Bill Text: CA AB491 | 2023-2024 | Regular Session | Amended

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Bill Title: Local government: fines and penalties.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Engrossed) 2024-06-03 - Read second time and amended. Re-referred to Com. on JUD. [AB491 Detail]

Download: California-2023-AB491-Amended.html

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Amended  IN  Senate  June 03, 2024

Amended  IN  Senate  September 13, 2023

Amended  IN  Senate  May 24, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 491

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Introduced by Assembly Member Wallis

February 07, 2023

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An act to amend Section 53069.4 of the Government Code, relating to local government.

LEGISLATIVE COUNSEL'S DIGEST

AB 491, as amended, Wallis. Local government: fines and penalties.

Existing law authorizes the legislative body of a local agency, as defined, to make, by ordinance, a violation of an ordinance subject to an administrative fine or penalty, as specified. Existing law requires the local agency to set forth by ordinance the administrative procedures that govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Existing law authorizes a person contesting a final administrative order or decision to seek review by filing an appeal to be heard by the superior court, as specified.

This bill would make the above-described appeal the exclusive means of judicial review for an administrative fine or penalty that does not exceed a specified amount and that is imposed for violation of a local law regulating or prohibiting commercial cannabis activity, as specified.

This bill would authorize a local agency to establish, by ordinance, a procedure to collect those administrative fines or penalties by lien upon the parcel of land on which the violation occurred, as specified.

This For specified administrative fines or penalties, this bill would authorize a local agency, after the exhaustion of the administrative and appeal procedures referenced above, to file with the clerk of the superior court of any county a certified copy of a final administrative order or decision of the local agency that directs the payment of an administrative fine or penalty and, if applicable, a copy of an order of the superior court rendered on an appeal from the local agency’s decision. The bill would require the clerk to enter the judgment immediately and prohibit the clerk from charging fees related to that requirement.

This bill would make the above-described appeal the exclusive means of judicial review for an administrative fine or penalty that does not exceed a specified amount and that is imposed for violation of a local law regulating or prohibiting commercial cannabis activity, as specified.

This bill would make the remedies and penalties provided by the above-described provisions governing the imposition, enforcement, collection, administrative review, and appeal of administrative fines and penalties cumulative to the remedies or penalties available under other law.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

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, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 25132 and subdivision (b) of Section 36900.

(2) (A) The administrative procedures set forth by ordinance adopted by the local agency pursuant to this subdivision 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 subparagraph (A), the ordinance adopted by the local agency pursuant to this subdivision may declare commercial cannabis activity undertaken without a license as required by Division 10 (commencing with Section 26000) of the Business and Professions Code to be a public nuisance and provide for the immediate imposition of administrative fines or penalties for the violation of local zoning restrictions or building, plumbing, electrical, or other similar structural, or health and safety requirements if the violation exists as a result of, or to facilitate, the unlicensed cultivation, manufacturing, processing, distribution, or retail sale of cannabis for which a license is required. This subparagraph shall not be construed to apply to cannabis cultivation or activity that is lawfully undertaken pursuant to Section 11362.1 or 11362.5 of the Health and Safety Code, to commercial cannabis activity undertaken pursuant to a license under Division 10 (commencing with Section 26000) of the Business and Professions Code and applicable state regulations, or to a person exempt from licensure pursuant to Section 26033 of the Business and Professions Code.

(C) If a local agency adopts an ordinance that provides for the immediate imposition of administrative fines or penalties as allowed in subparagraph (B), that ordinance may impose the administrative fines and penalties upon the property owner and upon each owner of the occupant business entity engaging in unlicensed commercial cannabis activity and may hold them jointly and severally liable for the administrative fines and penalties.

(D) Administrative fines or penalties that are immediately imposed pursuant to an ordinance adopted under subparagraph (B) shall not exceed one thousand dollars ($1,000) per violation and shall not exceed ten thousand dollars ($10,000) per day. This subparagraph shall not be construed to limit the immediate imposition of larger fines that are otherwise authorized by applicable law and shall not be construed to limit administrative fines or penalties that are imposed after notice and a reasonable time to correct pursuant to subparagraph (A).

(E) An ordinance adopted pursuant to subparagraph (B) shall provide for a reasonable period of time for the correction or remedy of the violation prior to the imposition of administrative fines or penalties as required in subparagraph (A) if all of the following are true:

(i) A tenant is in possession of the property that is the subject of the administrative action.

(ii) The rental property owner or agent can provide evidence that the rental or lease agreement prohibits the commercial cannabis activity.

(iii) The rental property owner or agent did not know the tenant was engaging in unlicensed commercial cannabis activity for which a license was required and no complaint, property inspection, or other information caused the rental property owner or agent to have actual notice of the unlicensed commercial cannabis activity.

(F) A local agency that passes an ordinance pursuant to subparagraph (B) may refer cases involving unlicensed commercial cannabis activity to the Attorney General to undertake civil enforcement action pursuant to Chapter 5 (commencing with Section 17200) of Part 2 of Division 7 of, or Section 26038 of, the Business and Professions Code or any other applicable law.

(b) (1) Notwithstanding Section 1094.5 or 1094.6 of the Code of Civil Procedure, within 20 days after service of the final administrative order or decision of the local agency is made pursuant to an ordinance enacted in accordance with this section regarding the imposition, enforcement, or collection of the administrative fines or penalties, a person contesting that final administrative order or decision may seek review by filing an appeal to be heard by the superior court, where the same shall be heard de novo, except that the contents of the local agency’s file in the case shall be received in evidence. A proceeding under this subdivision is a limited civil case. A copy of the document or instrument of the local agency providing notice of the violation and imposition of the administrative fine or penalty shall be admitted into evidence as prima facie evidence of the facts stated therein. A copy of the notice of appeal shall be served in person or by first-class mail upon the local agency by the contestant.

(2) The fee for filing the notice of appeal shall be as specified in Section 70615. The court shall request that the local agency’s file on the case be forwarded to the court, to be received within 15 days of the request. The court shall retain the fee specified in Section 70615 regardless of the outcome of the appeal. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the local agency. Any deposit of the fine or penalty shall be refunded by the local agency in accordance with the judgment of the court.

(3) The conduct of the appeal under this section is a subordinate judicial duty that may be performed by traffic trial commissioners and other subordinate judicial officials at the direction of the presiding judge of the court.

(4) (A) Except as otherwise provided in subparagraph (B), a person contesting a local agency’s final administrative order or decision under this section may elect to file an appeal under this subdivision or may seek review of the final administrative order or decision within 30 days of the date of the order or decision pursuant to Section 1094.5 of the Code of Civil Procedure.

(B) An appeal under this subdivision shall be the exclusive means of judicial review for an administrative fine or penalty that does not exceed the amount set forth in paragraph (1) of subdivision (a) of Section 86 of the Code of Civil Procedure and that is imposed for violation of a local law regulating or prohibiting the cultivating, manufacturing, producing, processing, preparing, storing, providing, donating, selling, delivering, or distributing of cannabis or cannabis products, including, but not limited to, an ordinance adopted under Section 26200 of the Business and Professions Code.

(c) If no notice of appeal of the local agency’s final administrative order or decision is filed within the period set forth in this section, the order or decision shall be deemed confirmed.

(d) If the fine or penalty has not been deposited and the decision of the court is against the contestant, the local agency may proceed to collect the penalty pursuant to the procedures set forth in its ordinance.

(e) (1) For an administrative fine or penalty described in paragraph (2), after the exhaustion of the administrative and review procedures provided in this section, the local agency may file a certified copy of a final administrative order or decision of the local agency that directs the payment of an administrative fine or penalty and, if applicable, a copy of an order of the superior court rendered on an appeal from the local agency’s decision or denying a petition for a writ of administrative mandamus with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. A fee shall not be charged by the clerk of the superior court for the performance of an official service required in connection with the entry of judgment pursuant to this section.

(2) This subdivision shall only apply to an administrative fine or penalty that is imposed for a violation of any of the following:

(A) Any law, regulation, or local ordinance regulating or prohibiting the cultivating, manufacturing, producing, processing, preparing, storing, providing, donating, selling, delivering, or distributing of cannabis or cannabis products, including, but not limited to, an ordinance adopted under Section 26200 of the Business and Professions Code.

(B) The State Housing Law (Part 1.5 (commencing with Section 17910) of Division 13 of the Health and Safety Code) and regulations or ordinances adopted pursuant to that part.

(C) Any law, regulation, or local ordinance that ensures the habitability of rental housing, including, but not limited to, compliance with Section 1941.1 of the Civil Code.

(D) Any law, regulation, or local ordinance relating to fire hazards.

(f) The local agency may by ordinance establish a procedure to collect administrative fines or penalties imposed pursuant to this section by lien upon the parcel of land on which the violation occurred.

(1) The ordinance shall require service or mailing of notice after the exhaustion of the administrative and review procedures provided in this section and before the recordation of the lien to both of the following:

(A) The owner of record of the parcel of land on which the violation occurred, based on the last equalized assessment roll or the supplemental roll, whichever is more current.

(B) The owner of an encumbrance of record on the property.

(2) Once a copy of the notice of lien, as described in paragraph (1), is recorded in the county recorder’s office, the lien shall have the same force, effect, and priority as a judgment lien.

(g) The remedies or penalties provided by this section are cumulative to the remedies or penalties available under other law.

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, may by ordinance make any violation of any ordinance enacted by the local agency subject to an administrative fine or penalty. The local agency shall set forth by ordinance the administrative procedures that shall govern the imposition, enforcement, collection, and administrative review by the local agency of those administrative fines or penalties. Where the violation would otherwise be an infraction, the administrative fine or penalty shall not exceed the maximum fine or penalty amounts for infractions set forth in Section 25132 and subdivision (b) of Section 36900.

(2)(A)The administrative procedures set forth by ordinance adopted by the local agency pursuant to this subdivision 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 subparagraph (A), the ordinance adopted by the local agency pursuant to this subdivision may provide for the immediate imposition of administrative fines or penalties for the violation of building, plumbing, electrical, or other similar structural, health and safety, or zoning requirements if the violation exists as a result of, or to facilitate, the illegal cultivation of cannabis. This subparagraph shall not be construed to apply to cannabis cultivation that is lawfully undertaken pursuant to Section 11362.1 of the Health and Safety Code.

(C)If a local agency adopts an ordinance that provides for the immediate imposition of administrative fines or penalties as allowed in subparagraph (B), that ordinance shall provide for a reasonable period of time for the correction or remedy of the violation prior to the imposition of administrative fines or penalties as required in subparagraph (A) if all of the following are true:

(i)A tenant is in possession of the property that is the subject of the administrative action.

(ii)The rental property owner or agent can provide evidence that the rental or lease agreement prohibits the cultivation of cannabis.

(iii)The rental property owner or agent did not know the tenant was illegally cultivating cannabis and no complaint, property inspection, or other information caused the rental property owner or agent to have actual notice of the illegal cannabis cultivation.

(b)(1)Notwithstanding Section 1094.5 or 1094.6 of the Code of Civil Procedure, within 20 days after service of the final administrative order or decision of the local agency is made pursuant to an ordinance enacted in accordance with this section regarding the imposition, enforcement, or collection of the administrative fines or penalties, a person contesting that final administrative order or decision may seek review by filing an appeal to be heard by the superior court, where the same shall be heard de novo, except that the contents of the local agency’s file in the case shall be received in evidence. A proceeding under this subdivision is a limited civil case. A copy of the document or instrument of the local agency providing notice of the violation and imposition of the administrative fine or penalty shall be admitted into evidence as prima facie evidence of the facts stated therein. A copy of the notice of appeal shall be served in person or by first-class mail upon the local agency by the contestant.

(2)The fee for filing the notice of appeal shall be as specified in Section 70615. The court shall request that the local agency’s file on the case be forwarded to the court, to be received within 15 days of the request. The court shall retain the fee specified in Section 70615 regardless of the outcome of the appeal. If the court finds in favor of the contestant, the amount of the fee shall be reimbursed to the contestant by the local agency. Any deposit of the fine or penalty shall be refunded by the local agency in accordance with the judgment of the court.

(3)The conduct of the appeal under this section is a subordinate judicial duty that may be performed by traffic trial commissioners and other subordinate judicial officials at the direction of the presiding judge of the court.

(4)An appeal under this subdivision shall be the exclusive means of judicial review for an administrative fine or penalty that does not exceed the amount set forth in paragraph (1) of subdivision (a) of Section 86 of the Code of Civil Procedure and that is imposed for violation of a local law regulating or prohibiting the cultivating, manufacturing, producing, processing, preparing, storing, providing, donating, selling, delivering, or distributing of cannabis or cannabis products, including, but not limited to, an ordinance adopted under Section 26200 of the Business and Professions Code.

(c)If no notice of appeal of the local agency’s final administrative order or decision is filed within the period set forth in this section, the order or decision shall be deemed confirmed.

(d)If the fine or penalty has not been deposited and the decision of the court is against the contestant, the local agency may proceed to collect the penalty pursuant to the procedures set forth in its ordinance.

(e)After the exhaustion of the administrative and appeal procedures provided in this section, the local agency may file a certified copy of a final decision of the local agency that directs the payment of an administrative fine or penalty and, if applicable, a copy of an order of the superior court rendered on an appeal from the local agency’s decision with the clerk of the superior court of any county. Judgment shall be entered immediately by the clerk in conformity with the decision or order. A fee shall not be charged by the clerk of the superior court for the performance of an official service required in connection with the entry of judgment pursuant to this section.

(f)The local agency, by ordinance, may establish a procedure to collect administrative fines or penalties imposed pursuant to this section by lien upon the parcel of land on which the violation occurred. The ordinance shall require service or mailing of notice before the recordation of the lien to the owner of record of the parcel of land on which the violation occurred, based on the last equalized assessment roll or the supplemental roll, whichever is more current, and to the owner of an encumbrance of record on the property. Once a copy of the notice of lien, as described in this subdivision, is recorded in the county recorder’s office, the lien shall have the same force, effect, and priority as a judgment lien.

(g)The remedies or penalties provided by this section are cumulative to the remedies or penalties available under other law.