (1) a tenant is in possession of the property this is the subject of the administrative action; (2) The rental property owner or agent can provide evidence that the rental or lease agreement prohibits the cultivation of Cannabis; (3) The rental property owner or agent did not know the tenant was illegally cultivating Cannabis and no complaint, property inspection, or other information caused the rental property owner or agent to have actual notice of the illegal Cannabis cultivation.

19.01.040. Amount of Fines.

A. Schedule of Fines. The amounts of the fines for Code violations imposed pursuant to this Chapter shall be set forth in a Schedule of Fines established from time to time by resolution of the City Council.

B. Repetitious violations. The Schedule of Fines shall specify any increased fines for repeat violations of the same Code provision by the same person within thirty-six (36) months from the date of a previous Citation.

C. Late Charges. The Schedule of Fines shall specify the amount of any late payment charges imposed for the payment of a fine after its due date.

19.01.050 Payment of the Fine.

A. Due Date. The fine shall be paid to the City within thirty (30) days from the date of the issuance of the Citation.

B. Refund of Deposit. Any Citation fine paid pursuant to subsection A, above, and any deposit paid pursuant to Section 19.01.060, below, shall be refunded in accordance with Section 19.01.100(A) if it is determined by the Hearing Officer, after the hearing provided by Section 19.01.060, that the Citee was not responsible for the violation or that there was no violation as charged in the Citation. No interest on the refund shall be payable by the City to the Citee.

C. Continuing violations. Payment of a fine under this Chapter shall not excuse or discharge any continuation or repeated occurrence of the Code violation that is the subject of the Citation.

19.01.060 Hearing Request.

A. Right to Hearing. Any Citee may have a hearing on whether there was a violation of the Code, and/or whether he or she is the responsible party, by completing a Request for Hearing form and returning it to the City Clerk, or the City Clerk's designee, within thirty (30) days from the date of the issuance of the Citation, together with an advance deposit of the full amount of the fine as specified in the Citation. In lieu of such advance deposit, the Citee may submit to the City Clerk, or the City Clerk's designee, a written request for an Advance Deposit Hardship Waiver pursuant to Section 19.01.070, below.

B. Request for Hearing. A Request for Hearing form may be obtained from the department specified on the Citation or from the City Clerk, but its use shall be optional.

C. Notice of Hearing. The City Clerk shall notify the Citee requesting the hearing of the time and place set for the hearing by mailing the person a notice thereof at least ten (10) days prior to the date of the hearing.

D. Postponement of Hearing. Upon receipt of a written request from the Citee not less than three (3) days prior to the scheduled hearing, the City Clerk shall postpone the hearing one (1) time. Thereafter, postponements shall be granted only in the discretion of the Hearing Officer.

E. Consideration of Citation, etc. At the hearing, the Hearing Officer may consider the Citation and any other written or verbal statements. If, in addition to the Citation, the Enforcement Officer or any other City representative or witness on behalf of the City, or any witness on behalf of the Citee, submits a written report or other statement concerning the Citation to the Hearing Officer for consideration at the hearing, then a copy of such report or statement also shall be provided to the opposing party.

19.01.070 Advance Deposit Hardship Waiver.

A. Request for Waiver. Any Citee requesting who is financially unable to make the Advance Deposit of the fine as required in Section 19.01.060(A), above, may file a written Request for Advance Deposit Hardship Waiver. The City Clerk shall provide forms for such a Request, but their use shall be optional. The request shall be filed with the City Clerk within fifteen (15) days of the date of issuance of the Citation.

B. Information in Support of Waiver. The City Clerk may require the Citee making the Request for Waiver to provide the information described in subsection D, below. All financial information submitted by the Citee in support of a Request for Waiver shall be confidential and shall not be subject to disclosure to the public under the Public Records Act or any City ordinance. Upon request of the Citee after the final disposition of the Citation, such information shall be returned to the Citee.

C. Stay Pending Determination. The requirement to make the Advance Deposit as described in Section 19.01.06(A), and all other proceedings in the matter, shall be stayed until the Hearing Officer makes a determination as to whether to grant the Advance Deposit Hardship Waiver.

D. Grant of Waiver. The Hearing Officer may waive the requirement of an Advance Deposit set forth in Section 19.01.060(A) and issue the Advance Deposit Hardship Waiver only if the Citee submits to the City a sworn affidavit, together with any supporting documents or materials required by the City, demonstrating to the satisfaction of the Hearing Officer that paying the full amount of the Advance Deposit would impose a financial hardship on the Citee and effectively deprive the Citee of his or her right to due process. If the Citee’s financial condition warrants, the Hearing Officer shall, in lieu of issuing a Waiver, also have the discretion to reduce the amount of the Advance Deposit.

E. Denial of Waiver. If the Hearing Officer determines not to issue an Advance Deposit Hardship Waiver, the Citee shall remit the Advance Deposit to the City within ten (10) days after the Hearing Officer’s determination is mailed to the Citee.

F. Statement of Determination. The Hearing Officer shall issue a written statement of the reasons for his or her determination to issue or not issue the Advance Deposit Hardship Waiver, the written determination of the Hearing Officer shall be final.

19.01.080 Hearing Officer. The City Manager* shall designate the Hearing Officer for the hearing on any particular Citation. The Hearing Officer shall not be a City employee and shall be a licensed or retired attorney at law, arbitrator, or judge. Upon the authorization of the City Council, the City Manager, on behalf of the City, may from time to time enter into contracts with one or more qualified persons to serve as Hearing Officers for such compensation and on such other terms as the City Council may approve. In the absence of the Hearing Officer, the City Attorney of the City of Weed may act as Hearing Officer Pro Tempore to perform any function of the Hearing Officer except for the rendering of a Decision pursuant to section 19.1.100, below.

19.01.090 Hearing Procedure.

A. Advance Deposit. No hearing to contest a Citation shall be held unless the fine has been deposited in advance in accordance with Section 19.01.060 ox' an Advance Deposit Hardship Waiver has been issued in accordance with Section 19.01.070.

B. Timing of Hearing. A hearing before the Hearing Officer shall be scheduled for a date that is not more than sixty (60) days from the date that the request for hearing was filed, provided, however, that the hearing may be postponed as provided herein.

C. Notice of Hearing. Notice to the Citee of the hearing shall be mailed not less than ten (10) days prior to the hearing date.

D. Evidence. At the hearing, the Citee shall be given the opportunity to testify and to present evidence concerning the Citation.

E. Declarations. Any party or witness may submit a sworn statement in lieu of live testimony. The Hearing Officer shall give such statements such weight as he or she deems appropriate.

F. Views. The Hearing officer may, in his or her discretion, take a viewing of anything, with or without the presence of the Citee and/or the Enforcement Officer.

G. Telephonic Testimony. The Hearing officer may, in the presence of the parties to the hearing, take any testimony by telephone or other electronic means.

H. Rules of Evidence. The California Rules of Evidence shall not be observed or enforced at the hearing so as to exclude evidence. The Hearing officer may give hearsay and other evidence that might otherwise be excluded by the Rules such weight as he or she deems appropriate under the circumstances.

I. Burden of Proof. The City shall have the burden of proving that the Citee committed the violation for which he or she was cited by a preponderance of the evidence, i.e., that it is more likely than not that the Citee committed it.

J. Appearances. The failure of the Citee to appear at the hearing or offer evidence or argument in some other authorized manner shall be deemed a concession that the Citation was validly issued, that the fine may be imposed, and that the Advance Deposit may be forfeited, and shall constitute, in any subsequent court proceedings, a failure by the Citee to exhaust administrative remedies. The failure of the Enforcement Officer to attend the hearing or otherwise offer evidence or argument shall not necessarily result in the dismissal of the Citation if proof of the violation is deemed by the Hearing Officer to be otherwise adequate.

K. Administrative Citation as Evidence. The Citation and any additional report submitted by the Enforcement Officer shall constitute prima facie evidence of the respective facts contained in those documents.

L. Continuances. The Hearing Officer may continue the hearing and request additional information from the Enforcement Officer, the Citee, or any other source prior to issuing a written decision. Upon the receipt of a request from the Enforcement Officer.

19.01.100. Appeal. An appeal may be taken from the decision of the Hearing Officer pursuant to Government Code section 53069.4(b).

Section 2. If any provision of this ordinance is held to be unlawful or unenforceable, the offending provision shall be deemed stricken and the remainder shall be enforced.

Section 3. The city attorney is hereby authorized to prepare a summary of the ordinance as required by Government Code Section 36933.

Section 4. The city clerk is hereby authorized to publish the summary and post certified copies of the full text of the proposed and then adopted ordinances as required by Government Code Section 36933.

Section 5. This ordinance shall take effect and be in force thirty (30) days after its passage.

Section 6. This ordinance shall be published in the Weed Press, a newspaper of general circulation in the City of Weed, within fifteen (15) days after its passage.

I HEREBY CERTIFY the foregoing ordinance was introduced for first reading at a regular meeting of the City Council of the City of Weed held the 11th day of October 2018, and adopted by Council held the 11 day of October, 2018 by the following vote to wit:

AYES: Council Members Green, Greene, Hall, Palfini, and Tavalero

NOES: None

ABSENT: None

Attest: Deputy City Clerk

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