Several years ago, the City of San Diego wanted out of just such a morass. Budget cuts continued to reduce code enforcement staffing levels and the number of Deputy City Attorney's assigned to code enforcement. This increased each investigator's case load and forced the City Attorney to return a large number of low priority cases unprosecuted. The City Attorney also found it necessary to restrict the types and numbers of cases they could accept for prosecution. Code Enforcement Officials were left with a large backlog of cases, many of which had little hope of resolution without legal assistance.
Fortunately, a new set of options was on the horizon. At the request of the City Council, the City Attorney's Code Enforcement Unit began developing a set of administrative remedies for use by code enforcement officers. The remedies included abatements, civil penalties, administrative citations, recorded notices of violation, and mediation. These administrative remedies were designed to allow code enforcement officers more flexibility in gaining compliance and give code enforcement agencies a chance to pursue certain cases without having to submit them to the City Attorney for prosecution.
The implementing ordinance for these remedies was enacted in 1990, staff training and field testing began shortly after its passage. The remedies have been an integral part of San Diego's code enforcement efforts ever since. Looking back, administrative remedies have been an outstanding success. Hundreds of old backlogged cases have been closed out that would otherwise still be there, draining energy and resources. Penalties and costs have been recovered and provided funding for new technology and equipment. Overall case submission to the City Attorney has been reduced, allowing the Code Enforcement Unit's staff to give more attention to the high priority cases they still receive. Administrative remedies have changed the way the City of San Diego looks at code enforcement. The following paragraphs describe each remedy, how it is used, advantages and disadvantages, and any intended changes for the future.
Hearing notices are sent to all persons responsible for the violation with a copy to the hearing officer. Evidence packets containing copies of the administrative notice (i.e. citation, civil penalty notice and order) as well as a case chronology, photographs and other correspondence are included with the hearing notice.
At the hearing, administrative hearing officers review the enclosed evidence packets and any other evidence provided by the responsible party(ies). Testimony is heard from both sides. If required the hearing officer may subpena witnesses, documents or other necessary evidence. The hearing officer will then close the hearing and issue and an administrative enforcement order within ten days. The administrative enforcement order may affirm, dismiss or modify the administrative notice issued by the City. No further administrative appeals are allowed. Appeals of administrative enforcement orders, however, may be made to the Superior Court of San Diego County.
The majority of abatements are administrative. Here the property owner is given a notice with a time-frame (usually ten days) for compliance. If the property owner does not abate the nuisance within the specified time-frame a hearing is scheduled. If the hearing officer confirms the violations a city crew may then go in and abate the nuisance.
Whenever a Department Director determines that conditions on a property constitute an imminent threat to public health and safety, the Director may order a summary abatement. City crews then take minimal steps to abate the threat without giving prior notice to the owner. No hearing is required.
The great advantage in using abatement orders is the speed with which you can correct the problem. Administrative abatements can be accomplished with a single notice and hearing. Court ordered abatements generally require much more time and paperwork. The disadvantage in using abatements is the initial outlay in cost. The average abatement costs between $3000 and $4000. The City must pay this to its crew and then place a lien on the property to recover the cost of the abatement. The City of San Diego conducts approximately 100 abatements a year. The vast majority are administrative abatements and are split evenly between board and secure or excessive storage cases.
At the hearing, the hearing officer can affirm, dismiss, or modify the penalty amount and set a schedule for compliance. Often, staff representatives will suggest a "carrot and stick" approach in modifying the notice and order by requesting the hearing officer to suspend a large portion of the penalty if the responsible parties comply within a short time-frame. This approach has proven to be very successful and is popular with most hearing officers.
The advantage of using civil penalty notices is usually a quick response from the violator. The penalties can be quite large and the notices command attention. Statistics have varied over the years but we have achieved compliance rates of better than 80% after issuing a notice. Hearings average about 35 per year and penalties are awarded in almost all cases. Penalty awards range between $2000 to $35,000.
Appeal of civil penalty awards to Superior Court has been minimal. To date, five cases have been appealed and none of the hearing officers decisions have been overturned. The disadvantage in using civil penalties occurs when someone fails to pay and the City must initiate a collection action. Those who fail to pay and comply must then be referred to the City Attorney's Code Enforcement Unit for prosecution.
The citations are issued sequentially, first a warning is issued threatening a fine for non-compliance. Failure to comply results in a $100 citation, further non-compliance can result in a second citation of $250 or even a third citation for $500. The citations are similar to parking citations and do not go to court. They are appealable to an administrative hearing officer who may affirm, waive, or conditionally reduce the amount of fine.
The advantages of administrative citations are similar to those gained using civil penalties. Most people comply after receiving the first citation. In addition, citations bring in revenue. The City of San Diego issues approximately 1000 administrative citation warnings per year and about 350 monetary citations. Approximately 25% of all monetary citations are appealed. The disadvantages are also the same as in a civil penalty action. If a person fails to comply or pay, another remedy must be chosen and cost recovery must be initiated.
In order to remove the recorded notice the property owner must correct the violation and then pay the city a cost recovery fee based upon the average cost of investigating the case. Current fees range between $585 and $605. It has been our experience that most of these cases are brought into compliance just prior to a property transfer or sale. Lending institutions have refused to lend on properties in violation and require compliance before the close of escrow. In this sense recorded cases have been somewhat "self-policing".
This self-policing aspect is one of the big advantages of recordation, the City can close the case with some assurance that the violation will not last forever. In certain cases, building permits can also be withheld from recorded properties, adding an extra measure of confidence. Recordation also puts new owners on notice that a violation exists, allowing code enforcement to avoid the "revolving case syndrome" common to some rental properties.
The disadvantage in recording a notice is the uncertainty of time. The violation will be corrected at some time, but it cannot be pinpointed and in some cases may be years away. It is for this reason that the remedy is used only in minor cases. The City of San Diego records approximately 120 notices of violation a year, about 10% of these are appealed.
The advantage of mediation is that it allows the resolution of cases that are not always appropriate for court. The disadvantage is that the mediation agreements are non-binding. If a mediation agreement fails to hold up, another remedy must be chosen. The City of San Diego process approximately 70 mediation per year.
Each of the remedies has added a tremendous amount of flexibility and leverage to the City of San Diego's code enforcement process. Remedies can be tailored to individual cases and can provide a much quicker response. Looking forward, we can see nothing but continued and expanding success.