County of Sutter

Office of the County Administrator
1160 Civic Center Boulevard Yuba City, California 95993 Phone: (530) 822-7100 Fax: (530) 822-7103

June 19,2012 TO: SUBJECT: Board of Supervisors Introduction and First Reading of Ordinances Regarding Medical Marijuana Cultivation and Administrative Penalties

Recommendation: It is recommended that the Board of Supervisors: 1. Introduce an ordinance adding Sutter County Ordinance Code Chapter 410 related to medical marijuana cultivation. 2. Introduce an ordinance adding Chapter 87 to the Sutter County Ordinance Code pertaining to the procedures for imposing administrative penalties. 3. For both ordinances, waive the full reading, direct the Clerk to read the title only, and continue the items to July 24, 2012, for adoption. BackgroundlDiscussion: In November 1996, California voters passed Proposition 215, the Compassionate Vse Act of 1996 Proposition 215 Exempts patients and caregivers who possess or cultivate marijuana pursuant to a recommendation by a physician from prosecution under California law. SB 420 (Chapter 875, Statutes of2003), also known as the Medical Marijuana Program Act (MMPA) led to the establishment of guidelines set by the State Attorney General to ensure the security and nondiversion of marijuana grown for medical use.
(CVA).

Over the years, conflicts have developed between medical marijuana growers and their neighbors. Because the plant has an unattractive "skunky" odor, the County receives numerous complaints each year at harvest time from neighbors who believe that they cannot avoid the offensive odor. In addition, some residents believe that the street market value of the plant brings the potential for crime and vandalism to their neighborhoods. On the other hand, medical marijuana growers believe that they need to grow marijuana to treat their ailments. AB 1300 (Chapter 196, Statutes of2011) affirms that none of the provisions in the CVA or MMPA

GO
JUN 1 9 2012

Introduction and First Reading of an Ordinance Regarding Medical Marijuana Cultivation For the Board Meeting of June 19,2012 Page 2

prevent a local governing body from establishing local ordinances to regulate the location, operation, or enforcement of a medical marijuana collective or cooperative. Local government can enforce a medical marijuana ordinance through civil or criminal remedies. Local governments may enact other laws which are consistent with the MMP A. On May 15,2012, your Board held a study session regarding medical marijuana. At that time, staff presented a draft nuisance abatement ordinance which would address medical marijuana cultivation. The proposed ordinance, modeled after Tehama County's ordinance, has the following provisions: • Establishes setback requirements for marijuana plants and limits on the size of the crops to avoid conflicts with neighbors: o On parcels of less than 20 acres in size, marijuana plants must be 100 feet or more from the property line. Marijuana grows are limited to 12 mature or 24 immature plants. o On parcels of 20-160 acres, the setback requirement is 300 feet. Marijuana grows are limited to 30 mature or 60 immature plants. o On parcels of more than 160 acres in size, the setback requirement is 1,000 feet. Marijuana grows are limited to 99 plants, either mature or immature. o There is no distinction between indoor and outdoor grows. The pnmary regulation is the setback requirement. Marijuana grows may not be located within 1,000 feet of places where children congregate: schools, school bus stops, child care centers, churches, parks, school evacuation sites, or other youth-oriented facilities. The person in charge of the premises must register the premises with the Community Services Department. Renters need authorization from their landlords. The County Health Department will begin issuing medical marijuana 1D cards.

• •

If a location is found to be in violation, the process to abate the nuisance would be as follows: • • • The violators will receive a notice of abatement. violation within five days. The owner must abate or appeal the

If the violator requests an appeal, the appeal must be heard within 5-15 days after the appeal was filed. The hearing officer's decision will be final. If the owner or occupant doesn't abate the nuisance or appeal the violation within five days, the enforcing officer may choose to abate the nuisance at the owner's expense. The County could also choose to file a civil action or impose administrative penalties (i.e., fines).

I

..

Introduction and First Reading of an Ordinance Regarding Medical Marijuana Cultivation For the Board Meeting of June 19, 2012 Page 3

If the violation constitutes an immediate tlueat to public health or safety, abatement may occur immediately without regard to the timeframes mentioned above.

It is important to note that the proposed ordinance does not attempt to legalize or permit marijuana to be grown, nor does it prohibit marijuana from being grown. The proposed ordinance is a public nuisance ordinance, which specifies that if marijuana is cultivated outside of specific parameters, its cultivation will be declared a public nuisance which needs to be abated. During the May 15th study session, a number of issues were raised for future discussion. these will be addressed in turn below. Each of

Distinction between Urban and Rural Areas
During the study session, several speakers urged for recognition of the differences between urban and rural areas of the County. The proposed ordinance does just that. The regulations are strictest in the most urban areas of the County where lots are smallest and the potential for neighbor vs. neighbor conflicts are the greatest. In drafting this ordinance, County staff used the format and limitations contained in the ordinance adopted by Tehama County. The Tehama County ordinance was chosen as a model because it has successfully withstood a legal challenge in Superior Court.

Aligning Sutter County Ordinance to Yuba City's Ordinance
It was suggested during the study session that the Sutter County ordinance be aligned with the recently-adopted Yuba City ordinance so that residences on the periphery of Yuba City boundaries will not be faced with two different sets of laws in nearby neighborhoods. This option was not incorporated into the revised ordinance before you today for several reasons. First, regardless of how the ordinance is written, the Sutter County Sheriffs Office will be enforcing three different ordinances in the County. As the contract provider of police services for the City of Live Oak, the Sheriff follows the Live Oak's ordinances within the boundaries of that city. As the provider of police services for the City of Yuba City in the "south beat" area south of Franklin Road, the Sheriff follows Yuba City's ordinance in that area. Sutter County currently has no regulations regarding marijuana cultivation in the unincorporated area, so the Sheriff is already bifurcated by enforcing one set of rules within the boundaries of Yuba City and a lack of regulations in nearby unincorporated neighborhoods. Residents on the periphery of Yuba City are already familiar with differing regulations between Yuba City and the County for provision of water service, garbage pick-up, and marijuana cultivation, among other issues. If the Sutter County ordinance were to impose one set of regulations on the periphery of Yuba City and another for the rural areas, the Sheriff would still be enforcing three different sets of regulations.

,

..

Introduction and First Reading of an Ordinance Regarding Medical Marijuana Cultivation For the Board Meeting of June 19, 2012 Page 4

Yuba City's ordinance is quite different from Sutter County's proposed ordinance because it prohibits all outdoor grows, requiring costly indoor facilities for marijuana cultivation. Yuba City's ordinance has not been court-tested as the Tehama County ordinance has been, so it could be the subject of litigation in the future. In addition, it was adopted only as a temporary emergency ordinance and is subject to change. Staff does not recommend modeling the Sutter County ordinance on Yuba City's because of these factors.

Adding Fines (i.e.,Administrative Penalties) as Another Option/or Addressing Violations
The original version of the proposed ordinance did not include fines as an option for addressing violations because staff believed that the emphasis should be on quickly abating the nuisance. Because of the high street value of marijuana crops, a fine may not bring about the desired results in a timely manner. In the meantime, the complaining neighbor is still forced to contend with the problems of hislher neighbor's crop. The 5-day limitation to abate the nuisance of file an appeal, and then the short period of time for the County to conduct an appeal hearing, was intended to settle the matter in a timely manner. Nevertheless, fines were added to the revised proposed ordinance as an alternate tool for addressing the issue. Fines will be another method available to address violations. Because of this, we are also introducing a companion ordinance today, which would add Chapter 87 to the Sutter County Code to allow the general imposition of Administrative Penalties. Chapter 87 could then be used for other areas of code enforcement where the imposition of fines would be a desirable tool to have available.

Time Limitations/or Addressing Violations
As mentioned above, if a violation is found, the County will send a Notice of Violation to the property owner and to the resident, if applicable. The violator will then have five days to either abate the nuisance of file an appeal. The appeal hearing must take place within 5-15 days after the appeal is filed. These tight timeframes were deliberately included in the proposed ordinance so that the problem could be addressed quickly, rather than allowing tensions between neighbors to smolder. The timeframes could be extended, but staff does not recommend making such revisions. Prior Board Action: Your Board held a study session regarding medical marijuana cultivation on May 15, 2012. In addition, your Board held a public hearing to consider instituting a program to issue medical marijuana identification cards on April 6, 2010. Your Board adopted a zoning ordinance in January

----------

,

..

-------------------------------------------Introduction and First Reading of an Ordinance For the Board Meeting of June 19,2012 Regarding Medical Marijuana Cultivation Page 5

1996 which prohibits the establishment of medical marijuana dispensaries anywhere within the County. Alternatives: Your Board could enact any number of revisions to the proposed ordinance, many of which are discussed above. In addition, your Board could choose to take no action. Other Department and/or Agency Involvement:

The proposed ordinance was developed in consultation with the Sheriffs Office, the District Attorney, the Community Service Department, the Human Services Department, and County CounseL Action Following Approval: The two ordinances would be brought back before your Board for a second reading and final adoption on July 24,2012. Fiscal Impact: The fiscal impact of the proposed ordinance is impossible to predict at this point in time. It depends upon how many complaints are received, how many of the complaints are found to be violations, and how the violations are ultimately addressed. The Tehama County Sheriff reports that, following the adoption of their ordinance and subsequent public education, he has not had to abate any nuisances. Respectfully submitted,

,.~-~j~----' ---~
STEP

'/)/'\_.. ;r, I ~""~
ANIE J. LARSEN

-a~7)-:)' <2/)6,2,'
/,-~/ -----

County Administrative Officer

Attachments (2): I. Proposed Marijuana Cultivation Ordinance 2. Proposed Administrative Penalties Ordinance

c

J. Paul Parker, Sheriff
Danelle Stylos, Community Services Director Tom Sherry, Human Services Director Carl Adams, District Attorney

·

'

ORDINANCE NO. AN ORDINANCE OF THE COUNTY OF SUTTER AMENDING THE SUTTER COUNTY ORDINANCE CODE BY ADDING CHAPTER 410 PERTAINING TO MARIJUANA CULTIVATION

THE BOARD OF SUPERVISORS OF THE COUNTY OF SUTTER ORDAINS AS FOLLOWS: SECTION 1: The Sutter County Ordinance Code is amended by adding Chapter 410 to read, in its entirety, as follows:

Chapter 410
MARIJUANA SECTIONS: 410-010 410-020 410-030 410-040 410-050 410-060 410-070 410-080 410-090 410-100 410-110 410-120 410-130 410-140 410-150 410-160 410-170 410-180 410-190 410-200 410-200 410-210 410-220

CtILTIV ATION

Authority and Title Findings and Purpose Definitions Nuisance Declared Notice to Abate Unlawful Marijuana Cu Notice

or Occupant

Notice ofHearin:g on Accounting; Waiver by Payment Hearing on Ac~~ng Modifications,~~ Special Assessment and Lien Enforcement by Civil Action Summary Abatement No Duty to Enforce Remedies Cumulative Other Nuisance Compliance with Other Laws Severability

410-010

AUTHORITY AND TITLE

Pursuant to the authority granted by Article XI, section 7 of the California Constitution, Health and Safety Code section 11362.83, and Government Code section 25845, the Board of Supervisors does enact this Chapter, which shall be known and may be cited as the "Sutter County Marijuana Cultivation Ordinance."

,

.

410-020

FINDINGS AND PURPOSE

The Board of Supervisors of the County of Sutter hereby finds and declares the following: (A) In 1996, the voters of the State of California approved Proposition 215 (codified as California Health and Safety Code section 11362.5, and entitled "The Compassionate Use Act of 1996"). (B) The intent of Proposition 215 was to enable p~~llS who are in need of marijuana for medical purposes to use it without fear of . under limited, specified circumstances. The Proposition further provides that his section shall be construed to supersede legislation prohibiting persons from that endangers others, or to condone the diversion of marijuana for non-medical purposes." . ballot arguments supporting Proposition 2 I5 expressly acknowledged that "Proposition 215 does ... allow unlimited quantities of marijuana to be grown anywhere." (C) In 2004, the Legislature enacted Senate Bill 420 (codified as California Health and Safety Code sections 11362.7 et seq.lto clarify the scope of Proposition 215, and to provide qualifying patients and primary caregivers who collectively or cooperatively cultivate marijuana for medical purposes with a limited defense to certain specified State criminal statutes. (D) Health and Safety Code section 1136~.83expressly adopt and enforce ordinances that are consistent wi.~$enate.i.1l420.
,'."
i ~~;._':. ,

allows Cities and Counties to

...

(E) The federal Controlled Subst . Act, 21 V.S.c. §§ 801 et seq., classifies marijuana as I Drug, which is defin s a drug or other substance that has a high potential has no currently accepted .. ieal use in treatment in the United States, and as safe for use under edical supervision. The Federal Controlled under federal law, for any person to cultivate, manufacture, distribute or poSS¢s:with intent to manufacture, distribute or dispense, marijuana. The Federal Substances.Act contains no exemption for the cultivation, manufacture, distribution, ~lno:n. or possession of marijuana for medical purposes. (F) The County's unique geographic and climatic conditions, which include sparse population in many areas of the County, provide conditions that are favorable to marijuana cultivation. Marijuana growers can achieve a high per-plant yield because of the County's favorable growing conditions. The federal Drug Enforcement Administration reports that various types of marijuana plants under various planting conditions may yield averages of 236 grams, or about one-half pound, to 846 grams, or nearly two pounds. Based on law enforcement seizures, yields in Sutter County have tended to be at the higher end of this range. The "street value" of a single cannabis plant is substantial. Pound prices for domestically produced high-grade cannabis sold illegally within Northern California can reach $2,000 to $5,000. A single marijuana plant cultivated within the County can thus yield $4,000 or more in salable marijuana. (G) Proposition 215 and Senate Bill 420 primarily address the criminal law, providing qualifying patients and primary caregivers with limited immunity from state criminal prosecution under certain identified statutes. Neither Proposition 215 nor Senate Bill 420, nor the Attorney

General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use adopted pursuant to Senate Bill 420, provides comprehensive civil regulation of premises used for marijuana cultivation. The unregulated cultivation of marijuana in the unincorporated area of Sutter County can adversely affect the health, safety, and well-being of the County and its residents. Comprehensive civil regulation of premises used for marijuana cultivation is proper and necessary to avoid the risks of criminal activity, degradation of the natural environment, malodorous smells, and indoor electrical fire hazards that may result from unregulated marijuana cultivation, and that are especially significant if the amount of marijuana cultivated on a single premises is not regulated and substantial amounts of marijuana are thereby allowed to be concentrated in one place. (H) Cultivation of any amount of marijuana at locations or premises within 1,000 feet of schools. school bus stops, school evacuation sites, churches, parks, child care centers, or youthoriented facilities creates unique risks that the plants may be observed by juveniles, and therefore be especially vulnerable to theft or consumption by juveniles. Further, the potential for criminal activities associated cultivation in such locations poses heightened risks that juveniles will be . Therefore, cultivation of any amount of marijuana in such locations or hazardous to public safety and welfare, and to the protection of children and the . the marijuana plants. (I) As recognized by the Attorney General's August 2008 Guidelines for the Security and Non-Diversion of Marijuana Grownfor Medical Use, the cul~ivation or other concentration of marijuana in any location or premises without adequate security increases the risk that surrounding homes or businesses lll8;)' be negatively impacted by nuisance activity such as loitering or crime. (J) It is the~se and itatent of this Chapter to implement State law by providing a means for regulating the cttiijvation ofmedical marijuana in a manner that is consistent with State law and which balances the n_of med~'!ltients and their caregivers and promotes the health, safety, and welfare of the resic.tems and b~sses within the unincorporated territory of the County of Sutter. This Chapter is int~ded to be consistent with Proposition 215 and Senate Bill 420, and towards that end, is not inte to prohibit persons from individually, collectively, or cooperatively exercising any right othe granted by State law. Rather, the intent and purpose of this Chapter is to establish reasonable regulations upon the manner in which marijuana may be cultivated, including restrictions on the amount of marijuana that may be individually, collectively, or cooperatively cultivated in any location or premises, in order to protect the public health, safety, and welfare in Sutter County. (K) The limited right of qualified patients and their primary caregivers under State law to cultivate marijuana plants for medical purposes does not confer the right to create or maintain a public nuisance. By adopting the regulations contained in this Chapter, the County will achieve a significant reduction in the aforementioned harms caused or threatened by the unregulated cultivation of marijuana in the unincorporated area of Sutter County. (L) Nothing in this ordinance shall be construed to allow the use of marijuana for nonmedical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under State or federal law. No provision of this Chapter shall be deemed a defense or immunity to any action brought against any person by the Sutter County District Attorney, the Attorney General of State of California, or the United States of America.

410-030

DEFINITIONS

Except where the context otherwise requires, the following definitions shall govern the construction of this Chapter: (A) "Administrative Hearing Officer" means an individual appointed by the Board of Supervisors pursuant to California Government Code Section 27720, et seq. for the purpose conducting hearings for the county. Said individual shall be an attorney at law who has been admitted to practice before the courts of the State of California for at least five years prior to appointment. The Administrative Hearing Officer shall he authorized to decide a matter upon which a hearing has been held pursuant to California Government Code Section 27721 and shall render a written decision, including any findings or conclusions required for that decision, and submit the decision and the record to the c_k of the Board of Supervisors. "Child Care Center" means any licensed child care center, daycare center, or childcare home, or any preschool. "Church" means a structure or leased portion ofa structure, which is used primarily for religious worship and related religious activiti~.: the planting, growing, harvesting, drying, processing, or marijuana plants or any part thereof in any location, indoor within a fully enclosed and secure building. "Enforcing O:ffmer" means the Community Services Director or the Sheriff, or the authorized deputies or designees of either, each of whom is independently authorized to enforce this Chapter. "Legal parcel" means any parcel of real property that may be separately sold in compliance with the Subdivision Map Act (Division 2 (commencing with Section 66410) of Title 7 of the Government Code). "Marijuana plant" means any mature or immature marijuana marijuana seedling, unless otherwise specifically provided herein. (1) plant, or any

(8)

(C)

(D)

(E)

(F)

(G)

"Immature Marijuana Plant" means a marijuana plant with no observable flowers or buds. "Mature Marijuana Plant" means a marijuana plant which has flowers or buds that are readily observable by an unaided visual examination.

(2)

(H)

"Premises" shall mean a single, legal parcel of property. Where contiguous legal parcels are under common ownership or control, such contiguous legal parcels shall be counted as a single "premises" for purposes of this Chapter.

-----------------

------------------------------"Primary caregiver" shall have the meaning set forth in Proposition 215 and Senate Bill 420. "Qualified patient" shall have the meaning set forth in Proposition 215 and Senate Bill 420. "School" means an institution of learning for minors, whether public or private, offering a regular course of instruction required by the California Education Code. This definition includes a nursery school, kindergarten, elementary school, middle or junior high school, senior high school, or any special institution of education, but it does not include a home school, vocatio~(jIt'professional institution of higher education, including a community or juni , college, or university.
.
:;-;;!;!

(I)

(1)

(K)

"1;1;

(L)

"School Bus Stop" means any location designate._.ftccordance with California Code of Regulations, Title 13, section 1238, to receive:.,~ool buses, as defined in California Vehicle Code section 233, or school pupil activity buses, as defined in Vehicle Code section 546. "School Evacuation Site:" means any location designated by formal action of the governing body, Supe~t, or principal of any school as a location to which juveniles are to be evacuated to', or are to assemble at, in the event of an emergency or other incident at the school. "Youth-oriented facility" me~ anytadHity lilat caters to or provides services primarily intended for minojs, ..•pr the indiViduals who regularly patronize, congregate or assemble at the estati:$hment are predominantly minors.

(M)

(N)

more than the following number of marijuana plants, either is hereby declared to be unlawful and a public nuisance that Chapter: (l)'frthe prt;l~ses is twenty (20) acres in size or less, no more than 12 mature marijuana plants or 24 i~~ marijuana plants shall be cultivated on the premises. If both mature and immature marijuana plants are cultivated on the premises, there shall be no more than 12 mature marijuana plants and no more than 24 total marijuana plants. (2) If the premises is greater than twenty (20) acres in size but less than one hundred and sixty (160) acres in size, no more than 30 mature marijuana plants or 60 immature marijuana plants shall be cultivated on the premises. If both mature and immature marijuana plants are cultivated on the premises, there shall be no more than 30 mature marijuana plants and no more than 60 total marijuana plants. (3) If the premises is one hundred and sixty (160) acres or greater in size, no more than 99 marijuana plants, whether mature or immature, shall be cultivated on the premises.

The foregoing limitation shall be imposed regardless of the number of qualified patients or primary caregivers residing at the premises or participating directly or indirectly in the cultivation. Further, this limitation shall be imposed notwithstanding any assertion that the person(s) cultivating marijuana are the primary caregiver(s) for qualified patients or that such person(s) are collectively or cooperatively cultivating marijuana. (B) The cultivation of marijuana, in any amount or quantity, either indoors or outdoors, upon any premises located within one thousand (1,000) feet of any school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility is hereby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter. (I) Except as provided in Subdivision (B)(2), such distance shall be measured in a straight line from the boundary line of the premises upon which marijuana is cultivated to the boundary line of the premises upon which the 1, school bus stop, school evacuation site, church, park, child care center, or youth-oriente rty is located. (2) If the premises is twent~(~J acres orgreater in size, then such distance shall be measured in a straight line from the buildi.in w~the marijuana is cultivated, or, if the marijuana is cultivated in an outdoor area, from th .. quired by Subdivision (c)(3), to the boundary line of the premises upon which the school, I bus stop, school evacuation site, church, park, child care center, or youth-oriented facility ised. (C) The cultiva.ti04lof marijuana, in any amount or quastity, either indoors or outdoors, upon any premises is heFeby declared to be unlawful and a public nuisance that may be abated in accordance with this Chapter, unless all of the following conditions are satisfied: (I) Thep~onf~t~g, leasing, occupying, or having charge or possession of any premises have registerw:~prerni~& with the Sutter County Department of Community Services, and provided all oflfe following-current information. and documentation to the Community Services Department: . (a) The name~each charge or possession of the premises; person, owrung, leasing, occupying, or having

(b) The name of each qualified patient or primary caregiver who participates in the cultivation, either directly or by providing reimbursement for marijuana or the services provided in conjunction with the provision of that marijuana; (c) A copy of the current valid medical recommendation (or a verified statement that an oral recommendation has been issued by an identified doctor) or State-issued medical marijuana card for each qualified patient identified as required above, and for each qualified patient for whom any person identified as required above is the primary caregiver; (d) The number of marijuana plants cultivated on the premises; and

Services Department Chapter.

(e) Such other information and documentation as the Community determines is necessary to ensure compliance with State law and this

This information and documentation shall be received in confidence, and shall be used or disclosed only for purposes of administration or enforcement of this Chapter or State law, or as otherwise required by law. This information shall not be voluntarily shared with any other governmental agencies unless compelled by law. The Board of Supervisors may, by Resolution, establish a fee for such registration in accordance with all applicable legal requirements. (2) lfthe person(s) cultivating marijuana on any legal parcel is/are not the legal owner(s) of the parcel, such person(s) shall submit a notarized letter from the legal owner(s) consenting to the cultivation of marijuana on the parcel. This letter shall be examined by Community Services Department, and shall then be returned to the submitter. The Community Services Department shall prescribe forms for suchlt::tters. (3) All marijuana grown outside of any building must be fully enclosed by an opaque fence at least six (6) feet in height. 'Fhe fence must be adequately secure to prevent unauthorized entry. Bushes or hedgerows shall net constitute an adequate fence under this Subdi vision. (4) Each building or outdoor area in wlu~~~e marijuana is cultivated shall be set back from the boundaries of the premises as follows: ..... ~ ....•..
"'UJU",,,,",

building or area enforcing officer or finding of unu

is twenty (20) acres in size or less, each cultivation 100 feet from all boundaries of the premises, unless the reduces or waives this requirement based upon a

. -:.. . .(b) . Iftnepremises is'~ater than twenty (20) acres in size but less than one huit.~ and sixty (rOO) acresiasize, each cultivation building or area shall be set back at least 300 reeffrom all boundaries of the premises.
...... (c) If the premises is one hundred and sixty (160) acres or greater in size, each cultivati6,:~uilding o~irea shall be set back at least 1,000 feet from all boundaries of the premises. ... .. Such:~b~ck distance shall be measured in a straight line from the building in which the marijuana is cultivated, or, if the marijuana is cultivated in an outdoor area, from the fence required by Subdivision (c)(3), to the boundary line of the premises. (D) No person owning, leasing, occupying, or having charge or possession of any premises within the County shall cause, allow, suffer, or permit such premises to be used for the outdoor or indoor cultivation of marijuana plants in violation of this Chapter.

410-045

CHANGE IN LAND USE

The County shall encourage any person proposmg to construct or operate a new or

·

.

relocated school, school bus stop, school evacuation site, church, park, child care center, or youthoriented facility to consider whether the proposed location of such use is within one thousand (1,000) feet of a registered premises upon which marijuana is cultivated. Upon request, the Sutter County Department of Community Services shall inform any person proposing to construct or operate a new or relocated school, school bus stop, school evacuation site, church, park, child care center, or youth-oriented facility regarding whether there is a registered premises upon which marijuana is cultivated within one thousand (1,000) feet of the proposed location of such use, and, if so, shall also inform the person, owning, leasing, occupying, or having charge or possession of the registered premises that such a use is being proposed within (1,000) feet of the premises.

410-050

NOTICE TO ABATE UN LA WFUL M

CUL TIV AnON

Whenever the enforcing officer determines that a pubi'f~! . Chapter exists on any premises within the unincorporated area o. er County, he or she is authorized to notify the owner(s) and/or occupant(s) of the property, tht6Ujb issuance of a "Notice to Abate Unlawful Marijuana Cultivation." .

410-060

CONTENTS OF NOnCE

The Notice set forth in section 410-050 shall be in writing and shall: (a) Identify the owner(s) of the property upon w1tich the nuisance exists, as named in the records of the county assessor,· and identify-the occupant(s), if other than the owner(s), and if known or reasonably identifiable. the location of such propertt'".~y its commonly used street address, giving number of the streetroad or highway and the number, if any, of the

such PI'Op~rtyby reference to the assessor's parcel number.
',:":':'

(d)

Con •• lila stateme~that unlawful marijuana cultivation exists on the premises and that it·'l1:$s.beend~termined by the enforcing officer to be a public nuisance described in!t~i$Chapter. Describe the unlawful marijuana cultivation that exists and the actions required to abate it. Contain a statement that the owner or occupant is required to abate the unlawful marijuana cultivation within five (5) calendar days after the date that said Notice was served. Contain a statement that the owner or occupant after the date that said Notice was served, make the Board of Supervisors for a hearing to appeal officer that the conditions existing constitute a may, within five (5) calendar days a request in writing to the Clerk of the determination of the enforcing public nuisance, or to show other

(e)

(h)

(i)

cause why those conditions should not be abated in accordance with the provisions of this Chapter. (j) Contain a statement that, unless the owner or occupant abates the unlawful marijuana cultivation, or requests a hearing before the Administrative Hearing Officer, within the time prescribed in the Notice, the enforcing officer will abate the nuisance. It shall also state that the abatement costs, including administrative costs, may be made a special assessment added to the County assessment roll and become a lien on the real property, or be placed on the unsecured tax roll.

410-070

SERVICE OF NOTICE

th~:

(A) The Notice set forth in section 4 I 0.,(i)50shall be served by delivering it personally to the owner and to the occupant, or by mailing it by regular United States mail, together with a certificate of mailing, to the occupant of the property at the address thereof, and to any nonoccupying owner at his or her address as it app~ on the last equalized assessment roll, except

.

..

(1) If the records of the county asses~'§l1Ow since the last equalized assessment roll was completed, the~pe owner at his or her address as it appears in said records; or

that the ownership has changed shall also be mailed to the new

(2) .'(;~ that, after reasonable effort, the enforcing officer is unable to serve the Notice as s h above, service shall be accomplished by posting a copy of the Notice on the real property uwhich the nuisance exists as follows: Copies of the Notice shall be posted along the frontageQfJhe~~jectproperty and at such other locations on the property reasonably likely to provide n~;to theawn~r. In no event shall fewer than two (2) copies of the Order be posted on a property piilfSuantto this section. (B) The date of service isUeemed delivery, or posting, as applicable. to be the date of deposit in the mail, personal

410-080

ADMINISTRATIVE

REVIEW

(A) Any person upon whom a Notice to Abate Unlawful Marijuana Cultivation has been served may appeal the determination of the enforcing officer that the conditions set forth in the Notice constitute a public nuisance to the Administrative Hearing Officer, or may show cause before the Administrative Hearing Officer why those conditions should not be abated in accordance with the provisions of this Chapter. Any such administrative review shall be commenced by filing a written request for a hearing with the clerk of the Board of Supervisors within five (5) calendar days after the date that said Notice was served. The written request shall include a statement of all facts supporting the appeal. The time requirement for filing such a written request shall be deemed jurisdictional and may not be waived. In the absence of a timely filed written request that complies fully with the requirements of this Section, the findings of the enforcing officer contained in the Notice shall become final and conclusive on the sixth day following service of the Notice.

(B) Upon timely receipt of a written request for hearing which complies with the requirements of this Section, the clerk of the Board of Supervisors shall set a hearing date not less than five (5) days nor more than fifteen (15) days from the date the request was filed. The clerk shall send written notice of the hearing date to the requesting party, to any other parties upon whom the Notice was served, and to the enforcing officer. (C) Any hearing conducted pursuant to this chapter need not be conducted according to technical rules relating to evidence, witnesses and hearsay. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The Administrative Hearing Officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption oftime. (D) time to time. The Administrative Hearing Officer may continue the administrative hearing from

(E) The Administrative Hearing Officer shallconsider the matter de novo, and may affirm, reverse, or modify the determinations contained". the Notice to Abate Unlawful Marijuana Cultivation. The Administrative Hearing Officer ~issue a written decision which shall inelude findings relating to the existence or nonexistence of.the alleged unlawful marijuana cultivation, as well as findings concerning the propriety and means of abatement of the conditions set forth in the Notice. The decision shall he submitted to the clerk of the Board of Supervisors who shall mail to, or personally serve upon, the party requesting the hearing, any other parties upon whom the ~~tice was served, and the enforcing officer.
"

The d~~~on of the Administrative Hearing Officer shall be final and conclusive.

410·090

LIABILITY FORCOSTS

(A) In enforcement action brought pursuant to this Chapter, whether by administrative proceec proceedings, or summary abatement, each person who causes, permits, suffers, or mal unlawful marijuana cultivation to exist shall be liable for all costs incurred by the coun eluding, but not limited to, administrative costs, and any and all costs incurred to undertake, or to cause or compel any responsible party to undertake, any abatement action in compliance with the requirements of this Chapter, whether those costs are incurred prior to, during, or following enactment of this Chapter; (B) In any action by the enforcing officer to abate unlawful marijuana cultivation under this Chapter, whether by administrative proceedings, judicial proceedings, or summary abatement, the prevailing party shall be entitled to a recovery of the reasonable attorney's fees incurred. Recovery of attorneys' fees under this subdivision shall be limited to those actions or proceedings in which the County elects, at the initiation of that action or proceeding, to seek recovery of its own attorney's fees. In no action, administrative proceeding, or special proceeding shall an award of attorneys' fees to a prevailing party exceed the amount of reasonable attorneys' fees incurred by

..
the County in the action or proceeding. 410-100 ABATEMENT BY OWNER OR OCCUPANT

Any owner or occupant may abate the unlawful marijuana cultivation or cause it to be abated at any time prior to commencement of abatement by, or at the direction of, the enforcing officer.

410-110

ENFORCEMENT

(A) Whenever the enforcing officer beco~'aware.}~hat an owner or occupant has failed to abate any unlawful marijuana cultivation within five (5) ct•. of the date of service of the Notice to Unlawful Marijuana Cultivation, unless timely appealed, or~,t,lle date of the decision of the Administrative Hearing Officer requiring such abatement, the enfd~ officer may take one or more of the following actions: (I) Enter upon thepn'Pperty and abate the nuisance by County personnel, or by private contractor under the direction of Ire enforcing officer. The enforcing officer may apply to a court of competent jurisdiction for a wwranfauthorizing entry upon the property for purposes of undertaking the work, if necessary. Noth:i~ herei~shall be construed to require that any private contract under this Code be awardedt~ugh competitive bidding procedures where such procedures are not required by the general laws of the State of California; and/or (2) Request that the County C~sel commence a civil action to redress, enjoin,

se administrative penalti'~~ m accordance y Ordinance Code. ~:~'i~.~~~: i
<> - ~::;

with the prOVISIOns of

:'i~_'> ..

410-120

~~OUNTING;'
• 0' "::~.

".:>".

-". >:~

The enforcing~~er s~'keep an account of the cost of every abatement carried out and shall render a report iri'\~itemized by parcel, to the clerk of the Board of Supervisors showing the cost of abatement and the administrative costs for each parcel.

410-130

NOTICE OF HEARING ON ACCOUNTING; WAIVER BY PA YMENT

Upon receipt of the account of the enforcing officer, the clerk of the Board of Supervisors shall deposit a copy of the account pertaining to the property of each owner in the mail addressed to the owner and include therewith a notice informing the owner that, at a date and time not less than five (5) business days after the date of mailing of the notice, the Board of Supervisors will meet to review the account and that the owner may appear at said time and be heard. The owner may waive the hearing on the accounting by paying the cost of abatement and the cost of administration to the enforcing officer prior to the time set for the hearing by the Board of

·

.

Supervisors. Unless otherwise expressly stated by the owner, payment of the cost of abatement and the cost of administration prior to said hearing shall be deemed a waiver of the right thereto and an admission that said accounting is accurate and reasonable.

410-140

HEARING ON ACCOUNTING

(A) At, the time fixed, the Board of Supervisors shall meet to review the report of the enforcing officer. An owner may appear at said time and be heard on the questions whether the accounting, so far as it pertains to the cost of abating a nuisance upon the land of the owner is accurate and the amounts reported reasonable. The cost of administration shall also be reviewed. (B) The report of the enforcing officer shall be admitted into evidence. shall bear the burden of proving that the accounting is not accurate and reasonable. The owner

(C) The Board of Supervisors sha'll~so determine whether or not the owner(s) had actual knowledge of the unlawful marijuana cultiv~tion, or could have acquired such knowledge through the exercise of reasonable diligence. If if:I,$<u.ete > at the hearing that the owner(s) did not have actual knowledge of the unlawful marijuas ation, and could not have acquired such knowledge through the exercise of reasonable dilig costs for the abatement shall not be assessed against such parcel or otherwise attempted to b~l,ected from the owner(s) of such parcel. ',:;'::.,

410-150

MODIFICATIONS

The Board of Supervisors shall make such modifications in the accounting as it deems necessary and thereafter shall confirm the report by resolution.

410-160

SPECIAL ASSESSMENT AND LIEN

The Board of Supervisors may order that the cost of abating nuisances pursuant to this Chapter and the administrative costs as confirmed by the Board of Supervisors be placed upon the County tax roll by the County Assessor as special assessments against the respective parcels of land. or placed on the unsecured roll, pursuant to section 25845 of the Government Code; provided, however, that the cost of abatement and the cost of administration as finally determined shall not be placed on the tax roll if paid in full prior to entry of said costs on the tax roll. The Board of Supervisors may also cause notices of abatement lien to be recorded against the respective parcels of real property pursuant to section 25845 of the Government Code.

410-170

ENFORCEMENT

BY CIVIL ACTION

As an alternative to the procedures set forth in Sections 410-050 through 410-080, the County may abate the violation of this Chapter by the prosecution of a civil action through the Office of the County Counsel, including an action for injunctive relief. The remedy of injunctive relief may take the form of a court order, enforceable through civil contempt proceedings,

·.
prohibiting the maintenance of the violation of this Chapter or requiring compliance with other terms.

410-180

SUMMAR Y ABATEMENT

Notwithstanding any other provision of this Chapter, when any unlawful marijuana cultivation constitutes an immediate threat to public health or safety, and when the procedures set forth in Sections 410-050 through 410-080 would not result in abatement of that nuisance within a short enough time period to avoid that threat, the enforcing officer may direct any officer or employee of the County to summarily abate the nuisance. The enforcing officer shall make reasonable efforts to notify the persons identified in Section 410-070, but the formal notice and hearing procedures set forth in this Chapter shall not apply. The County may nevertheless recover its costs for abating that nuisance in the manner set forth in Sections 410-120 through 410-160.

410-190

NO DUTY TO ENFORCE

Nothing in this Chapter shall be. construed asira~Bing on the enforcing officer or the County of Sutter any duty to issue an Netice to Abate~awful Marijuana Cultivation, nor to abate any unlawful marijuana cultivation, norwtake any otl1eraction with regard to any unlawful marijuana cultivation, and neither the ~~rcing of Sutter shall be held liable for failure to issue an order to aba!> y nor for failure to abate any unlawful marijuana cultivation, any unlawful marijuana cultivation.

for herein are cumulative and not exclusive, and are in addition to or ..provided by law. Nothing in this Chapter shall be deemed to any activity that violates any provision of state or federallaw.

410-200

OTH

Nothing in this Ch shall be construed as a limitation on the County's authority to abate any nuisance which may otherwise exist from the planting, growing, harvesting, drying, processing or storage of marijuana plants or any part thereof from any location, indoor or outdoor, including from within a fully enclosed and secure building.

410-210

COMPLIANCE WITH OTHER LAWS

As used in this Chapter, "permitted," "approved," "allowed," and similar terms shall mean only that the use or activity does not violate the Sutter County Code. No provision of this Chapter, nor any document issued hereunder, shall be construed to authorize, legalize, allow, approve, or condone any activity that violates any provision of State or Federal law or this Code.

,

.

Nothing in this ordinance shall be construed to allow the use of marijuana for non-medical purposes, or allow any activity relating to the cultivation, distribution, or consumption of marijuana that is otherwise illegal under State or Federal law. No provision of this Chapter shall be deemed a defense or immunity to any action brought against any person by the Sutter County District Attorney, the Attorney General of the State of Cali fomi a, or the United States of America,

410-220

SEVERABILITY

If any section, subsection, sentence, clause, portion, otphrase of this chapter is for any reason held illegal, invalid, or unconstitutional by the Q~rnion of any court of competent jurisdiction, such decision shall not affect the validity oftiM.J'e~ining portions hereof. The board hereby declares that it would have passed this chapt_:and section, subsection, sentence, clause, portion, or phrase hereof, irrespective of the fact tha1:~y one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalidhr\Jnconstitutional.

eaeh.

SECTION 2: This ordinance shall take effect thirty (30) days after the date of its adoption and before the expiration of fifteen (15)a.ays from the date of passage thereof, shaltbe published at least once in the Appeal-Democrat, a newspaper of general circulation, printed and published in the County of Sutter, State of California, together with the names of the members of the Board of Supervisors voting for and against the same.

PASSED AND ADOPTED this day of Sutter County Board of Supervisors, State of Calif{)rnia, by the following vote: AYES: NOES: .

, 2012, by the

Chairman, Board of Supervisors A TTEST:i>< . DONNA THOMPSON, CtEl'RK 8y: Deputy _

ORDINANCE NO. AN ORDINANCE OF THE COUNTY OF SUTTER AMENDING THE SUTTER COUNTY ORDINANCE CODE BY ADDING CHAPTER 87 PERTAINING TO THE PROCEDURES FOR IMPOSING ADMINISTRATIVE PENALTIES FOR ORDINANCE CODE VIOLATIONS

THE BOARD OF SUPERVISORS OF THE COUNTY OF SUTTER ORDAINS AS FOLLOWS: SECTION 1: The Sutter County Ordinance Code is amended by adding Chapter 87 to read, in its entirety, as follows: Chapter 87 ADMINISTRATIVE SECTIONS: 410-010 410-020 410-030 410-040 410-050 410-060 410-070 410-080 410-090 410-100 410-110 410-120 410-130 410-140 PENALTIES

Authority and Title Purpose Definitions Administrative Penalty Procedures Appeal of Administrative Citation Advance Deposit Hardship Waiver Hearing Officer Hearing Procedure Administrative Order Right to Appeal to Board of Supervisors Board of Supervisors Hearing to Establish Civil Penalties Amount of Administrative Penalty Payment and Collection

87-010

AUTHORITY AND TITLE penalty

This chapter shall hereinafter be referred to as the Sutter County administrative ordinance and is enacted pursuant to Government Code Section 53069.4.

87-020 (A)

PURPOSE This chapter is adopted to achieve the following goals: and

(1) To protect the public health, safety and welfare of the communities citizens in the county of Sutter; and, (2) To provide a method to penalize responsible

parties who fail or refuse to

comply with certain provisions of the Sutter County Ordinance Code; and, (3) To minimize the expense and delay where otherwise the county must pursue responsible parties in the civil or criminal justice system. (B) The procedures established in this chapter shall be in addition to criminal, civil or any other legal remedy established by law and available to address violations of the Sutter County Ordinance Code (hereinafter, "code"). (C) Notwithstanding any other provision of this code, whenever an act, event or condition results in violation of certain chapters of the code, the procedures set out in this chapter may be used to impose a penalty on violators.

87-030

DEFINITIONS

As used in this chapter: (A) "Citation" or "Administrative citation" means a civil citation issued pursuant to this chapter stating that there has been a violation of one or more provisions of the code and setting the amount of the administrative penalty to be paid by the responsible party. (B) "Days" means calendar days.

(C) "Public official" means the Community Services Director, the Public Works Director, Agricultural Commissioner, building official, fire chief, health officer or designees, or any other individual or body appointed by the board of supervisors to enforce codes and which is authorized to administer this chapter. (D) "Responsible party" means an individual, association, co-partnership, political subdivision, government agency, municipality, industry, public or private corporation, finn, organization, partnership, joint venture or any other entity whatsoever whose action or actions caused or contributed to violations of codes specified in this chapter. (E) "Year" means three-hundred and sixty-five (365) days.

87-040

ADMINISTRATIVE

PENALTY

(A) Any responsible party violating any prOVISIon of the code may be issued an administrative citation by a public official or the board of supervisors in accordance with the provisions of this chapter. (B) Each and every day a violation of the provisions of the code exists constitutes a separate and distinct offense and shall be subject to citation. A citation may contain multiple violations and impose administrative penalties for each of those violations. (C) The public official may also petition the board of supervisors to impose an

administrative penalty under this chapter when. in the judgment of the public official, the amount of the administrative penalties prescribed in Section 87-130 are not adequate in light of the circumstances, pursuant to Section 87-120. In imposing an administrative penalty under this chapter, the board of supervisors shall follow the procedures prescribed for imposition of administrative penalties by a public official. The amount of administrative penalties imposed by the board of supervisors shall not be limited to the amounts prescribed in Section 87-130. (D) The public official may issue a citation for a violation not committed in the official's presence, if the official has determined through investigation that the responsible party did commit or is otherwise responsible for the violation. 87-050 (A) PROCEDURES The administrative citation shall be issued on a form containing:

(l) The name and address of the responsible party and, if applicable, the physical address of the property or location where the violation exists or occurred; (2) A statement of the acts, events or conditions which resulted in a violation of the code, including a reference to the appropriate title and chapter and the date of occurrence of the violation(s) included within the citation; (3) The amount of the administrative penalty imposed by the citation;

(4) A statement explaining how, where, to whom, and within what number of days the penalty shall be paid; (5) In the case of a continuing violation issued under Section 87-130(D). the number of days provided to correct the violation prior to the administrative penalty becoming effective; (6) Identification of appeal rights, including the time within which the administrative citation may be contested and how to contest the citation; and, (7) The signature of the public official issuing the citation along with the date of issuance of the citation. (B) The administrative citation shall be served upon the responsible party. however, failure of the public official to serve any responsible party as required in this section shall not invalidate any provisions of this chapter, nor shall it relieve any responsible party from any duty or obligation required by the code. (C) Service of an administrative citation may be made upon the responsible party either by personal delivery or by first class mail postage prepaid, return receipt requested, and shall be deemed completed when it is served to the address of record for the responsible party. (D) In lieu of personally serving the responsible party by personal delivery or first class

mail postage prepaid, service of the administrative citation and any amended or supplemental citation may be made by: (1) By leaving a copy during usual business hours with the person who is apparently in charge at the recipient's place of business and by thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left; or (2) By leaving a copy at the recipient's dwelling or usual place of abode in the presence of a competent member of the household and thereafter mailing by first class mail postage prepaid a copy to the recipient at the address where the copy was left; or (3) In the event the responsible party cannot be served by first class mail postage prepaid and cannot be personally served but has a property manager or rental agency overseeing the premises, substituted service may be made as set forth above in subdivision (l) upon the property manager or rental agency; or (3) Substitute service may be effected by posting the property with the administrative citation and mailing a copy of the citation by first class mail postage prepaid to the responsible party in violation at the address of the property where the violation exists; or (4) If the responsible party in violation or other person entitled to service cannot be located or service cannot be effected as set forth in this section, service may be made by publication once in a newspaper of general circulation. (E) Failure of any responsible party to receive such administrative citation shall not affect the validity of any proceedings taken under this section against any other responsible party. Service by first class mail postage prepaid in the manner provided in this section shall be effective on the date of mailing.

87-060

APPEAL OF ADMINISTRATIVE

CITATION

Any person disputing the issuance of an administrative citation may contest the citation by completing a request for hearing form and returning it to the address stated on the form within fifteen (15) days from the date of issuance of the administrative citation, together with an advance deposit of the full amount of the penalty. Any administrative citation penalty that has been deposited shall be refunded if it is determined, after a hearing, that the person or entity charged with the violation was not responsible for the violation or that there was no violation as charged in the administrative citation. The time requirement for filing a request for hearing form shall be deemed jurisdictional and may not be waived.

87-070

ADVANCE DEPOSIT HARDSHIP WAIVER

(A) Any person who intends to request a hearing under Section 87-060 and is financially unable to make the advance deposit as required in that section, may file a request for an advance deposit hardship waiver.

(B) The request shall be filed with the director of the department issuing the administrative citation within fifteen (15) days of the date of the issuance of the citation. (C) The requirement of depositing the full amount of the administrative penalty as described in Section 87-060 shall be stayed unless and until the director makes a determination not to issue the advance deposit hardship waiver. (D) The director may waive the requirement of an advance deposit and issue the waiver only if the person receiving the administrative citation submits to the director a sworn affidavit, together with any supporting documents or materials, demonstrating to the satisfaction of the director the person's actual financial inability to deposit with the county the full amount of the penalty in advance of the hearing. (E) The- director shall- issue- -a written decision explaining the reasons -for- his or her determination to issue or not issue the advance deposit hardship waiver. The written decision of the director shall be final. (F) The written decision of the director shall be mailed to the person who applied for the advance deposit hardship waiver at the address provided in the application. (G) If the director determines not to issue an advance deposit hardship waiver, the person shall remit the deposit to the county no later than seven (7) days after the date of the decision.

87-080

HEARING OFFICER

The director of the department issuing the administrative citation shall preside at the hearing and hear all facts and testimony presented and deemed appropriate (hereinafter "hearing officer").

87-090

HEARING PROCEDURE

(A) No hearing to contest an administrative citation before a hearing officer shall be held unless both a request for hearing form has been completed and timely submitted and the amount of the penalty for the citation has been deposited in advance, unless a waiver has been granted under Section 87-070. (B) A hearing before the hearing officer shall be set for a date that is not less than ten (10) days but no more thirty (30) days from the date that the request for hearing is filed in accordance with the provisions of this chapter. The responsible party requesting the hearing shall be notified of the time and place set for hearing at least five (5) days prior to the date of the hearing. (C) The hearing officer shall only consider evidence that is relevant to whether the violation(s) occurred and whether the recipient of the administrative citation has caused or maintained the violation(s) on the date(s) specified in the administrative citation.

(D) Any administrative hearing conducted pursuant to this Chapter need not be conducted according to technical rules relating to evidence and witnesses. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of the evidence over objection in civil actions. The hearing officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time. Personal information about any reporting party related to the violation(s) shall not be disclosed. (E) The hearing officer may continue the hearing as necessary.

(F) The failure of a responsible party to appear at the administrative citation hearing shall constitute a forfeiture of the fine and be deemed a failure to exhaust administrative remedies.

87-100

ADMINISTRATIVE

ORDER

(A) Within ten (10) days of the conclusion of the hearing, the hearing officer shall provide the responsible party with a written decision ("administrative order"). The hearing officer shall serve the administrative order on the responsible party by personal service or registered or certified mail at the responsible party's last known address. (B) The administrative order shall contain the hearing officer's findings of fact and conclusions and a statement regarding the procedure described in Section 87-110 for seeking review by the board of supervisors. The decision of the hearing officer shall be final except as provided in Section 87-110. (C) A decision in favor of the responsible party shall constitute a dismissal of the ordinance violation(s) administrative penalty and the County shall return any monies paid by the responsible party. (D) If the hearing officer renders a decision in favor of the County, the responsible party must comply with the administrative order, including payment of any administrative penalty, or seek review under Section 87-110.

87-110

RIGHT TO APPEAL TO BOARD OF SUPERVISORS

(A) A responsible party who is subject to an administrative order issued by a hearing officer pursuant to Section 87-100, may contest the administrative order by filing an appeal with the clerk of the board of supervisors within fifteen (15) days from date of the administrative order. (B) The decision of the hearing officer may be considered de novo by the board of supervisors. The board of supervisors may reverse, affirm wholly or partly, or modify the administrative order. The decision of the board of supervisors on any such appeal shall be final on adoption of an order containing its determination. Notice of the final decision shall be served by certified or registered mail on the affected persons.

--_

.....

_-_.-._

..

_

..

(C) Pursuant to Section 1085 of the Code of Civil Procedure, any person who has been named in an order issued pursuant to this chapter, may, following exhaustion of administrative remedies, seek judicial review of the order by filing a petition for writ of mandate within ninety (90) days after the order becomes final and binding pursuant to this chapter. Notwithstanding the provisions of Section 1094.5 or 1094.6 of the Code of Civil Procedure, any person who contests the final administrative order issued under this chapter regarding the imposition, enforcement or collection of the administrative penalties imposed, may seek judicial review of the order by filing an appeal with the Superior Court within twenty (20) days after service of the order in accordance with Section 53069.4 of the Government Code. Any other person who has the right to seek judicial review of the order by filing a petition for writ of mandate pursuant to Section 1085 of the Code of Civil Procedure shall do so within one hundred eighty (180) days after the order has become final and binding pursuant to this chapter. The filing of a petition for writ of mandate to review the order shall not stay any action specified in the order. 87-120 BOARD OF SUPERVISORS HEARING TO ESTABLISH CIVIL PENALTIES

(A) The public official may request a hearing before the board of supervisors to consider imposing a civil penalty in an amount or at a time different than provided for in Section 87-130. Notice of the hearing shall be sent by first class mail postage prepaid to the persons to whom the penalty is to be imposed against. (B) The notice shall state the date, time and place of the hearing, which in no event shall be sooner than ten (10) days from the date of mailing and posting such notice unless mutually agreed to by the property owner or responsible party and the public official, the specific violations, conditions, or uses which constitute the code violation on which the penalty is based. (C) The failure of any property owner, responsible party, mortgagee, trust deed beneficiary or other person to receive any notice required to be given or posted pursuant to the provisions of this chapter shall not affect in any manner the validity of any proceedings taken hereunder. (D) At the time fixed in the notice, the board of supervisors shall proceed to hear testimony from any interested person regarding the specified violation, condition or use deemed by the public official to be the basis for the proposed administrative penalty, and any other matter which the board of supervisors may deem pertinent thereto. (E) Upon the conclusion of the hearing, the board of supervisors will make a determination based on the evidence presented at the hearing, and may impose a civil penalty without regard to the limits in Section 87-130, which shall thereafter be collected pursuant to this chapter. (F) The decision of the board of supervisors shall be final and' the administrative penalty payable immediately.

87-130

AMOUNT OF ADMINISTRATIVE

PENALTY

(A) Unless provided otherwise in this code, administrative penalties for the violation of any ordinance which is an infraction shall be assessed as follows: (1) Except as provided in Subdivision (2), a fme not exceeding one hundred dollars ($100) for a first violation; a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year from the date of the first violation; and, a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year from the date of the first violation. (2) A violation of any local building and safety code shall be punishable by a fine not exceeding one hundred dollars ($100) for a first violation; a fine not exceeding five hundred dollars ($500) for a second violation of the same ordinance within one year from the date of the first violation; and, a fine not exceeding one thousand dollars ($1,000) for each additional violation of the same ordinance within one year from the date of the first violation. (8) Unless provided otherwise in this code, administrative penalties for the violation of any ordinance designated as a misdemeanor shall be assessed as follows: a fine not exceeding two hundred fifty dollars ($250) for the first violation; a fine not exceeding five hundred dollars ($500) for the second violation of the same ordinance within one year from the date of the first violation; and, a fine not exceeding one thousand dollars ($1,000) for each additional violation of the same ordinance within one year from the date of the first violation. (C) Except as specified in Subsection D of this section, upon issuance administrative citation, the administrative penalty shall be due immediately. of the

(D) Where the administrative citation is issued for a continuing violation, unless the violation creates an immediate danger to health or safety or involves the cultivation of marijuana, the responsible party shall be provided with an opportunity to correct the violation prior to the imposition of the administrative penalty in accordance with the following: (1) If a responsible party fails to correct a first violation within five (5) days after the notice and order of administrative citation is served under Section 87-050, the administrative penalty established by the order administrative citation shall become effective and due immediately. The administrative penalty shall not exceed two hundred fifty dollars ($250.00). (2) The administrative penalty, or any portion thereof, for a first-time violation which has become effective following the five (5) day corrective period may be waived by the public official in his/her sole discretion only if the responsible party corrects the violation in accordance with all conditions established by the public official.

PAYMENT AND COLLECTION (A) In the event the responsible party fails to pay the administrative penalty when due, the county may take any actions permitted by law or ordinance to collect the unpaid penalty,

which shall accrue interest at a rate often percent (10%) per month, commencing thirty (30) days after the administrative penalty becomes due and continuing until paid. (B) In the event a civil action is commenced to collect the administrative penalty, the county shall be entitled to recover all costs associated with the enforcement, investigation, establishment and collection of the penalty. Costs include, but are not limited to, staff time and costs incurred in the enforcement, investigation, establishment and the collection or processing of the penalty and those costs set forth in Code of Civil Procedures Sections 685.010 et seq. and 1033.5. (C) The amount of any unpaid administrative penalty, plus any other costs as provided in this chapter, may be declared a lien on real property owned by the responsible party within the county as follows: (1) Notice shall be given to the responsible party prior to the recordation of the lien, and shall be mailed first class mail postage prepaid to the last known address; and, (2) When the public official records a lien listing delinquent unpaid administrative penalties with the county recorder's office, the lien shall specify the amount of the lien, the date of the code violations, the date of the final administrative decision, the street address, legal description, and assessor's parcel number of the parcel on which the lien is imposed, and the name of the owner of the parcel according to the last equalized assessment roll; and, (3) In the event that the lien is discharged, released or satisfied, either through payment or foreclosure, notice of the discharge and release of the lien shall be prepared by the public official. (D) The amount of the unpaid administrative penalty, plus any other costs as provided by this chapter, may be declared a special assessment against any real property owned by the responsible party and located within the county. The board of supervisors may impose the special assessment on one (l) or more parcels. The amount of the assessment shall not exceed the amount of administrative penalty imposed for the violation, plus any cost authorized by other chapters of this code. The public official may present a resolution to the board of supervisors to declare a special assessment, and, upon passage and adoption thereof, shall cause a certified copy to be recorded with the Sutter County recorder's office. The assessment may then be collected at the same time and in the same manner as ordinary taxes are collected, and shall be subjected to the same penalties and the same procedure and sale in the case of delinquency as provided for ordinary property taxes. (E) The county may withhold issuance of licenses, permits and other entitlement for any property whenever an administrative penalty resulting from a code violation on that property remains unpaid or the owner of the property has outstanding, unpaid administrative penalties for violations of the code. (F) The county may take any action permitted for enforcement of a civil money judgment pursuant to the Enforcement of Judgment Law, California Code of Civil Procedure Section 680.010 et. seq.

SECTION 2: This ordinance shall take effect thirty (30) days after the date of its adoption and before the expiration of fifteen (15) days from the date of passage thereof, shall be published at least once in the Appeal-Democrat, a newspaper of general circulation, printed and published in the County of Yuba, State of California, together with the names of the members of the Board of Supervisors voting for and against the same.

PASSED AND ADOPTED this day of Sutter County Board of Supervisors, State of California, by the following vote: AYES: NOES: ABSENT: Chairman, Board of Supervisors ATTEST: DONNA THOMPSON, CLERK. By: Deputy _

, 2012, by the