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CC Ordinance 2138Ordinance No. 2i3s BEING AN ORDINANCE AMENDING CHAPTER 6.10 OF THE CAMPBELL MUNICIPAL CODE PERTAINING TO THE ABATEMENT OF NUISANCES AND IMPOSITION OF ADMINISTRATIVE PENALTIES The Council of the City of Campbell does ordain as follows: SECTION ONE: Chapter 6.10 is hereby amended to read as set forth in Exhibit A, which is attached hereto and made a part hereof. SECTION TWO: This ordinance shall become effective thirty (30) days following its passage and adoption, and within 15 days after adoption of the ordinance, a summary of the ordinance shall be published with the names of the council members voting for and against the ordinance. Passed and adopted this 16th day of Nov , 2010 by the following roll call vote: AYES: Council Members: Kotowski, Kennedy, Furtado, Baker, Low NOES: Council Members: None ABSENT: Council Members: None ABSTAIN: Council Members: None APPROVED: ,-- ~,- r /l __ Evan D. Low, Mayor ATTE nne Bybee, City Clerk Exhibit A Chapter 6.10 NUISANCE ABATEMENT AND ADMINISTRATIVE PENALTIES Sections: 6.10.010 Purpose and intent. 6.10.015 Definitions. 6.10.020 Nuisance Conditions. 6.10.030 Declaration of nuisance. 6.10.040 Voluntary abatement of nuisances. 6.10.050 Failure to voluntarily abate a declared nuisance. 6.1.0.060 Notice of hearinti. 6.10.070 Form of notice of public hearing. 6.10.080 Hearing by hearing officer. 6.10.090 Decision of the hearing officer. 6.10.100 Service of abatement order. 6.10.110 Abatement b~roperty owner or responsible party. 6.10.120 Abatement b~city. 6.10.130 Violation. 6.10.140 Alternatives; Treble Abatement Costs. 6.10.150 Procedure in case of emergency. 6.10.160 Right of inspection. 6.10.170 Criminal penalties. 6.10.180 Administrative~enalties and procedures. 6.10.190 Recovery of enforcement cost. 6.10.200 Assessment of costs against property--Lien. 6.10.210 Designation of hearing officer. 6.1.0.220 Judicial review. 6.10.010 Purpose and intent. The purpose and intent of these regulations is as follows: (1) To define as public nuisances and violations of this code those conditions which are considered harmful and/or deleterious to the public health, safety, and welfare of the citizens of Campbell; (2) To develop regulations that will promote the sound maintenance of property and the enhancement of livability, community appearance, and the social, economic, and environmental conditions of the city; (3) To establish guidelines for the correction of property maintenance violations and nuisances that afford due process and procedural guarantees to affected property owners. 6.10.015 Definitions. As used in this chapter, the following terms shall have the following meanings, unless the context clearly indicates a different intent: "Building official" means any person authorized to enforce the building regulations of the city. "City manager" means the duly appointed city manager of the city, or anyone authorized by him or her to carry out his or her duties under this chapter. "Community development director" means the director of the community development department of the city, or anyone authorized by him or her to carry out his or her duties under this chapter. "Disturbing the peace" means any of the following: (1) Any violation of California Penal Code Section 415; or (2) Any act or course of conduct that a reasonable person would know to be likely to unreasonably and significantly disturb another in the regular conduct of their normal life activities. "Enforcement costs" means all costs incurred by the city in enforcing the provisions of this chapter, whether by abatement, administrative proceedings or civil actions, or any combination of these actions. Enforcement costs shall include the following: (1) Administrative and regulatory costs: including (a) any time spent by a city employee or contractor for code enforcement activities related to the code violation, such as inspections and re-inspections, compliance re-inspections, abatement actions, police services, administration, bookkeeping and accounting, legal services, supervision, preparing for and attending hearings, (b) administrative fines and penalties, and (c) other costs related to the enforcement such as costs of abatement, notices, and court costs. Costs based on time spent by city employees or contractors shall include salary, benefits, and overhead; (2) Collection costs: costs incurred in securing payment of any delinquent amount owed to the city; (3) Attorneys' fees: reasonable attorneys' fees incurred by the city, if the city has elected at the initiation of the individual action or proceeding to seek recovery of its attorneys' fees. "Enforcement officer" means the building official, city code enforcement officer, police officer, city department head (to the extent responsible for enforcing provisions of this code), or any other city employee designated by this code, the city manager, or any department head, to enforce a provision of this code. "Excessive littering" means throwing, dropping, placing, depositing, or sweeping, or causing any such acts, of any waste matter on land or water in other than appropriate storage containers or areas designated for such purposes, which cause the waste matter to accumulate. "Fire marshal" means any person authorized to enforce the fire regulations of the city; "Harassment of passersby" means any of the following conduct when initiated without the consent of the person to whom it is directed: (1) The abuse of a passerby with words which are offensive and inherently likely to provoke an immediate violent reaction; (2) Touching a passerby with an intent to intimidate or coerce; (3) Threatening the passerby with physical harm by word or gesture giving rise to a reasonable tendency to produce in the passerby a fear that the threat will be carried out; (4) Coming closer than three feet to a passerby for the purpose of initiating a commercial transaction through intimidation or coercion; (5) Intentionally blocking or impeding a person's passage; (6) Following a passerby after he or she declines a solicitation with an intent to intimidate or coerce that passerby. "Hearing officer" means a person designated by the city manager to hear and decide any matter authorized pursuant to this chapter. The designated hearing officer shall be an impartial person, such as: (1) a city employee from a department not involved in the prosecution of the matter to be decided, or (2) a person selected from a panel of hearing officers assembled by the city manager, or (3) a person hired from an organization which provides hearing officers. Hearing officers shall be selected in such a manner that the hearing officer does not have a financial incentive to decide a matter to a particular conclusion. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon or affected by the amount of administrative citation fines upheld by the hearing officer. "Lewd conduct" means any of the following: (1) Display or touching of one's own genitals in a place open public view with the intent or purpose of inducing sexual arousal or gratification in one's self or another; (2) Engaging in contact with the genitals of another person in a place open to public view with the intent or purpose of inducing sexual aro~isal or gratification in one's self or another; (3) The non-consensual touching of another person with the intent or purpose of inducing sexual arousal or gratification in one's self or another; (4) Physical contact between anyone over eighteen years of age with someone under eighteen years of age with the intent or purpose of inducing sexual arousal or gratification in one's self or another; or (5) Display by someone over eighteen years of age of his or her genitals to someone under eighteen years of age with the intent or purpose of inducing sexual arousal or gratification in one's self or another. "Loitering" means to delay or linger without a lawful purpose for being on the property and for the purpose or intent of committing a crime as opportunity may be discovered. "Owner" means any person(s) shown as the property owner on the latest equalized property tax assessment rolls. "Person" means a natural person or a legally recognized entity, including a corporation, partnership or public entity. "Responsible person" means all of the following: (1) A person who, by action or inaction (whether acting alone or with one or more other persons), causes, maintains, permits, or allows a violation of this chapter; (2) A person whose agent, employee, or independent contractor, by action or inaction, causes, maintains, permits or allows a violation of this chapter; (3) An owner of real property on which a violation of this chapter occurs; (4) A lessee or sub-lessee with the current right of possession of real property on which a violation of this chapter occurs; (5) A person that uses real property on which a violation of this chapter occurs; (6) An on-site manager who regularly works on real property on which a violation of this chapter occurs and who is responsible for the business or other activities on that real property; (7) The owners, majority stockholders, corporate officers, trustees, general partners and any other person with the legal authority to act for a legal entity that is a responsible person under subsections (1) through (6) above; (8) If any of the above persons are minors or incompetent, the parents or guardians of such persons shall be deemed responsible persons. "Unreasonably loud noise" means a noise that a reasonable person would find to be so loud as to cause significant impairment to their normal life activities, or significant mental or physical injury. 6.10.020 Nuisance conditions. (a) It is declared a public nuisance for any premises in the city to be maintained in such manner so as to be injurious to the health, or to be indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or for anyone to cause, or engage in any conduct that is injurious to the health, or indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . Such public nuisances shall include, but are not limited to: (1) Overgrown, dead, decayed or diseased trees, weeds and other vegetation that: (A) Is likely to harbor rats, vermin, and other similar nuisances, (B) Constitutes a fire hazard or a condition dangerous to the public health, safety and general welfare, or (C) Constitutes an unsightly appearance or otherwise detracts from the aesthetic or property values of the neighboring properties; (2) The presence or accumulation on a premises of any of the following for a period exceeding two weeks, except when the premises have been approved for such storage use under the laws and regulations of the city: (A) Debris, rubbish, scrap materials and trash, (B) Broken or discarded household furnishings, appliances, boxes and cartons and similar materials, (C) An area exceeding one hundred square feet containing lumber and building materials not being used for construction on the premises, (D) Vehicle parts and tires, or (E) Construction equipment and machinery except when in use for construction on the premises; (3) Objects including, but not limited to, unprotected and/or hazardous pools, ponds, ice boxes, refrigerators, or excavations that tend to attract children or other curious individuals, and which present a threat to the health, safety or welfare of such individuals; (4) Structures or buildings, both permanent and temporary, or other lot improvements, which are subject to any of the following conditions: (A) Are structurally unsafe, either entirely or in part, (B) Constitute a fire hazard, (C) A building or structure which is not completed within a reasonable time or for which the permit for such construction has expired, (D) Unoccupied buildings which have been left unlocked or otherwise open or unsecured from intrusion by persons, animals or the elements, (E) A building that has been so damaged by fire, wind, earthquake or flood, or has become so dilapidated that it is structurally unsafe or otherwise unfit for human habitation, (F) Have faulty weather protection including, but not limited to, crumbling, cracked, missing, broken, or loose exterior plaster or other siding, roofs, foundations or floors (including lack of paint or other protective finish), missing windows or doors, (G) Fences and walls which are in a hazardous condition, or (H) Broken windows constituting hazardous conditions and inviting trespassers and malicious mischief; (5) Maintenance of premises so out of harmony or conformity with the maintenance standards of adjacent properties as to cause substantial diminution of the enjoyment, use, or property values of such adjacent properties, as determined by an enforcement officer; (6) Nuisance activity, or real property that has been the situs for nuisance activity including, but not limited to: (A) Disturbing the peace, (B) Illegal drug activity, (C) Public drunkenness, (D) Drinking alcoholic beverages in public, (E) Harassment of passersby, (F) Illegal gambling, (G) Prostitution, (H) The sale of stolen goods, (I) Acts of violence, (J) Public urination or defecation, (K) Acts of vandalism, (L) Acts of lewd conduct, (M) Unreasonably loud noise, (N) Loitering, (O) Excessive littering, (P) A violation of the provisions of Campbell Municipal Code Sections 5.12.030, 5.12.150, 5.12.180, 5.16.010, 6.04.020, 6.04.030, 6.04.050, 6.04.080, 6.11.030 or 20.16.010, (Q) A violation of any of the provisions of Campbell Municipal Code Chapters 5.08.010, 5.24, 5.28, 5.29, 5.30, 5.36, 5.48, 11.04, 11.U8, 11.12, 11.16, 11.32 or 13.04, (R) A violation of any of the provisions of Campbell Municipal Code Titles 7, 14, 17 or 18, (S) A violation of any of the provisions of Campbell Municipal Code Title 21, or any use of real property for a purpose or in a manner other than approved under the provisions of Title 21, (T) The use or maintenance of property in a manner contrary to a court order or judgment in an action in which the City is a party, regarding the use or maintenance of the property; (U) Any condition that would constitute a nuisance pursuant to Chapter 10.44 of the Campbell Municipal Code; (7) Placing any encroachment upon or obstruction in or to any sidewalks, street, alley, lane, court, park, or other public place without the approval of the city; (8) Obstructing the free passage or use, in the customary manner, of any sidewalk, public park, square, street, or highway; or (9) The maintenance or use of property in the city in a manner that violates, or real property that has been the situs of a violation of, any provision of any state or federal law or regulation. (b) Nothing contained in this chapter shall prohibit persons from participating in any activity which the city is precluded from proscribing under the United States Constitution or the California Constitution.6.10.030 Declaration of nuisance. Whenever the enforcement officer finds that a nuisanr~, as defined by Section 6.10.020 exists on any premises located within the city, the code enforcement officer may advise the property owner, or other responsible person of the nuisance and direct that person to abate the nuisance. The notice shall be in writing. The notification shall detail the violations and establish a reasonable abatement period. The notice shall be served either personally on the property owner or other responsible party, or sent by First Class United States mail, or other comparable or superior method of delivery. If there is no known address for the owner or other responsible party, the notice shall be sent in care of the property address. The failure of any person to receive such notice shall not affect the validity of the proceedings. 6.10.040 Voluntary abatement of nuisances. The owner or other responsible person having control of any building, structure or property found to be a nuisance under the provisions of this chapter shall abate the nuisance at any time within the abatement period established pursuant to Section 6.10.030 by cessation, rehabilitation, repair, removal, demolition or other appropriately prescribed methods. The city shall be advised of the abatement and may inspect the premises to insure that the nuisance has in fact been abated. 6.10.050 Failure to voluntarily abate a declared nuisance. If a nuisance is not properly abated within the period established under the provisions of Section 6.10.030, the enforcement officer may schedule a hearing before a designated hearing officer to determine if the declared nuisance should be abated under the police powers of the city. This hearing may be combined with any other hearing scheduled before the hearing officer that concerns the same alleged nuisance. 6.10.060 Notice of hearing. A written notice of the hearing held pursuant to Section 6.10.050, substantially in the form contained in Section 6.10.070, shall be sent by First Class United States mail, or other comparable or superior method of delivery to the property owner at least ten days prior to the date set for the hearing. If there is no known address for the owner, the notice shall be sent in care of the property address for the property on which the nuisance is alleged to exist. The failure of any person to receive such notice shall not affect the validity of the proceedings. 6.10.070 Form of notice of public hearing. Notice substantially in the following form shall be given as provided in Section 6.10.060: NOTICE OF PUBLIC HEARING TO DETERMINE EXISTENCE OF PUBLIC NUISANCE AND TO ABATE IN WHOLE OR PART Notice is hereby given that on the day of , 20 , a hearing officer designated by the City of Campbell will hold a public hearing to ascertain whether certain premises situated in the City of Campbell, State of California, known and designated as constitute a public nuisance subject to abatement by the cessation of the activities constituting the nuisance, rehabilitation of such premises or by the repair or demolition or removal of buildings, structures or other matter situated thereon, or other appropriately prescribed methods. If said premises, in whole or part, are found to constitute a public nuisance as defined by Section 6.10.020 of the Campbell Municipal Code and if the same are not promptly abated by the owner or other responsible party, such nuisances may be abated by municipal authorities, in which case the cost of such abatement will be assessed upon such premises and such cost will constitute a lien upon such land until paid. Said alleged violations consist of the following: Said methods of abatement available are: All persons having any objection to, or interest in, said matters are hereby notified to attend a hearing to be held on the above-referenced date, at the hour of , or shortly thereafter, when their testimony and evidence will be heard and given due consideration. DATED: SIGNED: City Official 6.10.080 Hearing by hearing officer. At the time and place stated in the notice of hearing, a hearing officer designated pursuant to Section 6.10.210 shall hear and consider all relevan* evidence, objections or protests, and shall receive testimony from owners, witnesses, city personnel and interested persons relevant to such alleged public nuisance and to proposed abatement measures. The hearing may be continued from time to time, and may be combined with any other hearing pending before the hearing officer concerning the same alleged nuisance. 6.10.090 Decision of the hearing officer. Following the hearing, the hearing officer shall consider all evidence and determine whether the premises, or any part of the premises, constitutes a public nuisance as alleged. If the hearing officer finds that a public nuisance does exist and that there is sufficient cause to abate the nuisance, the hearing officer shall make a written order setting forth the findings and ordering the owner to abate the nuisance in the manner and by the means specifically set forth in the order. The order shall set forth the times within which the work shall be commenced and completed. The building official shall record the order of the hearing officer with the county recorder's office against the subject property parcel. 6.10.100 Service of abatement order. Within five days following the hearing officer's decision, the property owner and any other responsible person known as having charge or control of the premises shall be mailed a copy of the written order in the manner provided in Section 6.10.060. 6.10.110 Abatement by property owner or responsible party. The property owners or other responsible persons may at their own expense abate the nuisance as prescribed by the order of the hearing officer prior to the expiration of the abatement period set forth in the order. If the nuisance has been inspected by a representative of the city and has been abated in accordance with the order, the abatement proceedings shall be terminated. 6.10.120 Abatement by city. (a) If a declared nuisance is not completely abated by the owner or other responsible persons within the time prescribed in the hearing officer's order, city officials are authorized to cause the nuisance to be abated by city forces or private contract. (b) The city shall keep an account of the costs, including enforcement costs and incidental expenses, of abating such nuisance on each separate lot or parcel of land where the work is done and shall render an itemized report in writing to the designated hearing officer showing the cost of abatement and the abatement, including any salvage value relating thereto; provided, that before the report is submitted to the designated hearing officer, a copy of the same shall be served in accordance with the provisions of Section 6.10.060, together with a notice of the time when the report shall be heard by the hearing officer for confirmation. (c) The hearing officer shall set the matter for hearing to determine the correctness and reasonableness of such costs. (d) Proof of said service shall be made by declaration under penalty of perjury filed with the city clerk. (e) The term "incidental expenses" shall include, but not be limited to, the actual expense and costs of the city in the preparation of notices, specifications and contracts, and in inspecting the work, and the costs of printing and mailing required under this chapter. (f) At the time and place fixed for receiving and considering the report, the hearing officer shall hear and pass upon the report of such costs of abatement, together with any objections or protests. Thereupon, the hearing officer shall make such revision, correction or modification in the report as the hearing officer deems just and necessary to accurately reflect the costs incurred by the city, and confirm the report, as submitted or as revised, corrected or modified. The decision of the hearing officer on all protests and objections which may be made shall be final and conclusive. 6.10.130 Violation. (a) Any responsible person who creates, maintains, or contributes to any public nuisance defined in this chapter shall be guilty of a violation of this chapter. (b) The owner or other responsible person having charge or control of any building or premises on which there is any public nuisance defined in this chapter shall be guilty of a violation of this chapter. (c) The owner or other responsible person who fails to comply with any order to abate served as provided in Section 6.10.120 is guilty of a misdemeanor. (d) Any occupant or lessee in possession of any building or structure who fails to vacate a building or structure in accordance with an order given as provided in this chapter is guilty of a misdemeanor. (e) Any person who obstructs, impedes or interferes with any representative of the city or with any person who owns or holds any estate or interest in a building or real property which has been ordered to be abated, or with any person to whom any such building or real property has been lawfully sold when any of the aforementioned individuals are lawfully engaged in a proceeding involving the abatement of a nuisance is guilty of a misdemeanor. 6.10.140 Alternatives; Treble Abatement Costs. (a) This chapter is intended to be an alternative to existing provisions of this code, California Civil Code or California Penal Code, and is not intended to supersede any such provisions. Nothing contained herein shall be deemed to prevent commencement of a civil or criminal proceeding to abate a public nuisance under any other applicable law. The exercise of one alternative shall not preclude the exercise of some or all of the other alternatives. (b) Upon entry of a second or subsequent civil or criminal judgment within atwo-year period finding that an owner of property is responsible for a condition that may be abated in accordance with this Chapter, the court may order that person to pay treble the costs of the abatement. 6.10.150 Procedure in case of emergency. When the conditions which constitute the nuisance pope an immediate threat to the public peace, health, or safety, the city manager may order the nuisance abated immediately or cause the city to abate the nuisance, without adhering to the procedures set forth in Sections 6.10.030 through 6.10.120, upon adoption of a written declaration of nuisance declaring the facts that constitute the emergency and setting forth the information required by Section 6.10.030. A copy of the declaration shall be personally delivered to the owner of the property on which the nuisance exists, and any other responsible party made subject to the order, at the earliest practicable time. The failure of any person to receive a copy of the declaration shall not affect the validity of the proceedings. 6.10.160 Right of inspection. (a) Right to Inspect. An enforcement officer or other authorized agent of the community development, fire, police, building and/or public works departments shall have the right to enter upon any property within the city limits of the city of Campbell to inspect such property for compliance with this chapter provided that such agent gives the owner and residents of such property at least seventy-two hours advance notice of the inspection in the following manner: (1) A notice shall be conspicuously posted on the property to be inspected, specifying the date, time and reason for the proposed inspection and setting forth a telephone number with directions for the residents or property owners to call for further information; and (2) If the identity and address of the owner is known. such owner shall be notified of the proposed inspection by first-class mail, setting forth the time, date, location and reason for the proposed inspection. (b) Emergency. In the event of an emergency, where the condition of the property poses an immediate threat to the public health or safety, agents of the community development, fire, police, building and/or public works departments may enter the property without the notice specified in subsection (a). (c) Inspections conducted under this section shall be performed reasonably and in accordance with law, including the Fourth Amendment of the United States Constitution and the related protections of the California Constitution. 6.10.170 Criminal penalties. (a) It is unlawful for any person, firm, corporation or other entity to violate any provision, or fail to comply with any mandatory requirement of this chapter. Except as otherwise provided in subsection (b) of this section, any person, firm, corporation or other entity violating any provision, or failing to comply with any mandatory requirement of this chapter is guilty of an infraction, and upon conviction shall be published by a fine of not more than one hundred dollars. (b) Notwithstanding any provision to the contrary, any person, firm or corporation committing any act made unlawful pursuant to this chapter shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than one thousand dollars and/or imprisonment of not more than six months, if any of the following circumstances exists: (1) The violation was committed willfully or with knowledge of its illegality; (2) The violator does not cease, or otherwise abate the violation after receiving notice of such violation within the time specified in the notice; (3) The violator has previously been convicted of violating the same provision of this chapter within two years of the currently charged violation; or (4) The provision violated specifies that such violation shall be a misdemeanor. (c) Each person, firm, corporation or other entity violating any provision, or failing to comply with the mandatory requirements of this chapter shall be deemed guilty of a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued, or permitted by such person, firm, corporation or other entity, and shall be punishable as provided in this section. 6.10.180 Administrative penalties and procedures. (a) Applicability. The city has determined that the enforcement of this code is vital to the protection of the public's health, safety and welfare. The city has determined that there is a need for alternative methods of code enforcement and that a comprehensive code enforcement system includes criminal, civil and administrative remedies. This section provides for the enforcement of violations of this chapter by administrative citations, which are in addition to all other legal remedies, criminal or civil, which the city may pursue to address code violations. Use of this section is at the sole discretion of the city. This section is authorized under Government Code Sections 53069.4 and 36901. (b) Administrative Citations. (1) Authority. Whenever an enforcement officer determines a violation of this chapter has occurred or exists, the enforcement officer has the authority to issue an administrative citation to any responsible person. (2) If the violation of this chapter pertains to building, plumbing, electrical, mechanical, or other similar structural or zoning issues that do not create an immediate danger to health or safety, the enforcement officer shall provide for a reasonable period of time for the responsible person to correct or remedy the violation before imposing administrative fines or penalties. (3) Contents of Citation. An administrative citation issued under this section shall contain the following information: (A) The section of the code violated; (B) A description of the condition creating or constituting the violation; (C) The date and location of the violation; (D) The name of the responsible person to whom the administrative citation is issued; (E) The name and signature of the enforcement officer issuing the administrative citation; (F) The date the administrative citation was issued; (G) The amount of all applicable fines and enforcement costs; (H) A description of the process and timing for payment of fines and enforcement costs; (I) A description of the administrative citation review process, including the time within which the administrative citation may be contested, the place from which to obtain a request for hearing form to contest the administrative citation, and the hearing officer's discretion to impose additional remedies to the city pursuant to subsection (f)(1)(C). (4) Dismissal of an Administrative Citation. At any time before the hearing to contest an administrative citation, if the enforcement officer determines that there was no violation as charged in the administrative citation or that the citation should be dismissed in the interest of justice, the enforcement officer shall dismiss the administrative citation and cancel the hearing. To the extent the enforcement officer determines that a person is not responsible for some or all of a previously paid administrative fine or fee, the enforcement officer shall refund the appropriate amount. The enforcement officer shall notify the person to whom the citation was issued in writing, and make a written notation in the file explaining why the citation was dismissed and why any fine or fee was refunded. (c) Payment of Fines and Enforcement Costs. (1) Amount of Fine. Unless otherwise specified in this code or authorized by state law, or unless established by resolution of the city council, the amount of the fine imposed for each violation of this chapter shall be established as follows: (A) One hundred dollars for a first violation that would constitute an infraction pursuant to Section 6.10.170; (B) Two hundred dollars for a second violation within twelve months of the same provision of this chapter that would constitute an infraction pursuant to Section 6.10.170; (C) Five hundred dollars for each day of each additional violation of the same code section within twelve months that would constitute an infraction pursuant to Section 6.10.170; (D) One thousand dollars per day for each day of each violation of a provision of this code that would constitute misdemeanor under the provisions of this chapter. (2) Amount of Enforcement Costs. In addition to the amount of any fine imposed pursuant to this section, a fee to cover enforcement coots may be imposed pursuant to Section 6.10.190. (3) Due Date. All fines and fees for enforcement costs shall be due and paid to the city within thirty days from the date of the administrative citation. The enforcement officer may suspend the imposition of fines for any period of time during which the responsible person has filed for necessary permits, and such permits are required to achieve compliance, and the responsible person is actively pursuing permit approval and full compliance. (4) Further Violations Not Excused. Payment of a fine under this section does not excuse or discharge any continuation or repeated occurrence of the violation. (d) Hearing Request. (1) A person to whom an administrative citation is issued may request an administrative hearing within ten days of the issuance of the administrative citation. Failure to timely request an administrative hearing in the manner required by this chapter constitutes a waiver of the hearing and a failure to exhaust administrative remedies. (2) A request for an administrative hearing shall be made in writing and filed with the city, and shall state all grounds which the appellant wishes the city to consider. The request shall be accompanied by a deposit of the fines and enforcement costs identified in the administrative citation. Provided, however, a deposit is not required to be paid prior to the hearing if either: (1) the enforcement officer does not identify the requirement to pay the deposit as a part of the administrative citation or compliance order, or (2) the appellant establishes, to the satisfaction of the enforcement officer, that he or she is unable to pay the amount of the deposit. (3) If the enforcement officer determines that the code violation is of an ongoing or recurring nature, the enforcement officer may cause a written notice of administrative hearing to be served on any responsible person. The enforcement officer's notice under this subsection may order the responsible person to appear at the hearing and show cause why the violations and conditions should not be immediately abated by the responsible person at the responsible person's expense. (e) Hearing Procedure. (1) The hearing officer for an administrative hearing shall be designated pursuant to Section 6.10.210. (2) The code enforcement officer shall serve written notice of the date, time, and location of the hearing on the cited responsible person pursuant to subsection (g). The hearing date shall be set on the first available date for the designated hearing officer not less than fifteen days after the date that the request for hearing is filed, and not less than ten days after the date of the notice of hearing. (3) The hearing officer may continue a hearing from time to time, and may request additional information from the enforcement officer or the cited responsible person before issuing a decision. (4) Reports prepared by the enforcement officer concerning a code violation shall be accepted by the hearing officer as prima facie evidence of the facts stated in such documents. If the enforcement officer submits any such documents to the hearing officer, then a copy of the documents shall be served on the cited responsible person at least five days before the hearing. (5) The enforcement officer and other representatives of the city may, but need not, appear and present evidence at the hearing. (6) The failure of the cited responsible person to appear at the hearing shall constitute a failure to exhaust his or her administrative remedies. (7) At the hearing, the cited responsible person shall be given the opportunity to testify and to present evidence concerning the citation, including any evidence to show cause why the violation should not be abated at the cost of the cited responsible person. The hearing need not be conducted in accordance with the technical rules of evidence. Any relevant evidence may be admitted if it is evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might consider such admission improper in a civil action. The hearing officer may exclude irrelevant or unduly repetitious evidence. (f) Hearing Officer's Decision. (1) After considering the testimony and evidence presented at the hearing, the hearing officer shall issue a written decision, based on the preponderance of evidence, to uphold, dismiss, or modify the administrative citation in whole or in part, including the findings on which the decision was made. The hearing officer shall send a copy of the decision to the cited responsible person and to the enforcement officer. (A) The hearing officer's decision shall identify the responsible person's obligation to correct any existing or ongoing code violations. The decision shall identify a reasonable period of time for the responsible person to correct the violation, based on the means required to abate the violation, the potential threat to public health or safety, and the duration (or repetitive nature) of the violation. (B) The hearing officer's decision shall identify the responsible person's obligation to pay all amounts owed for fines and enforcement costs (including any amounts owed through the date that all violations are corrected). In determining the amounts owed, the hearing officer has the discretion to increase or reduce the amount of the fine imposed by the enforcement officer based on any or all of the following factors: (1) the duration of the violation; (2) the frequency, recurrence and number of violations, related or unrelated, by the same violator; (3) the seriousness of the violation; (4) the good faith efforts of the violator to come into compliance; (5) the economic impact of the fine on the violator; (6) the impact of the violation on the community; and (7) such other factors as justice requires. (C) If the hearing officer determines that the seriousness or duration of the violation warrants additional remedies, the hearing officer may order, in addition to other remedies, any or all of the following: (i) The responsible person shall deposit funds with the city to offset the city's cost to conduct ongoing compliance monitoring for a specified period of time; (ii) If the remedy of nuisance abatement is requested by the city pursuant to Section 6.10.050, and the responsible person fails to correct the violation within the time specified by the hearing officer, the city shall be authorized to enter onto the property to abate the violation without further notice; and the responsible person shall pay all actual expenses incurred by the city to abate the violation pursuant to Section 6.10.120, and the responsible person may be required to deposit with the city an estimated amount needed to abate the violation; (iii) The responsible person shall attend a mandatory training program with the goal of minimizing the likelihood of repeat violations; (iv) The person shall report back to the hearing officer by a specified date regarding the status of compliance. (2) The hearing officer's decision is final, and may not be appealed. The decision shall include information regarding the responsible person's right to seek judicial review of the hearing officer's decision pursuant to Section 6.10.220(b). (3) To the extent the hearing officer's decision identifies the responsible person's entitlement to a refund, the city shall make payment to the responsible person within thirty days of the notice of decision. (g) Notices. Notices provided pursuant to this section shall comply with the following requirements: (1) Unless otherwise specified in this code, any compliance order, administrative citation, or any notices required to be given pursuant to this section, shall be served either: (1) by personal delivery to the person to be notified, or (2) by deposit in the United States mail in a sealed envelope, postage prepaid, addressed to the person to be notified at the person's last known business or residence address (as determined by the enforcement officer), or (3) if the enforcement officer reasonably determines that posting the notice would be more effective, by conspicuously posting a copy for a period often days at the real property that is the subject of the violation, and publication in a newspaper of general circulation pursuant to California Government Code Section 6062; (2) When real property is involved in the violation, notices by United States mail may be served on the responsible party at the address as shown on the last equalized county assessment roll or the supplemental roll, whichever is more current. The enforcement officer may, in his or her discretion, also serve notice on a tenant, a mortgagor or any other person having an interest in the real property; (3) The person effecting service of any notice under this section may memorialize the service by written declaration under penalty of perjury, declaring the date, time, and manner that service was made, and the date and place of posting, if applicable. The declaration, along with any receipt card returned in acknowledgment of receipt by certified mail, shall be affixed to a copy of the notice of violation and retained by the enforcement officer; (4) The notices required by this section may be combined with any notices required by Sections 6.10.060, 6.10.070, 6.10.100 or 6.10.120; (5) The failure of a person to receive a required notice shall not affect the validity of any proceedings taken under this chapter. 6.10.190 Recovery of enforcement cost. (a) The prevailing party is entitled to recover reasonable attorney's fees as set forth in this section. The city shall be entitled to recover all of its enforcement costs when it prevails in any action, administrative proceeding, or special proceeding commenced to pursuant to this chapter, including recovery of reasonable attorney's fees. Notwithstanding the foregoing, in order to recover such attorney's fees, the city must have elected at the initiation of the individual action or proceeding to seek recovery of its attorney's fees. (b) A responsible person is entitled to recover reasonable attorney's fees and costs only if a hearing officer determines all of the following: (1) there is a statutory basis for the award of attorney's fees and costs to the responsible person (such as, California Government Code Section 38773.5); (2) the responsible party is the prevailing party, and (3) the city elected at the initiation of the hearing to seek recovery of the city's attorney's fees. If the hearing officer awards attorney's fees to the responsible person under this subsection, the amount of the attorney's fees award shall not exceed the amount of reasonable attorney's fees incurred by the city in the action. 6.10.200 Assessment of costs against property--Lien. (a) If a responsible person is an owner of real property and does not pay any part of the fines, enforcement costs, or other expenses of abating the nuisance within thirty days after the service of notice of these costs, the City Council may order that the enforcement costs shall become a special assessment against the respective lot or parcel of land to which it relates, and upon recordation in the office of the county recorder of anotice of lien shall constitute a lien on said property for the amount of such assessment. (b) Prior to imposing a special assessment lien, the City Council shall hold a public hearing on the proposed assessment lien. (c) Notice of the hearing shall be served upon the owner of record of the parcel of land on which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current, in the manner provided in Section 6.10.180 (g) (1) and (2). The notice shall set forth the following information: (1) The date, time and location of the public hearing; (2) The assessor's parcel number and street address of the property on which the lien and assessment are to be imposed; (3) The identity of the owner of record; (4) The last known address of the owner of record; (5) That the City of Campbell intends to impose a lien and special assessment against the property for unpaid enforcement costs arising out of the violation of ordinance provisions that constitute a public nuisance or threat to the public health and safety; (6) The date the order to abate the property was issued; and (7) The amount of the proposed assessment and lien. (d) Following the public hearing, the City Council may impose the assessment and lien upon finding that enforcement costs are related to ordinance violations on the property, and the ordinance violations constitute a public nuisance or threat to the public health and safety. Otherwise, the City Council shall not impose the assessment or lien. (e) At least ten days prior to recording a lien or imposing an assessment, the City shall serve notice of lien on the owner of record of the parcel of land or which the nuisance is maintained, based on the last equalized assessment roll or the supplemental roll, whichever is more current. The notice of lien shall set forth the following information: (1) The assessor's parcel number,street address and legal description of the property on which the lien and assessment are to be imposed; (2) The identity of the owner of record; (3) The last known address of the owner of record; (4) The date the order to abate the property was issued; (5) The date on which the assessment was ordered; (6) That the lien is being imposed by the City of Campbell; (7) The amount of the proposed assessment and lien; and (8) That the property may be sold after three years by the tax collector for unpaid delinquent assessments or forclosed at any time by an action brought by the City. (f) The notice of lien shall be served upon the owner of record as follow: (1)In the the same manner as summons in a civil action in accordance with Article 3 (commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2 of the California Code of Civil Procedure; and (2)By certified mail to the address set fort? in the county assessor's or county recorder's records. (3)Notwithstanding paragraphs (f) (1) and (2) of this subsection, if, after a diligent search, the owner of the record cannot be found, notice may be served by posting a copy of it in a conspicuous place upon the property for 10 days and publishing the notice in a newspaper of general circulation pursuant to California Governement Code Section 6062. (g) The notice of lien shall be recorded with the County Recorder's Office upon expiration often days following service of the notice of lien,and a copy may be turned over to the tax collector for the city, whereupon it shall be the duty of the tax collector to add the amounts of the respective assessments to the next regular tax bills levied against the respective lots and parcels of land for municipal purposes, and thereafter the amounts shall be collected at the same time and in the same manner as ordinary municipal taxes are collected, and shall be subject to the same penalties and the same procedure under foreclosure and sale in case of delinquency as provided for ordinary municipal taxes; or (h) After such recordation, such lien may be foreclosed by judicial or other sale in the manner and means provided by law. Property may be sold after three years by the tax collector for unpaid delinquent assessments. However, if any real property to which the cost of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or if a lien of a bona fide encumbrancer for value has been created and attaches thereon, prior to the date on which the first installment of the taxes would become delinquent, then the cost of abatement shall not result in a lien against the real property but instead shall be transferred to the unsecured roll for collection. (i) Such notice of lien for recordation shall be in form substantially as follows: NOTICE OF LIEN CLAIM OF CITY OF CAMPBELL, CALIFORNIA Pursuant to the authority vested by the provisions of Chapter 6.10. of the Campbell Municipal Code, the the City of Campbell did on or about the day of 20 ,undertake to cause the public nuisance on the premises hereinafter described to be abated on the real property described herein; and the City Council of the City of Campbell did on the day of , 20 , assess the cost of such abatement upon the real property hereinafter described; and the same has not been paid nor any part thereof; and that said City of Campbell does hereby claim a lien on such abatement in the amount of said assessment, to wit: the sum of $ ;and the same shall be a lien upon said real property until the same has been paid in full and discharged of record. The property may be sold after three years by the tax collector for unpaid delinquent assessments or forclosed at any time by an action brought by the City. The real property hereinbefore mentioned, and upon which a lien is claimed, is that certain parcel of land lying and being in the City of Campbell, County of Santa Clara, State of California, commonly known as Assessor's Parcel Number , located at the address of Exhibit A (legal description). and particularly described as set forth in The owner of record of the above-described property is known address is DATED: SIGNED: City Manager City of Campbell (Acknowledgment) whose last (j) In the event that the lien is discharged, released, or satisfied, either through payment or foreclosure, notice of the discharge shall be recorded by the City of Campbell. A nuisance abatement lien and the release of the lien shall be indexed in the grantor-grantee index. (k) A nuisance abatement lien may be foreclosed by an action brought by the city for a money judgment. (1) The City of Campbell may recover from the property owner any costs incurred regarding the processing and recording of the lien, as well as costs associated with providing notice to the property owner as part of its foreclosure action to enforce the lien. 6.10.210 Designation of hearing officer. (a) When a hearing officer is authorized by this code to hear and decide any matter, the city manager shall designate the hearing officer for the administrative hearing. The designated hearing officer shall be an impartial person, such as: (1) a city employee from a department not involved in the prosecution of the matter to be decided, or (2) a person selected from a panel of hearing officers assembled by the city manager, or (3) a person hired from an organization which provides hearing officers. (b) Hearing officers shall be selected in such a manner that the hearing officer does not have a financial incentive to decide a matter to a particular conclusion. The employment, performance evaluation, compensation and benefits of the hearing officer shall not be directly or indirectly conditioned upon or affected by the amount of administrative citation fines upheld by the hearing officer. 6.10.220 Judicial review. (a) General Time Limits. Any person seeking judicial review of any final decision of the city by writ of mandate under California Code of Civil Procedures Section 1094.5 (generally relating to a legal challenge of any quasi-adjudicative city decision) is notified that the timing requirements of California Code of Civil Procedure Section 1094.6 shall apply to the filing of any such writ, unless a shorter timing requirement is imposed by federal law. Generally, a petition for writ of mandate must be filed within ninety days following the date on which the decision becomes final. (b) Administrative Fine. Notwithstanding subsection (a) of this section, any person seeking judicial review of a hearing officer's final decision as to any administrative fine or penalty shall file an appeal with the Santa Clara County Superior Court within twenty days after service of the final decision, in accordance with California Government Code Section 53069.4. If no notice of appeal is filed in accordance with the requirements of California Government Code Section 53069.4, the final decision of the hearing officer shall be deemed confirmed.