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HomeMy WebLinkAbout09 ORDINANCE 1428 SECOND READING & ADOPTIONAGENDA REPORT MEETING DATE: TO: FROM: SUBJECT: MAY 7, 2013 JEFFREY C. PARKER, CITY MANAGER Agenda Item Reviewed: City Manager Finance Director ERICA RABE, CITY CLERK SERVICES SUPERVISOR 9 SECOND READING AND ADOPTION OF 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 SUMMARY: 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: Have second reading by title only and adoption of Ordinance No. 1428 (roll call vote). FISCAL IMPACT: None BACKGROUND: On April 16, 2013, the City Council had first reading by title only and introduction of the following Ordinance: 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. 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 ". 1 Hearing Officer. The term "Hearing Officer" means an individual who is appointed by the City Manager as set forth in Section 1167 of the Tustin City Code to conduct 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 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 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 be responsible for designation of a Hearing Officer to hear appeals governed by this Code. The Hearing Officer shall not be a Tustin City employee. The employment, performance evaluation, compensation and benefits of 2 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 to appear at the administrative hearing shall constitute a forfeiture of the fine and a failure to exhaust their administrative remedies. 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. 3 g. 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. 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 material also shall be provided to the other party in a manner reasonably calculated to ensure receipt of the material at least 72 hours prior to the date of the hearing. The Hearing Officer may continue the hearing and request additional information from the Enforcement Officer or the Appellant 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 hearing the case shall exercise all powers relating to the conduct of a hearing until it is submitted to the Board for decision. 4 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: 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 5 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 /Building 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. 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 Board 6 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 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 7 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. 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 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 8 ATTEST: JEFFREY C. PARKER, City Clerk ORDINANCE CERTIFICATION STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF TUSTIN ) ORDINANCE NO. 1428 I, 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 9