BILL NUMBER: AB 2613 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 26, 2010
AMENDED IN ASSEMBLY APRIL 7, 2010
INTRODUCED BY Assembly Member Beall
FEBRUARY 19, 2010
An act to amend Sections 25845 and Section
53069.4 of the Government Code, relating to local government.
LEGISLATIVE COUNSEL'S DIGEST
AB 2613, as amended, 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
city, county, or city and county to, after notice and public
hearing, specially assess any fines or penalties not paid after
demand by the local agency city, county, or
city and county 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 city, county, or
city and county 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
attorney's fees in any action, administrative proceeding, or special
proceeding to abate a nuisance. If the ordinance provides for the
recovery of attorney's fees, it shall provide for recovery of
attorney's fees by the prevailing party, rather than limiting
recovery of attorney's fees to the county if it prevails. The
ordinance may limit recovery of 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 attorney's fees. In no action,
administrative proceeding, or special proceeding shall an award of
attorney's fees to a prevailing party exceed the amount of reasonable
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) 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 one or more hearing officers.
SEC. 2. SECTION 1. 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
city, county, or city and county , may by ordinance make
any violation of any ordinance enacted by the local agency
city, county, or city and county subject to an
administrative fine or penalty. The local agency
city, county, or city and county shall set forth by
ordinance the administrative procedures that shall govern the
imposition, enforcement, collection, and administrative review by the
local agency city, county, or city and
county 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 city, county, or
city and county 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 Pursuant to
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 city, county, or city
and county 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 city, county, or city and
county, the city, county, or city and county may, after notice
and public hearing, order the fines or penalties to be specially
assessed against the parcel if the fines or penalties are
related to ordinance violations on the real property upon which the
fines or penalties would be specially assessed . 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 a city, county, or
city and county specially assesses the cost of the
abatement administrative fines or penalties
against the parcel, the agency city, county,
or city and county 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
city, county, or city and county , and include a description of
the real property subject to the lien and the amount of the lien.
(C) If the local agency city, county, or
city and county 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
city, county, or city and county , or any
officer authorized by the local agency city,
county, or city and county to act on its behalf, an
abatement a 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
city, county, or city and county 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
city's, county's, or city and county'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 city, county,
or city and county 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 city's, county's, or city and county'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
city, county, or city and county . Any deposit of the fine
or penalty shall be refunded by the local agency
city, county, or city and county 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
city's, county's, or city and county'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
city, county, or city and county may proceed to
collect the penalty pursuant to the procedures set forth in its
ordinance.