HomeMy WebLinkAbout15 ORD NO. 1428 HEARING OFFICER GUIDELINESMEETING DATE: APRIL 16, 2013
TO: JEFFREY C. PARKER, CITY MANAGER
FROM: ELIZABETH A. BINSACK, COMMUNITY DEVELOPMENT DIRECTOR
SUBJECT: ORDINANCE NO. 1428 TO AMEND ARTICLE 1 CHAPTER 1 AND
ARTICLE 8 CHAPTER 1 AND CHAPTER 8 (CODE AMENDMENT 2013-
003) OF THE TUSTIN CITY CODE INCORPORATING HEARING
OFFICER GUIDELINES FOR ADMINISTRATIVE HEARING
PROCEDURES
On November 4, 2008, the Tustin City Council adopted Ordinance No. 1358 amending
Article 1 of the Tustin City Code establishing an Administrative Citation Program for
penalty provisions for administrative citations.
Ordinance No. 1428 (Code Amendment 2013 -003) is a City initiated update to the Tustin
City Code Article 1 and Article 8 in order to:
• Establish Hearing Officer Guidelines
• Incorporate amendments that are consistent with State law
• Implement penalty fee provisions for non - payment of citations
• Update definitions and procedures
• Incorporate a fixed amount for compensation with a maximum overall amount per
hearing to Hearing Officers
RECOMMENDATION:
That the City Council take the following action:
1. Introduce and have first reading of Ordinance No. 1428 amending Article 1 and
Article 8 of the Tustin City Code and set second reading at the next City Council
Meeting; and
2. Adopt Resolution No. 13 -15 to establish Hearing Officer Guidelines and authorize
the Community Development Director to solicit Request for Proposals (RFP) and
enter into a contract for Hearing Officer services.
Ordinance No. 1428
April 16, 2013
Page 2
FISCAL IMPACT:
The proposed amendment would set a fixed amount for Hearing Officer compensation,
set a maximum overall amount per hearing, allow a non - attorney to serve as a Hearing
Officer, and establish penalty fees for non - payment of citations. With the implementation
of these provisions it is anticipated that the City would greatly reduce funds expended
on administrative hearings in the future.
BACKGROUND AND DISCUSSION:
The City adopted the administrative citation ordinance and program (Administrative
Citation Program) in 2008. The Administrative Citation Program was established in
response to the need for an alternative method of enforcement for various violations of
the Tustin City Code. The goal of the Administrative Citation Program is to improve
quality of life by promoting and protecting the public health, safety, and welfare for
Tustin residents and business owners by reducing the number of code violations
through the encouragement of expedient compliance with the Tustin City Code (TCC)
and State Codes, ordinances, and regulations in a timely and efficient manner when
other administrative remedies are unsuccessful.
Since its inception and after several years of conducting administrative hearings, staff
has identified opportunities to streamline the hearing process and reduce costs
associated with administrative hearings. Additionally, the Supreme Court (Hass v.
County of San Bernardino) affirmed a judgment relating to due process clause laws
permitting parties to select the judge before whom a case is filed and paying judges
according to the number of cases heard. Essentially, the Hass case decision has
affected the way in which the City may select temporary administrative hearing officers
and the method in which they are paid according to the duration or amount of work
performed. The City's current ordinance does not conform to this ruling.
The proposed amendment would establish Hearing Officer Guidelines that are
consistent with State law, implement a penalty fee for non - payment of citations, update
definitions and procedures and incorporate a fixed amount for compensation with a
maximum overall amount per hearing to Hearing Officers.
Hearing Officer Guidelines
This amendment will establish a fixed compensation amount for Hearing Officers and a
maximum overall amount per hearing. With this change, it is anticipated that the City
would greatly reduce funds expended on administrative hearings in the future.
Additionally, the current ordinance requires that the Hearing Officer is an attorney. The
fees typically associated with utilizing an attorney on an hourly basis can be high.
Therefore, the proposed ordinance allows an individual appointed by the City Manager
or his designee, who is not necessarily required to be an attorney, to act as the Hearing
Officer. This would allow the City some discretion when selecting Hearing Officers on a
Ordinance No. 1428
April 16, 2013
Page 3
rotating basis from a pool of pre- approved and qualified hearing officers to conduct
public hearings depending upon the potential complexity of the appeal.
In addition to revising the time and cost limitations on hearings, staff has prepared
Hearing Officer Guidelines (Guidelines) which will clarify and solidify the City's goals for
the administrative hearing process. The Guidelines provide a summary of the Hearing
Officer's major tasks, hearing procedures, provides measures for special situations,
ethical guidelines, etc., as well as addressing judicial attitude, demeanor, and behavior
during hearings. The Guidelines are attached hereto for reference (Attachment 1).
Penalty Fee for Non - Payment of Citations
Another provision proposed in the amendment is a penalty provision for non - payment.
Staff has learned that other cities (including La Habra, Mission Viejo, Placentia, Rancho
Santa Margarita, and San Juan Capistrano) that have the best collection results for
fines are those with penalties in their schedules. These cities also have the best
percentage of cost ratio for collections to billing. Many violators who are cited initially
ignore the citation. However, the penalty increases with time thereby incentivizing the
violator to comply with the notice and pay the citation in a timely manner. The proposed
amendment would require that if a citation is not paid after 30 days, the original amount
increases by fifty percent (50 %) and after another 30 days it increases by another fifty
percent (50 %). As an example, if an original citation was issued in the amount of $100,
it would automatically increase to $150 after 30 days. If the citation were not paid after
an additional 30 days, the fine would increase to $225. Notification would be sent to the
responsible party on a regular basis through the City's citation processing consultant as
part of the City's current collections process.
Ultimately, the implementation of these provisions will aid in meeting the goal of the
Administrative Citation Program through encouragement of expedient compliance and
reducing the amount of time and costs associated with the hearing process and in the
processing and collections procedures.
Should the Council adopt Ordinance No. 1428, City staff will implement the updated
collections procedures and send out an RFP to identify qualified consultants and move
forward with contract services to handle administrative hearings.
Amy StenietYAICP
Senior Planner Director of Community Development
Elizabeth A. Binsack
Attachments: 1. Draft Ordinance No. 1428
2. Resolution No. 13 -15 and Exhibit A - Hearing Officer Guidelines
ATTACHMENT 1
ORDINANCE NO. 1428
AN ORDINANCE OF THE CITY OF TUSTIN, CALIFORNIA,
AMENDING ARTICLE 1 CHAPTER 1 AND ARTICLE 8
CHAPTER 1 AND CHAPTER 8 (CODE AMENDMENT 2013-
003) OF THE TUSTIN CITY CODE RELATING TO CODE
ENFORCEMENT AND ADMINISTRATIVE CITATIONS.
The City Council of the City of Tustin, California, ordains:
SECTION 1. The City Council finds and determines as follows:
A. On November 4, 2008, the Tustin City Council adopted Ordinance No. 1358
amending Article 1 of the Tustin City Code establishing an Administrative Citation
Program for penalty provisions for administrative citations.
B. That the City has initiated Code Amendment 2013 -003 to Article 1 and 8 of the
Tustin City Code to establish Hearing Officer Guidelines, incorporate
amendments that are consistent with State law, implement penalty fee provisions
for non - payment of citations, update definitions and procedures, and to
incorporate a fixed amount for compensation with a maximum overall amount per
hearing to Hearing Officers.
C. That the City of Tustin is proposing an amendment to the Tustin City Code as it
pertains to code enforcement and administrative citations. The proposed
amendment will update the Tustin City Code for amendments to definitions and
procedures relating to the administrative hearing process for Hearing Officers.
Hearing Officer Guidelines have been drafted for use in the administrative
hearing process and procedures.
D. That on April 16, 2013, a meeting was duly noticed, called, and held before the
City Council concerning Ordinance No. 1428.
SECTION 2. Section 1112 of the Tustin City Code is hereby amended by adding or
amending the following definitions to the Tustin City Code:
Appellant. Any person challenging an administrative citation or other administrative
decision or determination for which an appeal is available pursuant to the provisions of
this Code.
Hearing Examiner. Whenever in this Code, or any of the uniform codes adopted by this
Code, the term "Hearing Examiner" is used it shall be deemed to have the same
meaning as and shall be interchangeable with the term "Hearing Officer ".
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Hearing Officer. The term "Hearing Officer" means an individual who is an attorney and
who it; appointed by the City Manager as set forth in Section 1167 of the Tustin City
Code to conduct administrative citation administrative hearings and take action in
administrative proceedings as specified therein.
SECTION 3. Section 1121f of the Tustin City Code is hereby amended by adding the
following to read:
f. Should a citation not be paid by the responsible party in the time specified
therein, a penalty shall be assessed upon any administrative citation as follows: 30 days
from the date of issuance, a penalty assessment shall assessed in addition to the original
amount by fifty percent (50 %); should the responsible party not pay the citation and
penalty after another 30 days, said citation shall increase by an additional fifty percent
(50 %).
SECTION 4. Section 1166a and 1166b of the Tustin City Code are amended to read:
a. Any recipient of an administrative citation may contest that there was a
violation of the Tustin City Code or that he or she is the Responsible Person or the
amount of any fine imposed by completing a Request for Hearing form and returning it
to the City Clerk within ten (10) days from the date of the administration administrative
citation, together with an advanced deposit of the fine imposed. Any administrative
citation fine which has been deposited by that Responsible Person /Appellant 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. If the Hearing Officer determines
that a lower fine should have been imposed, the amount paid in excess of the fine
determined by the Hearing Officer shall be refunded.
b. Failure of any Responsible Person /Appellant to file an appeal in
accordance with the provisions of this section shall constitute a waiver of that
Responsible Person's /Appellant's rights to administrative determination of the merits of
the administrative citation and the amount of the penalty. If no appeal is filed, the appeal
is filed without the deposit of fine imposed, or if the appeal is abandoned in writing or by
failure to appear at a hearing without being excused, the administrative citation shall be
deemed a final administrative order and a failure to the person to whom the
administrative citation was issued shall be deemed to have failed to exhaust his or her
administrative remedies.
SECTION 5. Section 1167 of the Tustin City Code is amended to read:
1167 Hearing Officer.
a. The Tustin City Manager shall desig;ate-thebe responsible for designation
of a Hearing Officer to hear appeals governed by this Code
citation — hearing, The Hearing Officer shall not be a Tustin City employee. The
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employment, performance evaluation, compensation and benefits of the Hearing
Officer, if any, shall not be directly or indirectly conditioned upon the amount of
administrative citation fines upheld, reduced or overturned by the Hearing Officer. Each
Hearing Officer shall be subject to the provisions of the Political Reform Act of 1974 and
all other laws, ordinances, or regulations of the state or the city relating to conflicts of
interest.
b. The City Manager and /or designee shall establish all appropriate
administrative regulations for implementing this Part, including appointment of Hearing
Officers, the conduct of hearings, and rendering decisions as set forth in the Hearing
Officer Guidelines as adopted by City Council resolution, which shall be available for
review in the office of the City Clerk and which may be amended administratively by the
City Manager and /or his or her designee from time to time.
SECTION 6. Section 1168 of the Tustin City Code is amended to read:
1168 Hearing Procedure.
a. No hearing to contest an administrative citation or other administrative
decision governed by this part before a Hearing Officer shall be held unless and until a
request for hearing form has been completed and submitted, and the fine has been
deposited in advance.
b. A hearing before the Hearing Officer shall be set for a date that is not less
than fifteen (15) days and not more than sixty (60) days from the date that the request
for hearing is filed in accordance with the provisions of this Part. The person requesting
the hearing shall be notified of the time and place set for the hearing at least ten (10)
days prior to the date of the hearing.
c. The Hearing Officer shall only consider evidence that is relevant to
whether the violation(s) occurred or administrative decision should be upheld, whether
the Responsible Person /Appellant has caused or maintained the violation(s) of the
Tustin City Code on the date(s) specified in the administrative citation, and regarding
the amount of the fine imposed if any.
d. The Responsible Person /Appellant contesting the administrative citation or
other administrative decision shall be given the opportunity to testify and present
witnesses and evidence concerning the administrative citation or administrative
decision.
e. The failure of any Responsible Person /Appellant recipiont of an
to appear at the administrative citation hearing shall constitute a
forfeiture of the fine and a failure to exhaust their administrative remedies.
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f. The administrative citation or notice of administrative decision and any
additional documents submitted by the Enforcement Officer shall constitute prima facie
evidence of the respective facts contained in those documents.
q. At least ten (10) days prior to the hearing, copies of the citations, reports
and other documents submitted or relied upon by the Enforcement Officer shall be
delivered to the to the recipient of the administrative citation. No other discovery is
permitted. Formal rules of evidence shall not apply.
g-h. If the Enforcement Officer or his or her designee, or the Appellant submits
an additional written report concerning the administrative citation or administrative
decision to the Hearing Officer for consideration at the hearing, then a copy of this
report material also shall be provided by mail to the other party person requesting the
hearing in a manner reasonably calculated to ensure receipt of the material at least ten
(10) days 72 hours prior to the date of the hearing.
h. At least ten (10) days prior to the h wring, copies of the citations, reports
and other documents submitted or relied upon by the Enforcement Officer shall be
deposited in the mail, postage pre paid and addressed to the recipient of the
administrative citation at the address provided in the request for h wring. No other
The Hearing Officer may continue the hearing and request additional
information from the Enforcement Officer or the Appellant
eitatien prior to issuing a written decision.
j. Hearing Procedures shall be subject to the Hearing Officer Guidelines
established by Resolution of the City Council and as amended by the City Manager or
his designee from time to time.
SECTION 7. Section 8101 of the Tustin City Code is hereby amended to read:
(o) Section 113.1 General of Chapter 1, Division II of the 2010 California Building Code
is hereby replaced as follows:
113.1 General. The Building Board of Appeals for the City of Tustin shall consist of five
members, comprised of members of the Planning Commission. Said members shall
hold their respective membership on said Building Board of Appeals by reason of, and
concurrently with their terms of service as Planning Commissioners and shall cease to
be such members upon their ceasing to be such Commissioners. The Building Official
shall be the Secretary of the Board.
The Building Board of Appeals ("Board") may appoint one or more Hearing Examiners
or Hearing Officers ( "Hearing Officer" or "Hearing Officers ") or designate one or more of
its members to serve as hearing officer(s) to conduct the hearing. The Hearing Officer
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hearing the case shall exercise all powers relating to the conduct of a hearing until it is
submitted to the Board for decision.
Whenever used in this Code or by any other code referenced by this Code, the terms
Hearing Officer and Hearing Examiner shall have the same meaning and may be used
interchangeably.
Whenever the Board elects to appoint a Hearing Officer, said Hearing Officer shall be
selected pursuant to, and shall be subject to, the Hearing Officer Guidelines established
by TCC section 1167.
The Building Board of Appeals may adopt reasonable rules and regulations for
conducting its investigations and shall render its decisions and findings on contested
matters, in writing to the Building Official, with a duplicate copy thereof to any appellant
or contestant affected by any such decision or findings, and may recommend to the City
Council such new legislation, if any, as is consistent therewith.
All Building Board of Appeals decisions and findings shall be transmitted in writing to the
appellant. The Building Official shall maintain a full set of records for each case. The
order of the Building Board of Appeals shall be immediately final.
113.1.1 Application. Applicants for a hearing before the Building Board of Appeals
shall pay a fee in the amount set by City Council resolution prior to administrative
processing for any proceedings. The applicant shall complete the established City
application form for an appeals hearing along with submittal of required fees.
Applicants for a Building Board of Appeals hearing shall be notified at least one (1)
week prior to any hearing or proceedings concerning their case. The applicant shall be
given the opportunity to present his /her case at any proceedings involving their
applications.
SECTION 8. Section 8107 of the Tustin City Code is repealed and replaced to read:
8107 ADOPTION OF UNIFORM CODE FOR THE ABATEMENT OF DANGEROUS
BUILDINGS
The Uniform Code for the Abatement of Dangerous Buildings, 1997 Edition, as
published by the International Code Council, shall be and become the Code of the City
of Tustin, providing regulations for requirements for the repair, vacate, or demolition of
buildings or structures which from any cause endanger the life, limb, health, moral,
property, safety, or welfare of the general public or their occupants. The Uniform Code
for the Abatement of Dangerous Buildings is on file for public examination in the office
of the Building Official.
Chapter 6, Procedures for Conduct of Hearing Appeals, is hereby amended as follows:
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a) Section 601.1 Hearing Examiners /Hearing Officers. The Board may appoint
one or more Hearing Examiners or Hearing Officers or designate one or more of
its members to serve as hearing examiners to conduct the hearings. The
Examiner /Officer hearing the case shall exercise all powers relating to the
conduct of hearings until it is submitted to the board for decision.
b) Section 601.1.1 Whenever used in this Code or by any other code referenced by
this Code, the terms Hearing Officer and Hearing Examiner shall have the same
meaning and may be used interchangeably.
a) Section 601.1.2 Whenever the Board elects to appoint a Hearing Examiner or
Hearing Officer pursuant to Section 601.1, said Examiner /Officer shall be
selected pursuant to, and shall be subject to, the guidelines established by TCC
section 1167.
b) Section 604.8 In addition to the provisions of Sections 604.1 through 604.7,
hearings conducted before a Hearing Officer or Hearing Examiner shall be
subject to the provisions of TCC section 1168.
c) Section 605.2 Where a case is heard by a Hearing Examiner or Hearing Officer
the Examiner /Officer shall submit a written report to the Board consistent with the
hearing officer guidelines established by TCC section 1168 for consideration by
the Board.
SECTION 9. Section 8700 of the Tustin City Code is repealed and replaced to read:
8700 - ADOPTION OF 1997 EDITION OF THE UNIFORM HOUSING CODE
Except as provided in this chapter, that certain housing code known and
designated as the Uniform Housing Code, 1997 Edition, published by the International
Conference of Building Officials, shall become the Housing Code of the city, regulating
and controlling the use and occupancy, location and maintenance of all residential
buildings and structures within this City. The Uniform Housing Code will be on file for
public examination in the Community Development Department.
Chapter 2, Enforcement, is hereby amended as follows:
Section 203 — Housing Advisory and Appeals Board /Building Board of Appeals
a) Section 203.1 General. In order to hear and decide appeals of orders, decisions
or determinations made by the Building Official relative to the application and
interpretations of this code, there shall be and is hereby created a Housing
Advisory and Appeals Board /Buildinq Board of Appeals for the City of Tustin
( "Board of Appeals ") as set forth in 2010 CBC section 113.1 as amended by TCC
section 8101 who are qualified by experience and training to pass upon matters
pertaining to building construction and who are not employees of the jurisdiction.
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The Building Official shall be an ex officio member and shall act as secretary to
said Board but shall have no vote upon any matter before the Board. The
housing advisory and app als board Board of Appeals shall be appointed by the
governing body and shall hold office at its pleasure. The board shall adopt rules
of procedure for conducting its business and shall render all decisions and
findings in writing to the appellant with a duplicate copy to the Building Official.
Appeals to the Board shall be processed in accordance with the provisions
contained in Section 1201 of this code. Copies of all rules of procedure adopted
by the Board shall be delivered to the Building Official, who shall make them
accessible to the public.
b) 203.2 Limitations of Authority. The Board
of Appeals shall have no authority relative to interpretation of the administrative
provision of this code and the Board shall not be empowered to waive
requirements of this code.
Chapter 13, Procedures for Conduct of Hearing Appeals, is hereby amended as follows:
a) Section 1301.1 Hearing Examiners /Hearing Officers. The Board may appoint
one or more Hearing Examiners or Hearing Officers or designate one or more of
its members to serve as hearing examiners to conduct the hearings. The
Examiner hearing the case shall exercise all powers relating to the conduct of
hearings until it is submitted to the board for decision.
b) Section 1301.1.1 Whenever used in this Code or by any other code referenced
by this Code, the terms Hearing Examiner and Hearing Officer shall have the
same meaning and may be used interchangeably.
c) Section 1301.1.2 Whenever the Board elects to appoint a Hearing Examiner or
Hearing Officer pursuant to Section 1301.1, said Examiner /Officer shall be
selected pursuant to and shall be subject to the guidelines established by TCC
section 1167.
d) Section 1304.8 In addition to the provisions of Sections 1304.1 through 1304.7,
hearings conducted before a Hearing Examiner or Hearing Officer shall be
subject to the provisions of TCC section 1168.
e) Section 1305.2 Where a case is heard by a Hearing Examiner or Hearing Officer
the Examiner /Officer shall submit a written report to the Board consistent with the
Hearing Officer Guidelines established by TCC section 1168 for consideration by
the Board.
SECTION 10. Section 8800 of the Tustin City Code is hereby amended as follows:
CHAPTER 8 DANGEROUS BUILDINGS
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EDITOR'S NOTE: Ord. No. 1091, Sec. 8, adopted July 6, 1992, repealed Section 8 of
Article 8 in its entirety and added in place thereof a new Ch. 8 to read as herein set out.
Prior to repeal, former Ch. 8, 8800 and 8801, were derived from Ord. No. 1043, Sec. 8,
adopted Feb. 5, 1990. A duplicate of the Adoption of Uniform Code for the Abatement of
Dangerous Buildings was added to section 8107 (Ord. No. 1386, Section 15, 12 -7 -10)
Therefore, this section and any reference hereto shall indicate TCC section 8107.
8800 ADOPTION OF 1997 EDITION OF THE UNIFORM CODE FOR THE
.e. a ■.. �� ..
Except as otherwise provided in this Chapter, that certain building code known
and designated as the Uniform Codc for the Abatement of Dangerous Buildings, 1997
Edition, published by the International Conference of Building Officials, shall be and
become the code of the city for the Abatement of Dangerous Buildings; providing for a
remedies provided by the building code, housing code, or otherwise available at law,
morals, property, safety or welfare of the general public or their occupants, may be
requested to be repaired, vacated or demolished. The Uniform Codc for the Abatement
. _ .
Development Department
SECTION 11. Section 8914 of the Tustin City Code is amended to read:
8914 — APPEALS
Any applicant for a grading permit, permittee, or other person who was aggrieved by
any decision to deny or grant a grading permit, issued a stop work order, or who was
aggrieved by any decision to revoke or suspend a grading permit may appeal said
action to the Board of Appeals by filing with the Community Development Department a
written notice thereof within seven (7) days from the date of mailing or receipt of notice
of such action by the City, whichever occurs first. The aggrieved person shall be given a
hearing before the Board of Appeals, after which the Board of Appeals shall have
discretion to grant or deny the appeal or modify the decision of the Building Official and
the decision of the Board of Appeals shall be final. The Board of Appeals may elect to
have a Hearing Officer take evidence and submit a written report/proposed decision to
the Board. The hearing, when conducted by a Hearing Officer, shall be subject to the
Hearing Officer Guidelines adopted set forth in TCC section 1167.
SECTION 12. This Ordinance shall become effective at 12:01 a.m. on the thirty -first day
after passage.
SECTION 13. If any section, subsection, subdivision, paragraph, sentence, clause, or
phrase in this Ordinance or any part thereof is for any reason, held to be
unconstitutional or invalid, or ineffective by any court of competent jurisdiction, such
decision shall not affect the validity or effectiveness of the remaining portions of this
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918569.1915104.1
Ordinance or any part thereof. The City Council hereby declares that it would have
passed this Ordinance and each section, subsection, subdivision, sentence, clause, and
phrase thereof, irrespective of the fact that any one or more sections, subsections,
subdivisions, sentences, clauses, or phrases be declared unconstitutional.
PASSED, APPROVED, AND ADOPTED this 7TH day of May, 2013.
ELWYN A. MURRAY
MAYOR
ATTEST:
JEFFREY C. PARKER
CITY CLERK
ORDINANCE CERTIFICATION
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) ss.
CITY OF TUSTIN )
ORDINANCE NO. 1428
Jeffrey C. Parker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five; that the above and foregoing Ordinance No. 1428
was duly and regularly introduced at a regular meeting of the Tustin City Council, held
on the 16th day of April, 2013, and was given its second reading, passed, and adopted
at a regular meeting of the City Council held on 7TH day of May, 2013, by the following
vote:
COUNCILPERSONS AYES:
COUNCILPERSONS NOES:
COUNCILPERSONS ABSTAINED:
COUNCILPERSONS ABSENT:
JEFFREY C PARKER
CITY CLERK
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ATTACHMENT 2
RESOLUTION NO. 13 -15
A RESOLUTION OF THE TUSTIN CITY COUNCIL
ADOPTING HEARING OFFICER GUIDELINES FOR THE
ADMINISTRATIVE HEARING PROCESS.
The City Council of the City of Tustin does hereby resolve as follows:
I. The City Council finds and determines as follows:
A. That the administrative adjudicatory process should be more expeditious
and less expensive for all parties than a judicial proceeding. The hearing
should be much less formal, consistent with the fundamentals of fairness,
impartiality, and thoroughness;
B. That on November 4, 2008, the Tustin City Council adopted Ordinance
No. 1358 establishing Administrative Citation Procedures;
C. That Hearing Officer Guidelines have been drafted for use in the
administrative hearing process and procedures which will clarify and
solidify the City's goals of the administrative hearing process. The
Guidelines provide a summary of hearing officer's major tasks, hearing
procedures, provides measures in special situations such as ethical
guidelines, as well as addressing judicial attitude, demeanor, and behavior
during hearings;
D. That public notice was published in the Tustin News on February 21, 2013
and on March 5, 2013, the item was continued to March 19, 2013, and on
March 19, 2013, the public hearing item was continued to April 16, 2013, at
which time a public hearing was duly called, noticed, and held, for
Ordinance No. 1428 incorporating Hearing Officer Guidelines and that;
E. That on May 7, 2013, the City Council had first reading of Ordinance No.
1428 to update to the Tustin City Code for amendments to definitions and
procedures relating to the administrative hearing process for Hearing
Officers; and
II. That the Tustin City Council hereby approves the Hearing Officer Guidelines for
the administrative adjudicatory process (attached hereto as Exhibit A) and
authorizes the Community Development Director to solicit Request for Proposals
(RFP) and enter into a contract for Hearing Officer services.
III. That the City Council authorizes the Community Development Director to update
minor amendments to the Hearing Officer Guidelines from time to time as
necessary.
Resolution No. 13 -15
Hearing Officer Guidelines
Page 2
PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 7th
day of May, 2013.
ELWYN A. MURRAY
MAYOR
ATTEST:
JEFFREY C. PARKER
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS
CITY OF TUSTIN
CERTIFICATION FOR RESOLUTION NO. 13 -15
Jeffrey C. Parker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin,
California, does hereby certify that the whole number of the members of the City
Council of the City of Tustin is five; that the above and foregoing Resolution No. 13 -15
was duly passed and adopted at a regular meeting of the Tustin City Council, held on
the 7th day of May, 2013, by the following vote:
COUNCILMEMBER AYES:
COUNCILMEMBER NOES:
COUNCILMEMBER ABSTAINED:
COUNCILMEMBER ABSENT:
JEFFREY C. PARKER, CITY CLERK
EXHIBIT A
TUSTIN
31)I lt,I Ni. OUR Ill i Ukl
HONOk1N.1 OUR CNS]
Hearing Officer Guidelines
1.0 Goals of the Administrative Hearing Process
The administrative adjudicatory process should be more expeditious and less expensive
for all parties than a judicial proceeding. The hearing should be much less formal,
consistent with the fundamentals of fairness, impartiality, and thoroughness. When due
process requires a hearing, the adjudicator must be impartial. The hearing officer's goal
should be to develop a fair, accurate, intelligible, and concise record that can easily be
reviewed, and to prepare a proposed or final (in appropriate circumstances) decision
that is fair, accurate, intelligible, and concise.
2.0 Hearings on Shortened Time
It is the hearing officer's responsibility to move matters along and to set deadlines. The
hearing officer has the responsibility to abbreviate any prehearing procedures in a
manner that is consistent with due process and to issue prompt decisions on procedural
issues and respond timely to parties' inquiries. Generally, deadlines for such matters as
amendment of the accusation or statement of issues, exchange of witness lists and
exhibits, permissible discovery, or prehearing motions are set at a prehearing
conference. If faced with a party failing to meet deadlines, the hearing officer will have
some discretion to devise an appropriate consequence. As a matter of fairness, the
hearing officer should try to devise a penalty that does not impose a burden on parties
who have met the deadlines.
3.0 Summary of Hearing Officer's Major Tasks
1. Make the pre- hearing statement (if necessary)
2. Read the citation into the record (optional)
3. Administer the oath
4. Verify respondent's name and address
5. Verify the registered owner's name and address and the respondent's
relationship to the registered owner if applicable
City of Tustin
Hearing Officer Guidelines
6. Hear and examine the respondent, any witnesses and all the evidence
7. Render and announce a decision including the rationale
8. Document the disposition on the hearing disposition form
4.0 Hearing Procedures
The hearing process is generally informal. Nevertheless, there are certain rules which
must be followed to ensure that a proper record of the hearing is maintained and to
avoid any problems or irregularities.
4.1 Organizing the Hearing
The hearing officer should establish the order of oral presentations in the prehearing
order or by other notice well before the hearing.
4.2 Narrowing the Issues
Stipulations of fact and for admission of certain evidence are useful for narrowing the
issues that will be presented at the hearing. The hearing officer should encourage
parties to determine subjects that are not in dispute and would be suitable for
stipulation. Setting a deadline several days in advance of the hearing for filing
stipulations will encourage the parties to meet to discuss the issues and focus their
presentations.
4.3 Agenda
The hearing officer should circulate a tentative agenda before the conference. The
parties should be asked if they have additional issues to discuss at the conference. The
hearing officer may permit pre -filed testimony to be submitted simultaneously by both
parties, or in alternating rounds, beginning with the party with the burden of proof.
4.4 Begin the Hearing
To begin the hearing, the hearing officer will present an opening statement which
includes:
• A short explanation of the hearing process.
• Notification that the hearing is being recorded.
• Inform the respondent that the options for contesting a citation are "admit liability
with an explanation" or "deny liability ".
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• Notify the respondent that a written notice of the decision in the hearing will be
mailed to the respondent's address indicated on the Request for Hearing Form.
• Inform the respondent of the right to an appeal of the decision in civil court and
the time limit for filing an appeal.
• State the date and time and instruct the respondent to give his or her name and
address for the record.
• Ask the respondent if he or she is the responsible party for the subject property.
• If witnesses are present, ask them to give their name and address for the record.
• (optional) Swear in the respondent and witnesses by instructing them to put up
their right hand and repeat the oath. If someone objects to taking an oath, any
formal assertion of intention to testify truthfully will suffice.
• Recite the following oath: "Do you swear or affirm that the testimony you give will
be the truth ?" If yes, please say "I do ".
• Excuse all witnesses and inform them that they will be recalled when it is their
turn to testify.
• Verify the citation number, date, time, location and type of violation.
• Request that the respondent enter a plea of "admit liability with explanation" or
"deny liability" for the record.
4.5 Review the Prima Facie Case
Examine the citation to determine if all statutorily required and pertinent information has
been entered by the issuing officer. If any vital information is missing, dismiss the
citation. If no required information is missing, follow steps below for "admit liability with
explanation" (Section 4.6) or follow steps outlined for "deny liability" (Section 4.7).
4.6 Admit Liability with Explanation
If the respondent admits liability but desires to submit a mitigating explanation, ask the
respondent to testify to the mitigating circumstance. Following the testimony, ask the
respondent for the record if there is any additional testimony or evidence they wish to
present. If the testimony does not clearly set forth the mitigating circumstance, ask the
respondent questions relating to the testimony.
Call in witnesses, if needed one by one. Ask the witnesses to present their testimony for
the record.
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Review all documents and other supporting evidence. For the record, read aloud or
describe any documents presented, Place copies of all documentation or other
supporting evidence in the case file.
Ask the respondent if there is any further testimony prior to closing the hearing.
4.7 Deny Liability
Ask the respondent to present his or her testimony explaining the circumstances of the
violation. Listen carefully to the respondent's testimony. If necessary, cross - examine the
respondent to clarify points relating to the issuance of the citation.
Call in witnesses, one by one. Ask the witnesses to present their testimony. Review all
documents and other supporting evidence. For the record, read aloud or describe any
documents presented. Place copies of all documentation or other supporting evidence
in the case file. Ask the respondent if there is any further testimony prior to closing the
hearing.
4.8 Expected Duration
The expected duration of proceedings are typically one to two hours for administrative
citation hearings. Hearings for Building Code appeals or Uniform Code for the
Abatement of Dangerous Buildings may last longer, however, no more than four hours
should be spent on hearings. If a hearing is anticipated to last for more than two hours,
a pre- hearing agenda should be drafted and distributed to the respondent, the City and
any witnesses to arrange a speedy hearing schedule.
4.9 Close the Hearing
Retain a copy of the hearing record. In the event that a continuance has been granted,
the hearing officer must complete and file the continuance form in the continuance
folder. When the hearing that was continued is completed, the hearing officer should
make the relevant entries in the continuance log. When a person to whom a
continuance has been granted fails to re- appear at the appointed time, the hearing
officer must render a decision on the record. The hearing officer must also complete the
continuance no -show form to be mailed to the respondent.
4.10 Render a Decision
Make a decision on liability based on the testimony and evidence. Enter the disposition
on the hearing record and enter the total amount of fine to be forfeited.
Enter a brief written statement and make a brief statement to the respondent regarding
the decision and then briefly explain including the rationale for the decision on the
hearing record.
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5.0 Special Situation
5.1 The Unruly Respondent
Occasionally, a respondent will become unruly during or after a hearing. This can often
be precluded by fair and courteous treatment and by a rational explanation of the
decision. Respondents should have been appraised of their right to an appeal in civil
court prior to the commencement of the hearing. Should a respondent become abusive,
the hearing officer should be prepared to call for a police officer to escort the
respondent from the room.
A hearing officer is not required to tolerate personal abuse as part of the position. If a
respondent becomes abusive, the hearing officer should warn him or her to desist, and
that if such behavior continues it will result in a termination of the hearing. If a hearing
must be terminated because of a respondent's objectionable behavior or refusal to
comply with the procedural requirements (after proper warning), the hearing officer
should enter a decision based on the evidence to that point. It is vital that the Hearing
Officer record the entire proceeding (including warnings about objectionably behavior)
and include an explanation of the resulting action on the decision form.
Again, it should be emphasized that everything, from the moment the respondent enters
the hearing room until the announcement of the decision and the conclusion of the
hearing, should be documented or retained as evidence and or recorded. If the hearing
officer suspects that a problem will develop, the proceedings should continue to be
recorded until the respondent has left the hearing room. It should be noted that
premature termination of a hearing is a radical step and should be avoided, if possible,
in all but the most flagrant cases of misconduct.
5.2 Ethical Guidelines
If at any time, a hearing officer is confronted with a respondent and the hearing officer
believes that there may be bias for or against, the hearing officer should disqualify
himself or herself. If for any reason it could be implied that the hearing officer would
benefit from a decision favoring or not favoring the respondent, the hearing officer
should disqualify himself or herself.
If at any time, an approach is made by any person, including someone connected with
the City, that, either directly or by implication, attempts to influence the hearing officer's
decisions, the situation must immediately be brought to the attention of the Director in
charge of the program.
At no time is any hearing officer or any other employee of the City to suggest, arrange,
or agree that any particular respondent appear before any particular hearing officer. Any
such request or suggestion shall be immediately reported to the Director in charge of
the program. Failure to report such a suggestion or arrangement may constitute
grounds for disciplinary action against all parties withholding such knowledge.
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6.0 Judicial Attitude, Demeanor, and Behavior
The hearing officer's demeanor sets the tone for the hearing. The hearing officer should
focus on the hearing and listen attentively. The hearing officer should, if possible,
arrange the hearing officer's schedule to avoid interrupting the hearing for personal
business. The hearing officer should treat all participants with respect. Each witness
should be addressed formally, for example, Mr. Jones or Ms. Smith. The hearing officer
should not argue with participants.
The hearing officer must control the hearing. The hearing officer has functions and
responsibilities analogous to a trial judge. For example, the hearing officer may place
reasonable time limits on the presentation of evidence. As soon as the subject under
inquiry is exhausted or fully developed, the hearing officer should stop the party or the
witness and direct him or her to go to other matters. If the question or answer is
irrelevant or improper, the hearing officer should strike it without waiting for an objection.
The following suggestions for the format of the written decision:
• The opening paragraphs should describe succinctly the nature of the case and
the applicable statutes and regulations;
• The prehearing procedural history should be outlined; for example, if a motion to
dismiss or a motion for summary judgment was brought, the decision should note
that, as well as any ruling on the motion;
• , Although the relief requested by the parties may be described, their detailed
contentions should not be recited in the opening paragraphs; including detailed
contentions in the opening unnecessarily lengthens the decision, since they must
be repeated in discussing the merits;
• The decision should contain a summary of the principal findings of fact and
conclusions of law; if submission of proposed findings and conclusions has been
requested, the hearing officer's ruling on each of them should be apparent from
the decision, and the decision should preferably include a ruling accepting or
rejecting each relevant proposal, with an explanation of the reasons for each
rejection; a preliminary review may establish that a proposal is irrelevant,
immaterial or cumulative, which finding can obviate the need for more
substantive review and ruling;
• The decision should include specific findings on all the major facts in issue
without going into unnecessary detail; it is not necessary to list all the evidence
submitted by each party;
• All of the ultimate findings should be separately numbered and framed in the
applicable statutory language;
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• The decision should set out the relevant standard of proof, which in
administrative proceedings is the "preponderance of the evidence" standard
unless otherwise stated in the relevant statute, regulation, or case law;
• The hearing officer should apply the law to the facts and explain the decision;
• Rulings on credibility of witnesses should be specifically indicated if significant,
because those findings will be given deference by a reviewing court;
• Footnotes may be used for such material as citations of authority and cross
references but not for substantive discussion;
• Maps, charts, technical data, procedural details, and other germane background
material too lengthy to be included in the text may be attached as appendices;
• An order for adoption by the agency should be attached (see Attachment 1
Template for Order of Hearing Officer);
• The final order must clearly indicate that the document is a final decision and that
the claimant may obtain review of the administrative decision by filing a petition
for review with the Orange County Superior Court in accordance with the
timelines and provisions as set forth in California Government Code Section
53069.4.
7.0 Special Requirements
1. The Hearing Officer shall comply with all applicable federal, state and local laws
applicable to its activities.
2. The Hearing Officer shall not release to the public or press any information regarding
the purpose /scope of services to be accomplished or data specific to the project
required under the Agreement without prior authorization of the contract officer. All
such information is considered confidential. All inquiries made of Hearing Officer
shall be immediately referred to the Contract Officer.
3. Hearing Officer shall present to the City certificates of insurance and endorsement
forms verifying that the Hearing Officer has the insurance as required by the City
and set forth in the Consultant Services Agreement. Said form shall be reviewed
and approved by the office of the City Attorney of the City of Tustin.
4. If the Contract Officer determines that a product deliverable is unacceptable, the
Hearing Officer shall submit a revised product at Hearing Officer's expense.
5. The need for an expeditious hearing process is imperative. Therefore, no more than
four hours should be spent on any one hearing.
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6. Monthly progress reports shall be submitted by Hearing Officer with billing requests.
At minimum these reports shall specify the period reported, tasks completed, tasks
underway, percent of project completed and strategies to solve any timing delays.
7. Hearing Officer shall be required to meet with the Contract Officer and City Manager
as determined necessary or desirable to discuss elements of the Scope of Work and
project's progress.
8. For purposes of this Agreement, Hearing Officer shall be the representative thereof,
approved to conduct services under this Agreement.
9. Hearing Officers shall be appointed to hear cases under a pre - established system of
rotation.
10. For purposes of this Agreement, the Community Development Director shall be the
City's Contract Officer.
Attachment
1. Template for Order of Hearing Officer
S: \Cdd\Amy\Admin Cites \Hearing Officer\Hearing Officer Guidelines.docx
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