Ord 557ORDINANCE NO. 557
AN ORDINANCE OF THE CITY OF POWAY, CALIFORNIA,
AMENDING CHAPTER 1.08 AND ADDING CHAPTER 1.10
OF THE POWAY MUNICIPAL CODE PERTAINING TO
ADMINISTRATIVE CITATIONS AND PENALTIES
WHEREAS, existing remedies for enforcement of the Poway Municipal Code are
inadequate; and
WHEREAS, more effective remedies are needed in order to better enforce the
conditions of approval of permits, entitlements, and environmental approvals granted by
the City; and
WHEREAS, such remedies should include fines of those persons who violate
ordinances or conditions of approval in order to encourage compliance and shift from
the taxpayers to such violators all or a part of the cost of enforcement; and
WHEREAS, the police power granted to cities by the California Constitution
authorizes cities to adopt, approve, and enforce by any reasonable means ordinances,
permits, entitlements, environmental conditions, and the terms of City agreements
enacted pursuant to the police power that are necessary to protect the health, safety,
and welfare of the community; and
WHEREAS, administrative citations and penalties are a reasonable means by
which to enforce such requirements; and
WHEREAS, the legislature has provided in the Government Code an
independent statutory basis for administrative citations and penalties for the
enforcement of Municipal Code requirements.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY,
CALIFORNIA, DOES ORDAIN AS FOLLOWS:
Section 1. Amendment of Poway Municipal Code Section 1.08.010.
Subsection G is hereby added to Section 1.08.010 of the Poway Municipal Code to read
as follows:
G. Administrative Citation. Upon a finding by the city official vested with the
authority to enforce the various provisions of this Code that a violation exists, he or she
may issue an administrative citation under the provisions of Chapter 1.10.
Section 2: Addition of Poway Municipal Code Chapter 1.10.
Chapter 1.10 is hereby added to the Poway Municipal Code to read as follows:
Sections:
1.10.010
1.10.020
1.10.030
1.10.040
1.10.050
1.10.060
1.10.070
1.10.080
1.10.090
1.10.100
1.10.110
1.10.120
1.10.130
1.10.140
1.10.150
Ordinance No. 557
Page 2
CHAPTER 1.10
ADMINISTRATIVE CITATIONS AND PENALTIES
Legislative Findings and Statement of Purpose
Definitions
Issuance of Administrative Citation
Service Procedures
Contents of Citation
Satisfaction of Administrative Citation
Appeal of Administrative Citation
Hearing Officer
Hearing Procedure
Hearing Officer's Decision
Failure to Pay Fines
Reduction of Cumulative Fines
Late Payment Charges
Right to Judicial Review
Procedural Compliance
1.10.010 Legislative Findings and Statement of Purpose.
A. The City Council hereby finds that there is a need for an alternative
method of enforcement of the Municipal Code, conditions imposed on permits,
entitlements, and CEQA reviews, and the terms of City agreements made
pursuant to the City's constitutional police power. The City Council further finds
that an appropriate method of enforcement is the imposition of administrative
penalties as independently authorized by both California Constitution Article XI,
Section 7, and Government Code Section 53069.4.
B. The procedures established in this Chapter shall be in addition to
criminal, civil or any other legal remedy established by law for violation of the
Municipal Code or permit and entitlement conditions. Issuance of a citation
pursuant to this Chapter shall not preclude enforcement by a separate criminal or
civil action.
C. The City Council hereby finds and determines that enforcement of
the Poway Municipal Code, other ordinances adopted by the City, conditions of
approval of entitlements, permits, and CEQA reviews, and terms and conditions
of City agreements made pursuant to the police power is a matter of public
health, safety and welfare and serves important public purposes. The City of
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Poway adopts this administrative penalties program in order to achieve the
following goals:
To protect the public health, safety and welfare of the citizens of the
2. To gain compliance with the Municipal Code, ordinances,
agreements, and regulations of the City enacted pursuant to its police powers,
and the conditions of approval of permits, entitlements, and CEQ^ reviews
granted by the City pursuant to the City's police powers in a timely and efficient
manner;
3. To provide for an administrative process to appeal the imposition of
administrative citations and fines;
4. To provide a method to hold parties responsible when they fail or
refuse to comply with the provisions of the Municipal Code, ordinances,
agreements, or terms and conditions of entitlements or permits enacted or
approved pursuant to the police power;
5. To avoid or minimize the expense and delay of enforcement in the
civil or criminal justice system.
1.10.020 Definitions.
A. "Enforcement officef' shall mean any officer or employee of the City
with the authority to enforce the Poway Municipal Code, including but not limited
to a code compliance officer, inspector, and the fire marshal.
B. "Responsible person" shall mean any individual who is the owner or
occupant of real property, the holder or the agent of the holder of any permit,
entitlement, or review, or the party or agent of a party to any agreement covered
by this Chapter; the owner or authorized agent of any business, company, or
entity subject to this Chapter; or the parent or legal guardian of any such person
under the age of eighteen (18) years; who violates any ordinance, regulation,
permit, entitlement, review, or agreement described in section 1.10.030 below.
1.10.030 Issuance of Administrative Citation.
A. Any person who violates any prevision of the Poway Municipal
Code or regulation of the City, any condition of approval of a permit or
entitlement, any condition of an environmental review, or any term or condition of
any agreement with the City made pursuant to the police power may be issued
an administrative citation by an enforcement officer as provided in this Chapter.
^ violation of the Poway Municipal Code includes, but is not limited to, all
violations of that Code, the Uniform Codes adopted by the City Council, and all
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uncodified ordinances. A violation of a condition of approval of a permit or
entitlement, includes, but is not limited to, a conditional use permit, minor
conditional use permit, temporary use permit, development review, sign permit,
variance, specific plan, parcel map, subdivision map, building or grading permit,
any plan, permit or best management practice authorized, issued or required by
Chapter 13.09 of the Poway Municipal Code, any encroachment or right of way
permit, any license or permit issued pursuant to Title 5 of the Poway Municipal
Code, any drug paraphernalia license issued pursuant to Chapter 9.08 of the
Poway Municipal Code, and any adult oriented business regulatory permit
required by Chapter 17.38 of the Poway Municipal Code. A violation of a
condition of approval of an environmental review includes, but is not limited to,
any environmental impact report, mitigated negative declaration, negative
declaration, or determination of categorical exemption. A violation of a term or
condition of any agreement with the City made pursuant to the police power
includes, but is not limited to, any development agreement, owner participation
agreement, disposition and development agreement, road maintenance
agreement, any easement, license, or other real property use agreement, or any
agreement made with the City to implement any ordinance, plan, permit,
entitlement, or review approved by the City.
B. Each and every day a violation exists constitutes a separate and
distinct offense. A separate citation may be issued for each day a violation
occurs.
C. A civil fine shall be assessed by means of an administrative citation
issued by the enforcement officer and shall be payable directly to the City of
Poway.
D. Fines shall be assessed in the amounts specified for administrative
penalties elsewhere in the Poway Municipal Code, by resolution of the City
Council, or as follows:
violation;
A fine not exceeding one hundred dollars ($100.00) for a first
2. A fine not exceeding two hundred dollars ($200.00) for a second
violation of the same ordinance, term, or condition within one year from the date
of the first violation;
3. A fine not exceeding five hundred dollars ($500.00) for a third
violation of the same ordinance, term, or condition within one year from the date
of the first violation;
4. A fine not exceeding one thousand dollars ($1000.00) for each
additional violation after the third violation of the same ordinance, term or
condition within one ~./ear from the date of the first violation.
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A second or subsequent violation need only be of the same ordinance,
term, or condition to require the larger fine, and need not involve the same
personnel or property, provided that the same responsible person is cited. The
fine amounts shall be cumulative where multiple citations are issued.
1.10.040 Service Procedures
An administrative citation on a form approved by the City Manager may be
served upon any responsible person by an enforcement officer in the following
manner:
issued:
Personal Service. In any case where an administrative citation is
1. The enforcement officer shall attempt to locate and personally
serve the responsible person and obtain the signature of the responsible person
on the administrative citation.
2. If the responsible person served refuses or fails to sign the
administrative citation, the failure or refusal to assign shall not affect the validity
of the administrative citation or of subsequent proceedings.
B. Service of Citation by Mail. If the enforcement officer is unable to
locate a responsible person, the administrative citation shall be mailed to the
responsible person by certified mail, postage prepaid with a requested return
receipt. Simultanecusly, the citation shall be sent by first class mail. If the
citation is sent by (:ertified mail and returned unsigned, then service shall be
deemed effective pursuant to first class mail, provided the citation sent by first
class mail is not returned.
C. Service by Citation by Posting Notice. If the enforcement officer
does not succeed in personally serving a responsible person, or by certified mail
or regular mail, the enforcement officer shall post the administrative citation on
any real property within the City in which the City has knowledge that the
responsible person has a legal interest, and such posting shall be deemed
effective service.
1.10.050 Contents of Citation
Each administrative citation shall contain the following information:
A. The date of issuance of the citation and the date, approximate time,
and address or def;nite description of the location where the violation(s) was
observed, where applicable;
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B. The code sections or conditions violated and a description of the
violation(s);
C. An order to the responsible person to correct the violations by a
specified correction date, if applicable, and an explanation of the consequences
of failure to correct the violation(s);
D. The amount of the fine for each violation;
E. An explanation of how the fine shall be paid and the date by which
it shall be paid (15 days after the correction date);
F. Identification of the right of appeal, including the time within which
the citation may be contested and the place to obtain a request for hearing form
to contest the administrative citation; and
G. The name and signature of the enforcement officer and if possible
the signature for the responsible person.
H. A statement that if the fine is not timely paid, a late payment charge
of fifty percent of the amount of the fine will be added to the fine.
1.10.060 Satisfaction of Administrative Citation
Upon receipt of a citation, the responsible person must do both of the
following:
A. Pay the fine to the City within fifteen (15) days from the correction
date of the administrative citation. All fines assessed shall be payable to the City
of Poway. 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 City.
B. Remedy the violation(s), if the violation(s) is of such a nature that it
can be remedied.
If the violation(s) is corrected before the date provided on the citation no
fine shall be payable. If the responsible person fails to correct the violation(s),
subsequent administrative citations may be issued for the same violation(s) or a
criminal or civil action may be filed.
1.10.070 Appeal of Administrative Citation
A. Any recipient of an administrative citation may contest that there
was a violation of any ordinance, regulation, permit, entitlement, or agreement
covered by this Chapter, or that he or she is the responsible person by
completing a request for hearing form and returning it to the City Clerk within
Ordinance No. 557
Page 7
fifteen (15) days from the issuance date of the administrative citation. The
request for hearing shall be accompanied by a deposit in the amount of the fine
or by a sworn affidavit together with documentation demonstrating to the
satisfaction of the City Manager the person's actual financial inability to deposit
the amount of the fine in advance of the hearing. Any administrative citation
deposit shall be refunded within ten days of a determination, 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. The City Manager shall issue a letter to the person submitting a
hardship waiver affidavit granting or denying the waiver. If waiver is denied, the
appeal shall be dismissed unless the deposit is made within five days of the date
of the letter. The determination of the City Manager shall be final and shall not
be subject to appeal or judicial review.
1.10.080 Hearing Officer
The Poway City Manager shall designate the hearing officer for the
administrative citation hearing. The compensation of the hearing officer, if any,
shall be paid by the City. Compensation shall not be directly or indirectly
conditioned upon whether or not administrative citations are upheld by the
hearing officer.
1.10.090 Hearing Procedure
^. No hearing to appeal an administrative citation before a hearing
officer shall be held unless and until a request for hearing form has been
completed and submitted in accordance with Section 1.10.070, and the deposit
has been made or hardship waiver granted.
B. A hearing before the hearing officer shall be set for a date that is
not sooner than fifteen (15) and not more than sixty (60) days from the date that
the request for hearing is filed in accordance with the provisions of this Chapter.
If the appellant asserts that First Amendment rights are impaired by the citation
and requests an earlier hearing, the hearing shall be within five (5) days from the
date of such request. The appellant shall be notified of the time and place set for
the hearing at least ten (10) days prior to the date of the hearing unless the
hearing date has bean expedited.
C. The hearing officer shall only consider evidence that is relevant to
whether the violation(s) occurred and whether the responsible person has
caused or maintained the violation(s). Courtroom rules of evidence shall not
apply. Relevant hearsay evidence and written reports may be admitted whether
or not the speaker or author is present to testify if the hearing officer determines
that the evidence is reliable. Admission of evidence and the conduct of the
Ordinance No. 557
Page 8
hearing shall be controlled by the hearing officer in accordance with the
fundamentals of due process. The hearing officer may limit the total length of the
hearing to one hour, and shall allow the appellant at least as much time to
present its case as is allowed the City.
D. The appellant shall be given the opportunity to testify and present
witnesses and evidence concerning the administrative citation. The City's case
shall be presented by an enforcement officer or by the City Attorney. The
appellant may be represented by counsel.
E. The failure of the appellant to appear at the hearing shall constitute
a forfeiture of the fine and a failure to exhaust administrative remedies.
F. The administrative citation and any additional documents prepared
by the City in connection with the violation(s) may be submitted by the
enforcement officer and shall constitute prima facie evidence of the respective
facts contained in those documents.
G. If the appellant so requests, the City shall provide to the appellant
copies of all documents that it intends to introduce at the hearing. Such copies
shall be provided to the appellant within five (5) days of the request. If, after
copies of documents have been provided to appellant, the City determines to
submit to the hearing officer additional documents then, whenever possible, a
copy of such documents shall be provided to the appellant prior to the hearing.
H. The hearing officer may continue the hearing and request additional
information from the enforcement officer or the appellant prior to issuing a written
decision.
1.10.100 Hearing Officer's Decision
A. After considering all of the testimony and evidence submitted at the
hearing, the hearing officer may announce a decision orally, but in any event,
shall prepare a written decision. The decision shall be provided to the parties
within ten (10) day.- of the hearing and shall either affirm the issuance of the
citation as issued or dismiss the citation. The decision shall briefly state the
reasons for the conclusion of the hearing officer. The City shall serve the
decision on the appellant in accordance with Section 1.10.040. The decision of
the hearing officer shall be final. If the hearing officer determines that First
Amendment rights are involved, the decision shall be issued orally at the
conclusion of the hearing and shall be effective immediately. A written decision
shall thereafter be issued as provided herein below.
B. If the hearing officer affirms the issuance of the administrative
citation, then the del:osit with the City shall be retained by the City. If a hardship
waiver was granted, the decision shall set forth a payment schedule for the fine.
Ordinance No. 557
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C. If the hearing officer dismisses the administrative citation, then the
City shall promptly refund the deposit.
D. The hearing officer shall not have the power to reduce the fine.
1.10.110 Failure to Pay Fines
A. The failure of any person to pay the civil fines imposed by an
administrative citation within the time specified on the citation may result in the
filing of a claim with the Small Claims Court or the Superior Court for recovery of
the fine. The only issue to be adjudicated by the court shall be whether or not
the fines were paid. A person cited may only obtain judicial review of the validity
of the citation by wr!t of mandate after exhausting their administrative remedies
by requesting and :)articipating in an administrative hearing before a hearing
officer. In the court action, the City may also recover its collection costs,
including the cost of the hearing officer, and any court fees, according to proof.
B. In lieu of or in addition to the filing of a court action, the City may
impose a code enforcement lien on the real property upon which the violation
occurs. Any lien imposed pursuant to this Chapter shall attach upon the
recordation of a Notice of Code Enforcement Lien in the Office of the County
Recorder.
1.10.120 Reduction of Cumulative Fines
If the violation is corrected within a reasonable time after the decision of
the hearing officer, the City Manager shall have the discretion to reduce any
cumulative fines to a total of not less than one thousand dollars ($1,000.00) upon
good cause shown by the responsible person. The determination of the City
Manager shall be final and shall not be subject to appeal or judicial review. Fines
shall not otherwise be reduced.
1.10.130 Late Payment Charges
Any person who fails to pay a fine imposed by this Chapter on or before
the date that payment is due, shall also be liable for the payment of a late
payment charge of fifty percent (50%) of the fine.
1.10.140 Right to Judicial Review
Either the City or the appellant aggrieved by a decision of a hearing officer
on an administrative citation may obtain review of the decision by filing a petition
for review with the ,~;an Diego Superior Court in accordance with the timelines
and previsions as set forth in California Government Code Section 53069.4(b).
Said procedure sh~?l be available for all judicial review under this Chapter,
Ordinance No. 557
Page 10
notwithstanding that the term or condition being enforced pursuant to this
Chapter may not be a matter covered by Section 53069.4(a). Judicial review of a
citation shall not be available without first participating in a hearing as provided in
this Chapter.
1.10.150 Procedural Compliance
Failure to comply with any procedural requirement of this Chapter, to
receive any notice or decision specified in this Chapter, or to receive any copy
required to be provided by this Chapter shall not affect the validity of proceedings
conducted hereunder unless the responsible person is denied constitutional due
process thereby.
Section 3. Severability. If any section, subsection, sentence, clause or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional, such decision shall
not affect the validity or constitutionality of the remaining portions of this Ordinance.
The City Council hereby declares that it would have passed this Ordinance and each
section, subsection, clause or phrase hereof, irrespective of the fact that any one or
more section, subsections, sentences, clauses and phrases by declared
unconstitutional.
Ordinance No. 557
Page 11
EFFECTIVE DATE: This ordinance shall take effect and be in force thirty
(30) days after the date of its passage; and before the expiration of fifteen (15) days
after its passage, it shall be published once with the names of members voting for and
against the same in the Poway News Chieftain, a newspaper of general circulation
published in the City of Poway.
Introduced and first read at a Regular Meeting of the City Council of the
City of Poway held this 30th day of April 2002, and thereafter PASSED AND ADOPTED
at a regular meeting of said City Council held the 14th day of May 2002, by the following
roll call vote.
AYES: GOLDBY, HIGGINSON, REXFORD, CAFAGNA
NOES: NONE
ABSTAIN: NONE
ABSENT: EMERY
ATTEST:
Michael P. ~;afagr
Lorj Anne-P-eoples, City Cl~rk
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