California Assembly Bill AB2613 Amended / Bill

 BILL NUMBER: AB 2613AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 7, 2010 INTRODUCED BY Assembly Member  Saldana   Beall  FEBRUARY 19, 2010 An act to amend  Section   Sections 25845 and  53069.4 of the Government Code, relating to local government. LEGISLATIVE COUNSEL'S DIGEST AB 2613, as amended,  Saldana   Beall  . Local government: fines and penalties: assessments. Existing law authorizes the legislative body of a local agency to make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty, as specified. This bill would authorize a local agency to, after notice and public hearing, specially assess any fines or penalties not paid after demand by the local agency against real property owned by the person owing those fines or penalties. The bill would provide that the assessment may be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary county taxes, and would authorize the local agency to record a lien against the property.  This bill would authorize a local agency to appoint a hearing officer   to hear and decide issues regarding ordinance violations and the imposition of administrative fines and penalties.   Existing law authorizes a board of supervisors to delegate its powers and duties to establish a nuisance abatement procedure to a hearing officer appointed pursuant to specific statutory requirements regarding a county office of county hearing officer.   This bill would authorize a board of supervisors, with respect to nuisance abatement procedures, to appoint a hearing officer without complying with existing statutory requirements regarding county hearing officer.  Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 25845 of the   Government Code   is amended to read:  25845. (a) The board of supervisors, by ordinance, may establish a procedure for the abatement of a nuisance. The ordinance shall, at a minimum, provide that the owner of the parcel, and anyone known to the board of supervisors to be in possession of the parcel, be given notice of the abatement proceeding and an opportunity to appear before the board of supervisors and be heard prior to the abatement of the nuisance by the county. However, nothing in this section prohibits the summary abatement of a nuisance upon order of the board of supervisors, or upon order of any other county officer authorized by law to summarily abate nuisances, if the board or officer determines that the nuisance constitutes an immediate threat to public health or safety. (b) In any action to abate a nuisance, whether by administrative proceedings, judicial proceedings, or summary abatement, the owner of the parcel upon which the nuisance is found to exist shall be liable for all costs of abatement incurred by the county, including, but not limited to, administrative costs, and any and all costs incurred in the physical abatement of the nuisance. Recovery of costs pursuant to this section shall be in addition to and shall not limit any prevailing party's right to recover costs pursuant to Sections 1032 and 1033.5 of the Code of Civil Procedure or any other provision of law. (c) A county may, by ordinance, provide for the recovery of  attorneys'   attorney's  fees in any action, administrative proceeding, or special proceeding to abate a nuisance. If the ordinance provides for the recovery of  attorneys'   attorney's  fees, it shall provide for recovery of  attorneys'   attorney's  fees by the prevailing party, rather than limiting recovery of  attorneys'   attorney's  fees to the county if it prevails. The ordinance may limit recovery of  attorneys'   attorney's  fees by the prevailing party to those individual actions or proceedings in which the county elects, at the initiation of that individual action or proceeding, to seek recovery of its own  attorneys'   attorney's  fees. In no action, administrative proceeding, or special proceeding shall an award of  attorneys'   attorney's  fees to a prevailing party exceed the amount of reasonable  attorneys'   attorney's  fees incurred by the county in the action or proceeding. (d) If the owner fails to pay the costs of the abatement upon demand by the county, the board of supervisors may order the cost of the abatement to be specially assessed against the parcel. The assessment may be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are applicable to the special assessment. (e) If the board of supervisors specially assesses the cost of the abatement against the parcel, the board also may cause a notice of abatement lien to be recorded. The notice shall, at a minimum, identify the record owner or possessor of property, set forth the last known address of the record owner or possessor, set forth the date upon which abatement of the nuisance was ordered by the board of supervisors and the date the abatement was complete, and include a description of the real property subject to the lien and the amount of the abatement cost. (f) However, if the board of supervisors does not cause the recordation of a notice of abatement lien pursuant to subdivision (e), and any real property to which the costs of abatement relates has been transferred or conveyed to a bona fide purchaser for value, or a lien on a bona fide encumbrancer for value has been created and attaches to that property, prior to the date on which the first installment of county taxes would become delinquent, then the cost of abatement shall not result in a lien against that real property but shall be transferred to the unsecured roll for collection. (g) Recordation of a notice of abatement lien pursuant to subdivision (e) has the same effect as recordation of an abstract of a money judgment recorded pursuant to Article 2 (commencing with Section 697.310) of Chapter 2 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure. The lien created has the same priority as a judgment lien on real property and continues in effect until released. Upon order of the board of supervisors, or any county officer authorized by the board of supervisors to act on its behalf, an abatement lien created under this section may be released or subordinated in the same manner as a judgment lien on real property may be released or subordinated. (h) The board of supervisors may delegate the hearing required by subdivision (a), prior to abatement of a public nuisance, to a hearing board designated by the board of supervisors. The hearing board shall make a written recommendation to the board of supervisors. The board of supervisors may adopt the recommendation without further notice of hearing, or may set the matter for a de novo hearing before the board of supervisors. (i)  The   Notwithstanding Chapter 14   (commencing with Section 27720) of Part 3 of Division 1 of Title 3, the  board of supervisors may, by ordinance, delegate  the powers and duties specified by this section  to  a   one or more  hearing  officer appointed pursuant to Section 27720 the powers and duties specified by this section.   officers.   SECTION 1.   SEC. 2.  Section 53069.4 of the Government Code is amended to read: 53069.4. (a) (1) The legislative body of a local agency, as the term "local agency" is defined in Section 54951, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in subdivision (b) of Section 25132 and subdivision (b) of Section 36900. (2)  (A)    The administrative procedures set forth by ordinance adopted by the local agency pursuant to paragraph (1) shall provide for a reasonable period of time, as specified in the ordinance, for a person responsible for a continuing violation to correct or otherwise remedy the violation prior to the imposition of administrative fines or penalties, when the violation pertains to building, plumbing, electrical, or other similar structural or zoning issues, that do not create an immediate danger to health or safety.  (B) Notwithstanding Chapter 14 (commencing with Section 27720) of Part 3 of Division 1 of Title 3, the administrative procedures adopted by ordinance pursuant to paragraph (1) may authorize the appointment of one or more hearing officers to hear and decide issues regarding ordinance violations and the imposition of administrative fines or penalties.   (C) A local agency may, by ordinance, combine the administrative procedures adopted pursuant to paragraph (1) with nuisance abatement procedures adopted by ordinance pursuant to Section 25845.  (3) (A) If the owner of real property fails to pay the fines or penalties upon demand by the local agency, the local agency may, after notice and public hearing, order the fines or penalties to be specially assessed against the parcel. The assessment may be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary county taxes. All laws applicable to the levy, collection, and enforcement of county taxes are applicable to the special assessment. (B) If the local agency specially assesses the cost of the abatement against the parcel, the agency also may cause a notice of abatement lien to be recorded. The notice shall, at a minimum, identify the record owner or possessor of property, set forth the last known address of the record owner or possessor, set forth the date upon which assessment was ordered by the local agency, and include a description of the real property subject to the lien and the amount of the lien. (C) If the local agency does not cause the recordation of a notice of lien pursuant to subdivision (B), and any real property on which the assessment has been imposed has been transferred or conveyed to a bona fide purchaser for value, or a lien on a bona fide encumbrancer for value has been created and attaches to that property, prior to the date on which the first installment of county taxes would become delinquent, then the assessment shall not result in a lien against that real property but shall be transferred to the unsecured roll for collection. (D) Recordation of a notice of abatement lien pursuant to subparagraph (B) has the same effect as recordation of an abstract of a money judgment recorded pursuant to Article 2 (commencing with Section 697.310) of Chapter 2 of Division 2 of Title 9 of Part 2 of the Code of Civil Procedure. The lien created has the same priority as a judgment lien on real property and continues in effect until released. Upon order of the local agency, or any officer authorized by the local agency to act on its behalf, an abatement lien created under this section may be released or subordinated in the same manner as a judgment lien on real property may be released or subordinated. (b) (1) Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, within 20 days after service of the final administrative order or decision of the local agency is made pursuant to an ordinance enacted in accordance with this section regarding the imposition, enforcement or collection of the administrative fines or penalties, a person contesting that final administrative order or decision may seek review by filing an appeal to be heard by the superior court, where the same shall be heard de novo, except that the contents of the local agency's file in the case shall be received in evidence. A proceeding under this subdivision is a limited civil case. A copy of the document or instrument of the local agency providing notice of the violation and imposition of the administrative fine or penalty shall be admitted into evidence as prima facie evidence of the facts stated therein. A copy of the notice of appeal shall be served in person or by first-class mail upon the local agency by the contestant. (2) The fee for filing the notice of appeal shall be as specified in Section 70615. The court shall request that the local agency's file on the case be forwarded to the court, to be received within 15 days of the request. The court shall retain the fee specified in Section 70615 regardless of the outcome of the appeal. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the local agency. Any deposit of the fine or penalty shall be refunded by the local agency in accordance with the judgment of the court. (3) The conduct of the appeal under this section is a subordinate judicial duty that may be performed by traffic trial commissioners and other subordinate judicial officials at the direction of the presiding judge of the court. (c) If no notice of appeal of the local agency's final administrative order or decision is filed within the period set forth in this section, the order or decision shall be deemed confirmed. (d) If the fine or penalty has not been deposited and the decision of the court is against the contestant, the local agency may proceed to collect the penalty pursuant to the procedures set forth in its ordinance.