9.24.120 Enforcement by Order of the City Council

9.24.120 Enforcement by Order of the City Council.

1. The City Manager, or any designated Enforcement Officer, shall have the authority to gain compliance with all provisions of this code. These powers include the power to issue a Notice of Violation, as described in this section, the power to inspect public and private property, and to seek and employ whatever remedies are available under this code.

2. For the purposes of this section, “person responsible” shall mean any person an Enforcement Officer determines is responsible for causing, maintaining, committing, or allowing a violation of this code. A “person responsible” includes without limitation any person who exercises legal or physical control over a property or business premises in the City, such that the person responsible is capable of preventing or correcting violations of this code. The Enforcement Officer may determine that more than one person is the person responsible and may serve notice on and require compliance by all persons determined to be the person responsible.

B. Subject to subsection (F) of this section, whenever an Enforcement Officer finds that a provision of this code has been violated, they may notify the person responsible in writing of the violation. If the Enforcement Officer seeks compliance with this code pursuant to this section, the form of written notice shall be a Notice of Violation, which shall be served in the manner described in subsection (C) of this section. The Enforcement Officer shall include in the Notice of Violation the following information:

1. Date and location of the violation, including the address or definite description of the location where the violation occurred or is occurring;

2. Section(s) of the code being violated and a description of the violation;

3. Actions required to correct or abate the violation and a reasonable amount of time for said actions to be commenced, and the correction or abatement to be completed, considering the criteria in subsection (D) of this section;

4. Notice that the person responsible on whom notice is served may, within fifteen (15) calendar days of the date of the Notice of Violation, appeal said violation to the appeals hearing body;

5. An order prohibiting the continuation or repeated occurrence of a violation of this code described in the Notice of Violation; and

6. The signature of the citing Enforcement Officer.

C. The Notice of Violation required under this section shall be personally served on the person responsible, or shall be sent by registered or certified United States mail to the property owner at the last known address listed on the most recent Tax Assessor’s records. In the case of service by registered mail or certified mail, service shall be completed at the time of deposit into the United States mail. Where service is by registered mail or certified mail upon the property owner, a copy of the Notice of Violation shall be conspicuously posted at the property which is the subject of the Notice of Violation, for a period of not less than three (3) calendar days prior to the first date that commencement of corrective action or abatement is to be undertaken. The failure of any person to receive a Notice of Violation that was sent via registered or certified mail shall not affect the validity of any enforcement proceedings under this chapter. In the event that the person responsible refuses to accept registered or certified mail, the Enforcement Officer may send the Notice of Violation by regular mail by including a proof of service declaration.

D. The Enforcement Officer shall retain a declaration of the person effecting service, declaring the date, time, and manner that service was made, and the date and place of posting if applicable.

E. The time allowed for correction of a violation shall be a “reasonable time” in the judgment of the Enforcement Officer, based upon the circumstances of the particular violation, taking into consideration the means required to correct the violation, the period of time that the violation has existed, and the potential threat to public health and safety created by the violation.

F. The Enforcement Officer may issue a verbal notice, or an informal written notice, to correct the violation(s). However, if, following a verbal or informal written notice, the violation has not been corrected within the specified time period, the Enforcement Officer shall issue a formal written Notice of Violation.

G. Any recipient of a Notice of Violation may request an appeals hearing to contest that the conditions identified constitute a violation or that they are the person responsible, by completing a “request for hearing form” and returning it to the City Clerk within fifteen (15) days from the date of the Notice of Violation. At the time of returning the request for hearing form to the City Clerk, the person or entity requesting the appeals hearing shall pay an appeals processing fee as established by resolution of the City Council. Failure to pay the appeals processing fee, or make arrangements for the payment of the fee, may result in the hearing being postponed until the payment of such fee.

H. If the recipient of a Notice of Violation does not submit a proper request for an appeals hearing, and does not comply with the Notice of Violation by the specified date, the Enforcement Officer may issue an order to show cause (OSC) in the manner and form described herein, requiring a hearing before the City Council. Any hearing requested under this section, whether an appeals hearing or an OSC hearing, shall be conducted under the procedures set forth below.

I. Any hearing conducted pursuant to this section, whether an appeals hearing requested by a recipient of a Notice of Violation, or pursuant to an OSC, shall be set for a date not less than fifteen (15) days nor more than sixty (60) days from the date that the request for hearing form or OSC is filed in accordance with this section, unless the Enforcement Officer determines that the matter is urgent or that good cause exists for an extension of time, in which case the date for such hearing may be shortened, or extended, as warranted by the circumstances.

J. If the Enforcement Officer issues an OSC, a copy of the OSC shall be served on the responsible person in the manner described in subsection (C) of this section. Where real property is involved, a copy of the OSC, along with a copy of the original Notice of Violation, shall be served on the property owner at the address as it appears on the last Marin County assessment roll available on the date the OSC is prepared. The OSC must contain the date, time, and place at which the hearing will be conducted.

K. Any hearing provided in this section shall provide a full opportunity for the responsible person to appear and object to the determination that a violation has occurred and/or that the violation continues to exist. The failure of any responsible person to appear at a requested appeals hearing or a duly noticed OSC hearing shall constitute a failure by such party to exhaust their administrative remedies, and a waiver of the same.

L. At the place and time set forth in the notice of hearing, the City Council shall conduct a hearing on the Notice of Violation. The City Council shall consider any written or oral evidence regarding the violation that may be presented by the responsible person, any officer or agent of the City, and any other interested party.

M. After receiving all of the evidence presented, the public portion of the hearing shall be closed. The City Council may then consider what action, or actions, if any, should be taken, including the imposition of any fines or penalties.

N. Within thirty (30) days following the conclusion of the hearing, the City Council shall issue written findings and make a determination regarding the existence of the violation and/or the failure of the responsible person to take required corrective action within the specified time period. If the City Council finds by a preponderance of the evidence that a violation occurred, or that a violation was not corrected within the time period specified in the Notice of Violation, the City Council may issue an administrative order, in accordance with subsection (P) of this section. If the City Council finds that no violation occurred or that the violation was corrected within the specified time period, the City Council shall issue a written finding of those facts.

O. The recipient or recipients of a Notice of Violation shall be served with a copy of the decision of the City Council, including an administrative order if one is issued, in the manner and method set forth in subsection (C) of this section.

P. An order of the City Council may impose any, all, or any combination of the following remedies:

1. An order requiring the responsible person to correct or eliminate the nuisance condition, including a proposed schedule for correction or elimination where appropriate;

2. An order authorizing the City to take whatever steps are necessary to correct or eliminate the nuisance condition, including a proposed schedule for correction/elimination, where appropriate;

3. A fine or penalty in an amount not to exceed five hundred dollars ($500.00) per day for each ongoing violation, up to a maximum penalty or fine of ten thousand dollars ($10,000.00) for each violation, exclusive of any amounts imposed for recovery of administrative costs. In determining the amount of fine or penalty to be imposed, the hearing body should consider the factors listed in subsection (R)(4) of this section;

4. An order allowing for recovery of administrative costs. Administrative costs may include costs incurred by the City in connection with the proceeding, including attorneys’ fees, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and the cost of any re-inspection necessary to enforce the order. Such costs, if unpaid, may be recovered by the City through a lien on the property pursuant to Government Code Section 38773.1 or through a special assessment pursuant to Government Code Section 38773.5.

Q. Any person aggrieved by an administrative order of the City Council may obtain review of said administrative order in the Marin County Superior Court by filing with the court a petition for writ of mandate, subject to the conditions described in Larkspur Municipal Code Section 9.24.160.

1. The bail schedule described in Larkspur Municipal Code Section 9.24.080 shall not limit or affect the amount of actual fines or penalties imposed, including any fines and penalties authorized by Government Code Section 36901, nor shall said bail schedule limit or preclude the recovery of any costs incurred by the City in enforcing the provisions of this code or abating any nuisance condition, where the same may be lawfully imposed.

2. Any fine or penalty imposed by the City Council after a hearing pursuant to this section shall be paid to the City within thirty (30) days from the City Council’s decision, unless an extension of time is requested by the responsible person and granted by the Enforcement Officer or City Council.

3. Any appeal processing fee that is paid pursuant to this section shall be refunded to the payee if it is determined, after a hearing, that the person charged in the Notice of Violation was not responsible for the violation or that there was no violation as charged in said notice.

4. Payment of a fine or penalty imposed pursuant to this section shall not excuse or permit any continuation or repeated occurrence of the violation that is the subject of the Notice of Violation.

5. In determining the amount of a fine or penalty to be levied against the responsible person pursuant to this section, the City Council may take the following factors into consideration:

a. The duration of the violation;

b. The frequency, re-occurrence, and number of violations by the same violator;

c. The seriousness of the violation;

d. The justification, if any, for the existence, or continuance, of the violation;

e. The good faith efforts of the violator to mitigate the violation or to come into compliance, pursuant to the terms of the pre-citation notice;

f. The impact of the violation on the community;

g. The economic impact of the proposed penalty or fine on the violator;

h. The factors listed in the Uniform Administrative Code Section 304.5.2; and

i. Such other factors as justice may require.

6. Any fine or penalty imposed pursuant to this section shall accrue from the date specified in the Notice of Violation and shall continue to accrue on a daily basis until the violation is corrected, if so stated in the Notice of Violation. The determination of compliance or elimination of the violation shall be determined by the Enforcement Officer, or the City Council at the time of a hearing. The City Council, in its discretion, may suspend the imposition of any applicable fines or penalties for a period of time not to exceed sixty (60) days during which:

a. The violator has filed for, or obtained, permits necessary for the correction of the violation(s) described in the Notice of Violation; and

b. Such permit applications are actively pending before, or have already been issued by, the City, state, or other appropriate governmental agency.

S. Any penalty or fines assessed by the Enforcement Officer, or the City Council following an appeals hearing, are a debt owed to the City. In addition to all other means of enforcement, any fines, penalties, or order allowing recovery of enforcement costs specified in the order of the hearing body may be enforced as a personal obligation of the responsible person. If the violation is in connection with real property, any fines, penalties, or order allowing recovery of enforcement costs may be enforced by imposition of a lien or special assessment upon the real property. Any lien or special assessment imposed upon the real property shall remain in effect until all of the penalties, fines, interest, and enforcement costs are paid in full. (Ord. 1062 § 14, 2022; Ord. 1040 § 2, 2019)