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23. Administrative Penalty Citations for Code Violations

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CHAPTER 23

ADMINISTRATIVE PENALTY CITATIONS FOR CODE VIOLATIONS

1-23-1: GENERAL INTENT
1-23-2: DEFINITIONS
1-23-3: AUTHORITY
1-23-4: PROCEDURES FOR ISSUANCE OF AN ADMINISTRATIVE CITATION
1-23-5: CONTENTS OF ADMINISTRATIVE CITATION
1-23-6: APPEAL OF ADMINISTRATIVE CITATION
1-23-7: PROCEDURES AND STANDARDS AT ADMINISTRATIVE CITATION APPEAL HEARINGS
1-23-8: DUTIES AND POWERS OF THE ADMINSTRATIVE HEARING OFFICER
1-23-9: FALSE INFORMATION OR REFUSAL PROHIBITED
1-23-10: FAILURE TO OBEY SUBPOENA 
1-23-11: FAILURE TO ATTEND ADMINISTRATIVE CITATION APPEAL HEARING
1-23-12: FAILURE TO COMPLY WITH ADMINISTRATIVE ENFORCEMENT ORDER
1-23-13: PENALTIES ASSESSED 
1-23-14: FAILURE TO PAY PENALTIES

1-23-1:  GENERAL INTENT:  (3338)

(A) The City Council finds that the enforcement of the Westminster Municipal Code is an important public service, and that code enforcement is vital to the protection of the public's health, safety, and quality of life.  The City Council further finds that a comprehensive code enforcement system that uses a combination of judicial and administrative remedies is critical to gain compliance with these ordinances.

(B) This Chapter provides for administrative penalties that may be imposed for violation of certain sections of the Westminster Municipal Code.  The section of the Westminster Municipal Code specifically affected is:

(1) Title VIII, Chapter 1 – Property Standards.

(C) The purpose of this Chapter is to encourage prompt compliance with the Code and prompt payment of any penalties.

1-23-2:  DEFINITIONS:  (3338 3495)

(A) The following words, terms and phrases, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise:

“Administrative Hearing Officer” shall mean a person appointed by the City Manager to hear and determine administrative citation appeals.  The Manager may appoint an employee of the city or another person possessing qualifications acceptable to the Manager as a hearing officer to hear and receive evidence and render a decision on the law and the facts.  The hearing officer may not have personally determined, in the first instance, the factual issues in controversy and may have no personal or financial interest in the outcome of the hearing.

“City” shall mean the City of Westminster.

“Code” shall mean those provisions of the Westminster Municipal Code enumerated in Section 1-23-1(B).

“Enforcement official” shall mean an employee or agent of the City authorized to enforce the ordinances of the City. 

“Manager” shall mean the City Manager or the Manager's designee.

“Responsible party” shall mean a person or entity who has violated the Code or, in the case of property violations, the responsible party may also be the property owner, the occupant, or an individual or an entity who, acting as an agent for or in any other legal capacity on behalf of the owner, has authority over property subject to an administrative citation under this Chapter.

1-23-3:  AUTHORITY:  (3338 3495)

(A) Any responsible party violating provisions of the Code may be issued an administrative citation by an enforcement official as provided in this Chapter.

(B) Notwithstanding any other provision of the Code, responsible parties cited under the provisions of this Chapter shall have only the appeal rights granted herein.

(C) Each day a violation exists or continues shall constitute a separate and distinct violation for which a separate administrative citation may be issued.  However, once an administrative citation has been issued for a violation of the Code, no additional administrative citation shall be issued for the same violation for ten (10) days or, if the responsible party appeals, until after the appeal has been heard and the responsible party has not complied with an administrative enforcement order of the Administrative Hearing Officer within ten (10) days of its issuance or such other time as the Administrative Hearing Officer has specified.

(D) A civil penalty assessed by means of an administrative citation may be collected by any means allowed by law.

(E) Enforcement actions are intended to be cumulative in nature. The City may pursue one (1) or more civil, criminal, and administrative actions, fees, fines, sentences, penalties, judgments, and remedies and may do so simultaneously or in succession.  The enactment of this administrative remedy shall in no way interfere with the City’s right to prosecute violations as criminal offenses.

1-23-4:  PROCEDURES FOR ISSUANCE OF AN ADMINISTRATIVE CITATION:  (3338)

(A) Whenever the enforcement official determines that a violation of the Code exists, the enforcement official shall give a notice of violation and order to correct (“Notice of Violation”) to the responsible party.  The Notice of Violation shall be in writing and shall describe with reasonable detail the violation so that the responsible party may properly correct it.  The Notice of Violation shall provide a reasonable time for correction given the circumstances of the violation, but in no case more than thirty (30) days.

(B) The Notice of Violation shall be served as follows:

(1) The enforcement official shall attempt to issue the Notice of Violation to the responsible party at the site of any violation. If the responsible party is not located, a copy of the Notice of Violation shall be left with any adult person residing or working at the site, or if no adult person is found at the site and the violation occurred on private property or on property for which the responsible party has responsibility, then a copy of the Notice of Violation shall be posted in a conspicuous place on the property of the responsible party.

(2) If the enforcement official is unable to issue the Notice of Violation to the responsible party personally, then the Notice of Violation shall be sent via first class mail to the responsible party.  In the case of violations occurring on private property where the owner of such property is a responsible party, the Notice of Violation shall be sent to the address shown in the county assessor records for the county in which the property is located.  In the case of violations occurring on property for which the responsible party is not the owner, the Notice of Violation shall be sent to the most recent mailing address available to the City for that responsible party.

(3) The Notice of Violation shall be deemed served on the date of receipt by the responsible party, if personally served, or upon the fifth (5th) day after mailing of the Notice of Violation.

(C) If after service of the Notice of Violation, the Code violation is not timely corrected, an enforcement official may issue an administrative citation to a responsible party.

(D) Service of administrative citation on a responsible party shall be made in the same manner as the Notice of Violation as described in subparagraph (B) herein, except that the enforcement official shall attempt to obtain the signature of the person receiving the administrative citation on the administrative citation.  If that person refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the administrative and subsequent proceedings.

1-23-5:  CONTENTS OF ADMINISTRATIVE CITATION:  (3338)

(A) The administrative citation shall state the date and location of the violations, and the approximate time the violations were observed.  Where applicable, the administrative citation shall identify the property in violation by address or legal description.

(B) The administrative citation shall state the Code sections violated and describe the violations.

(C) The administrative citation shall describe the action required to correct the violations.

(D) The administrative citation shall require the responsible party to correct the violations within a reasonable time given the circumstances, but in no case more than ten (10) days, and shall explain the consequences of failure to correct said violations.

(E) The administrative citation shall state the amount of penalty imposed for the violations.

(F) The administrative citation shall explain how the penalty shall be paid, the time period by which it shall be paid, and the consequences of failure to pay the penalty.

(G) The administrative citation shall identify the right and procedures for appealing the administrative citation.

(H) The administrative citation shall contain the signature of the enforcement official and the signature of the responsible party if it can be obtained.

1-23-6:  APPEAL OF ADMINISTRATIVE CITATION:  (3338 3495)

(A) A person served with an administrative citation may file a notice of appeal in person or postmarked within ten (10) calendar days from the service of the administrative citation.  Compliance with this time limit shall be a jurisdictional prerequisite to any appeal brought under this Chapter.  Failure to comply with such time limit shall be deemed to waive the right to a hearing and the adjudication of the issues related to the hearing, provided that proper notice of the administrative citation has been provided.

(B) The notice of appeal shall be made in writing, filed with the City department identified on the administrative citation, and contain the following information:

(1) The reasons the appellant believes the administrative citation is objectionable, incorrect or illegal;
          (2) The amount and type of claim or dispute involved, and the time during which it accrued or occurred;
(3) The name, address and telephone number of the appellant;
(4) If the appellant is to be represented by another person, the name, address and telephone number of the said representative; and 
(5) The signature of the appellant, legal representative and/or corporate agent.

(C) A processing fee of thirty-five dollars ($35) shall be paid by cash, check or certified funds simultaneously with the filing of the notice of appeal.  The processing fee is not refundable, except as provided in Section 1-23-8(L).

(D) If, in the opinion of the Manager, the appeal meets all of the requirements of subsections (A) – (C) of this Section, the Manager shall appoint an Administrative Hearing Officer and forward the notice of appeal to that person.

(E) If, in the opinion of the Manager, the appeal does not meet all of the requirements of subsections (A) – (C) of this Section, the Manager shall promptly return the appeal and notify the appellant of what requirements the appeal fails to meet. 

(F) As soon as practicable after receiving the written notice of appeal, the Administrative Hearing Officer appointed for that appeal shall schedule a date, time and location for the hearing, unless, if requested by the appellant and in the sole discretion of the Administrative Hearing Officer, it is submitted on written brief and supporting material. 

(G) Written notice of the date, time and location of the hearing shall be personally served upon or sent by first class mail to the responsible party at least ten (10) calendar days prior to the date of the hearing.

1-23-7:  PROCEDURES AND STANDARDS AT ADMINISTRATIVE CITATION APPEAL HEARINGS:  (3338 3495)

(A) The procedure and format of the administrative citation appeal hearing shall follow procedures as set forth herein.

(B) Administrative citation appeal hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply; however, an informal exchange of discovery may be required by the Administrative Hearing Officer or requested by any party.  The request must be in writing.  Failure to request discovery shall not be a basis for a continuance.

(C) The parties to an administrative citation appeal hearing shall be the responsible party and the City. 

(D) The Administrative Hearing Officer, at the request of any party to the hearing, may subpoena witnesses, documents and other evidence where the attendance of the witness or the admission of evidence is deemed necessary to decide the issues at the hearing.  All costs related to the subpoena, including witness fees in the amount of five dollars ($5) per witness, and mileage fees at the rate provided for witnesses by statute, shall be borne by the party requesting the subpoena.

(E) The City bears the burden of proof at an administrative citation appeal hearing to establish the existence of a violation of the Code.  In the case of an abatement hearing, the City bears the burden of proof to establish the existence of a public nuisance.

(F) The standard of proof to be used by the Administrative Hearing Officer in deciding the issues at an administrative citation appeal hearing is by a preponderance of the evidence.

(G) The Administrative Hearing Officer shall cause to be made a record of the hearing, either stenographically or by sound recording, and shall make available a transcript of the hearing to any person upon request and payment in advance of the estimated cost of the production of the transcript.

(H) The Administrative Hearing Officer shall render written decisions, accompanied by findings of fact and conclusions based thereon.

(I) All witnesses shall be sworn or shall affirm their testimony in the manner required in courts of record. 

1-23-8:  DUTIES AND POWERS OF THE ADMINISTRATIVE HEARING OFFICER:  (3338 3495)

(A) The Administrative Hearing Officer shall determine whether appeals of administrative citations are valid.  In doing so, the Administrative Hearing Officer shall determine whether the administrative citation under appeal was issued in compliance with the requirements of the City ordinances.  In each case, the Administrative Hearing Officer shall be charged with performing all functions relating to the final determination and order, and entertaining petitions or motions made in writing.  The Administrative Hearing Officer shall perform those duties and functions necessary and incidental to determining the matter, issuing subpoenas, authorizing depositions, administering oaths, hearing all evidence, examining all documents, ruling on evidentiary questions, and generally conducting the hearing as a quasi-judicial proceeding.

(B) In the discretion of the Administrative Hearing Officer, parties to the hearing may be required to file a pre-hearing statement before the case is set for hearing.  The pre-hearing statement may include: the issues raised by the appeal; agreed and disputed facts; copies of exhibits not previously included in the record; names of witnesses with a brief statement summarizing their testimony; an estimate of the time necessary to present a party's evidence and other matters as requested by the Administrative Hearing Officer.

(C) All hearings or, when an appeal is submitted for determination based on written argument and written facts and figures, all examination of such written petitions and papers shall be conducted by the Administrative Hearing Officer assigned to conduct the hearing or to examine the written material submitted.

(D) The admissibility of evidence shall be encouraged and the Administrative Hearing Officer shall consider all evidence of probative value.  The Administrative Hearing Officer may utilize its experience, technical competence, and specialized knowledge in the evaluation of evidence presented.

(E) Copies, photographs and photocopies may be admitted into evidence or substituted in evidence in place of original documents.

(F) Witnesses intended to give opinion testimony as experts must be qualified as such, and their qualifications should be submitted in advance to the Administrative Hearing Officer.

(G) Whenever it appears that an appeal is not properly before the Administrative Hearing Officer, or that the appellant for some other reason lacks jurisdiction or standing, the case may be dismissed on the motion of any party or the Administrative Hearing Officer.

(H) Mailings, notices, computations of time, time limitations, service and filings shall conform to the requirements of particular law or ordinance involved.

(I) The written decision of the Administrative Hearing Officer shall be known as an Administrative Enforcement Order.

(J) The parties may enter into a stipulated agreement which must be signed by both parties.  Upon approval and acceptance by the Administrative Hearing Officer, this agreement shall be entered as the Administrative Enforcement Order.  Entry of this agreement shall constitute a waiver of the right to a hearing and the right to appeal.

(K) The Administrative Hearing Officer may uphold the administrative citation and all penalties, or dismiss the administrative citation and all penalties, or may waive or conditionally reduce the penalties assessed by the administrative citation.  The Administrative Hearing Officer may also impose conditions and deadlines to correct the violation or require payment of any outstanding penalties. 

(L) If the Administrative Hearing Officer dismisses the administrative citation and all penalties due to the City’s failure to satisfy its obligations under this Chapter, the appellant’s thirty-five dollar ($35) processing fee shall be promptly refunded.

(M) The Administrative Hearing Officer has continuing jurisdiction over the subject matter of an administrative citation appeal hearing for the purposes of granting a continuance, ordering compliance by issuing an Administrative Enforcement Order, ensuring compliance of that Order, modifying an Administrative Enforcement Order, or, where extraordinary circumstances exist, granting a new hearing.  The Administrative Hearing Officer may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the Administrative Enforcement Order.

1-23-9:  FALSE INFORMATION OR REFUSAL PROHIBITED:  (3338)  It shall be unlawful for any person to willfully make a false statement or refuse to give his or her name or address with intent to deceive or interfere with the enforcement official when in the performance of official duties under the provisions of this Chapter.  Any person who willfully makes a false statement or refuses to give his or her name or address with intent to deceive or interfere with the enforcement official shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine or by confinement in jail or by both such fine and imprisonment as specified in Section 1-8-1 of this Code.

1-23-10:  FAILURE TO OBEY SUBPOENA:  (3338 3495)  It is unlawful for any person to refuse to obey a subpoena issued by the Administrative Hearing Officer.  Any person who fails to obey a subpoena shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine or by confinement in jail or by both such fine and imprisonment as specified in Section 1-8-1 of this Code.

1-23-11:  FAILURE TO ATTEND ADMINISTRATIVE CITATION APPEAL HEARING:  (3338) Any responsible party who fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the issues related to the hearing, provided that proper notice of the hearing has been provided.

1-23-12:  FAILURE TO COMPLY WITH ADMINISTRATIVE ENFORCEMENT ORDER:  (3338) It is unlawful for a responsible party to an administrative enforcement hearing who has been served with a copy of the final Administrative Enforcement Order to fail to comply with the Order.  Any person who fails to comply with a final Administrative Enforcement Order shall be guilty of a misdemeanor and upon conviction thereof shall be punished by a fine or by confinement in jail or by both such fine and imprisonment as specified in Section 1-8-1 of this Code.  Prosecution for failure to comply with a final Administrative Enforcement Order shall not commence until the time to appeal such Order has lapsed.

1-23-13:  PENALTIES ASSESSED: (3338)

(A) If the responsible party fails to correct the violation, subsequent administrative citations may be issued for violations of the same Code section.  The penalties assessed for each administrative citation issued for violations of the same Code section or sections shall be established by the Manager, but shall not exceed the following amounts, regardless of the number of violations per citation: 

(1) First administrative citation:  One hundred fifty dollars ($150.00).

(2) Second administrative citation:  Five hundred dollars ($500.00).

(3) Third or subsequent administrative citation:  Nine hundred and ninety-nine dollars ($999.00).

(B) Payment of the penalty shall not excuse the failure to correct the violations nor shall it bar further enforcement action by the City.

(C) All penalties assessed shall be payable to the City of Westminster.  Payment of the full amount of the penalty must be received in person or postmarked within ten (10) calendar days of the date of issuance of the administrative citation or Administrative Enforcement Order, or within the time specified on the Administrative Enforcement Order.

1-23-14:  FAILURE TO PAY PENALTIES:  (3338)

(A) The failure of any responsible party to pay the civil penalties assessed by an administrative citation or Administrative Enforcement Order within the time specified on the citation or Order, respectively, may result in the imposition of a late fee of twenty-five dollars ($25) and interest at a rate of ten percent (10%) per annum.

(B) In the event of failure to pay all penalties assessed, the Manager may refer the matter for collection by whatever means are available to the City.

(C) In the case of violations associated with specific real property, the City shall have as security for the collection of such late fees, penalties, interest, and administrative costs a lien upon such real property.  These amounts may be assessed and collected as specified in Title I, Chapter 31 of this Code.

(D) Any action or other process provided by law may be maintained by the City to recover or collect any amounts, including late fees, penalties, interest, and administrative costs, owing under this Chapter.

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