Tuesday, September 23, 2008
Thursday, April 3, 2008
Official Title And Summary -- The Eureka Fair Compensation Act
INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS
The City Attorney of Eureka has prepared the following title and summary of the chief purpose and points of the proposed measure:
AN INITIATIVE TO ESTABLISH A MINIMUM WAGE FOR ALL EMPLOYEES WORKING IN THE CITY OF
If approved by the voters, this initiative would enact an ordinance requiring most employers to pay a special higher minimum wage for employees working within the geographical boundaries of the City of
The ordinance, if approved, would be implemented and enforced by the City of
All or any portion of the ordinance would not apply to employees covered by a collective bargaining agreement with differing terms.
The ordinance would require all employers to post, in a conspicuous place, the current minimum wage rate and the employees’ rights under the ordinance, with a translation in any other language spoken by at least five percent of the employees at the workplace or job site. The ordinance would also require employers to retain payroll records for a period of four years and provide for inspections of those records. The ordinance would also prohibit retaliation by any employer against any employee for exercising his or her rights under the ordinance.
Monday, March 24, 2008
Official statement of the Eureka Fair Compensation Act
Official statement of the Eureka Fair Compensation Act
If adjusted for inflation, the minimum wage of 1995 would now be over $10.00 per hour. The people of Eureka have the right to set a higher standard and recognize the value of labor in our community, especially in the face of insufficient action by career politicians in Sacramento and Washington.
This minimum wage increase encourages more people to enter gainful employment, which reduces demands upon local social service agencies and saves taxpayer money. Raising the minimum wage will make small, local businesses more competitive with big box retailers.
Minimum wage earners shop local! Increasing their pay increases the prosperity of local businesses as well as sales tax revenue. Minimum wage earners spend nearly all of their income, making these dollars immediately circulate in the local economy, which means more successful businesses and more jobs for Eureka.
The Eureka Fair Compensation Act will mandate that our minimum wage workers share in a small way in the community's prosperity. This will encourage young families to stay in Eureka and stop the decline of our student population and schools.
People who work full-time should not live in poverty. This ordinance will ensure working families the dignity they have earned through their labor.
PRESS RELEASE: Living Wage Initiative Begins in Eureka
PRESS RELEASE
Wednesday, March 19, 2008
Living Wage Initiative Begins in Eureka
Proposed ballot measure would set a $10 minimum wage in the city
Yesterday at Eureka City Hall an initiative to set a $10 city minimum wage was filed with the City Clerk by community activist Bill Holmes with the help of The Alliance For A Fair Chance, a group of activists and workers committed to reducing poverty in our community.
The "Eureka Fair Compensation Act" is the working name of a ballot measure for the November ballot that was inspired by living wage campaigns in other cities across California and the country.
"It's time Eureka takes a stand on behalf of honoring the labor of the poorest workers in our community," said Holmes. "People who work full-time trying to raise a family shouldn't have to live in poverty because of the declining value of our minimum wage, which is barely half what it should be in inflation-adjusted dollars since 1968."
The ordinance would set Eureka's minimum wage at $10.00 an hour starting Jan. 1, 2009, although small businesses and non-profits would have a transition period for the first two years, wherein their minimum would be $9 in 2009 and $9.50 in 2010. Unlike other city minimum wage laws, the Eureka ordinance would index upwards to stay at a level $2 above that set by the state, preventing the excessive erosion of its purchasing power.
Once Eureka's City Attorney has responded to the campaign's Notice of Intent with an official Title and Summary presenting a basic explanation of the measure, proponents will have two-and-a-half months to collect approximately 1,200 signatures from Eureka voters to qualify it for the municipal election in November.
To contact Bill Holmes email: bill@fairchance.us
To contact the Alliance, write fairchance@fairchance.us,
For campaign updates and the text of the ordinance: eurekaworkers.org
Full Text of The Eureka Fair Compensation Act
THE EUREKA FAIR COMPENSATION ACT
CHAPTER 123: MINIMUM WAGE
§ 123.01. Title.
§ 123.02. Authority, Findings and Declarations.
§ 123.03. Definitions.
§ 123.04. Minimum Wage.
§ 123.05. Notice, Posting and Payroll Records.
§ 123.06. Retaliation Prohibited.
§ 123.07. Implementation and Enforcement.
§ 123.08. Waiver Through Collective Bargaining.
§ 123.09. Relationship to Other Requirements.
§ 123.10. Application of Minimum Wage to Welfare-to-Work Programs.
§ 123.11. Effective Date.
§ 123.12. Severability.
§ 123.13. Amendment by the City Council.
§ 123.14. Civil Actions.
§ 123.15. Remedies Cumulative.
§ 123.16. Administrative Penalties and Citations.
§ 123.17. Violations.
§ 123.18. Administrative Citation; Notice of Violation.
§ 123.19. Administrative Citation and Notice of Violation; Service.
§ 123.20. Administrative Citation; Contents.
§ 123.21. Administrative Appeal.
§ 123.22. Regulations.
§ 123.23. Judicial Review.
§ 123.24. Other Remedies Not Affected.
§ 123.25. Outreach.
§ 123.26. Reports.
§ 123.27. Inconsistent Legislation.
§ 123.01. TITLE.
This Chapter shall be known as the "Minimum Wage Ordinance," as enacted by the ballot initiative entitled “Eureka Fair Compensation Act” and as possibly amended by the Eureka City Council pursuant to the provisions of Section 123.13 of this Chapter.
§ 123.02. AUTHORITY, FINDINGS AND DECLARATIONS.
The people of Eureka find and declare the following:
(a) The people of the State of California are protected in their inalienable rights by the provisions of the Constitutions of the United States and the State of California.
(b) The people of the City of Eureka reserve to themselves the right to set and review wage standards, labor practices and economic development in the City of Eureka and to provide for policies which protect the livelihood and living standards of working women and men in the City of Eureka.
(c) This Chapter is adopted pursuant to the powers vested in the City of Eureka ("the City") under the laws and Constitution of the State of California and the City Charter including, but not limited to, the police powers vested in the City pursuant to Article XI, Section 7 of the California Constitution and Section 1205(b) of the California Labor Law.
(d) The people of the State of California reserve to themselves the right to enact municipal ordinances by direct affirmative vote in a regular election under, and within Division 9, Chapter 3 of the Elections Code.
§ 123.03. DEFINITIONS.
As used in this Chapter, the following capitalized terms shall have the following meanings:
"Department" shall mean the Community Development Department or such other City department or agency as the City shall by resolution designate.
"Director" shall mean the Community Development Director of the City of Eureka.
"City" shall mean the City of Eureka.
"Employee" shall mean any person who:
(a) In a particular week performs at least two (2) hours of work for an Employer within the geographic boundaries of the City; and
(b) Qualifies as an employee entitled to payment of a minimum wage from any employer under the California minimum wage law, as provided under Section 1197 of the California Labor Code and wage orders published by the California Industrial Welfare Commission, or is a participant in a Welfare-to-Work Program.
"Employer" shall mean any person, as defined in Section 18 of the California Labor Code, including corporate officers or executives, who directly or indirectly or through an agent or any other person, including through the services of a temporary services or staffing agency or similar entity, employs or exercises control over the wages, hours or working conditions of any Employee.
"Minimum Wage" shall have the meaning set forth in Section 123.04 of this Chapter.
"Small Business" shall mean an Employer for which fewer than ten (10) persons perform work for compensation during a given week. In determining the number of persons performing work for an Employer during a given week, all persons performing work for compensation on a full-time, part-time, or temporary basis shall be counted, including persons made available to work through the services of a temporary services or staffing agency or similar entity.
"Nonprofit Corporation" shall mean a nonprofit corporation, duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and (if a foreign corporation) in good standing under the laws of the State of California, which corporation has established and maintains valid nonprofit status under Section 501(c)(3) of the United States Internal Revenue Code of 1986, as amended, and all rules and regulations promulgated under such Section.
"Welfare-to-Work Program" shall mean the CalWORKS Program, Adult Assistance Program (CAAP) which includes the Personal Assisted Employment Services (PAES) Program, and General Assistance Program, and any successor programs that are substantially similar to them.
§ 123.04. MINIMUM WAGE.
(a) Employers shall pay Employees no less than the Minimum Wage for each hour worked within the geographic boundaries of the City.
(b) Beginning on the effective date of this Chapter, the Minimum Wage shall be an hourly rate of $10.00. To prevent inflation from eroding its value, beginning on January 1, 2010 and each year thereafter, the Minimum Wage shall increase by the amount necessary to correspond to the level of California state minimum wage plus $2.00.
(c) The Minimum Wage for Employers that are Small Businesses or Nonprofit Corporations shall phase in over a two year period in order to afford such Employers time to adjust. For such Employers, the effective date of this Chapter shall be January 1, 2011. For the first half of the transition period beginning January 1, 2009 and ending December 31, 2009, the Minimum Wage for Employees of such Employers shall be an hourly rate of $9.00. For the second half of the transition period beginning January 1, 2010 and ending December 31, 2010, the Minimum Wage for Employees of such Employers shall be an hourly rate of $9.50. Beginning January 1, 2011, the Minimum Wage for Employees of such Employers shall be the regular Minimum Wage established pursuant to Section 4(b) of this Chapter.
§ 123.05. NOTICE, POSTING AND PAYROLL RECORDS.
(a) By December 1 of each year, the Department shall publish and make available to Employers a bulletin announcing the adjusted Minimum Wage rate for the upcoming year, which shall take effect on January 1. In conjunction with this bulletin, the Department shall by December 1 of each year publish and make available to Employers, in all languages spoken by more than five percent of the Eureka work force, a notice suitable for posting by Employers in the workplace informing Employees of the current Minimum Wage rate and of their rights under this Chapter.
(b) Every Employer shall post in a conspicuous place at any workplace or job site where any Employee works the notice published each year by the Department informing Employees of the current Minimum Wage rate and of their rights under this Chapter. Every Employer shall post such notices in English, Spanish and any other language spoken by at least five percent of the Employees at the workplace or job site. Every Employer shall also provide each Employee at the time of hire the Employer's name, address and telephone number in writing.
(c) Employers shall retain payroll records pertaining to Employees for a period of four years, and shall allow the Department access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Chapter. Where an Employer does not maintain or retain adequate records documenting wages paid or does not allow the Department reasonable access to such records, it shall be presumed that the Employer paid no more than the applicable federal or state minimum wage, absent clear and convincing evidence otherwise.
§ 123.06. RETALIATION PROHIBITED.
It shall be unlawful for an Employer or any other party to discriminate in any manner or take adverse action against any person in retaliation for exercising rights protected under this Chapter. Rights protected under this Chapter include, but are not limited to: the right to file a complaint or inform any person about any party's alleged noncompliance with this Chapter; and the right to inform any person of his or her potential rights under this Chapter and to assist him or her in asserting such rights. Protections of this Chapter shall apply to any person who mistakenly, but in good faith, alleges noncompliance with this Chapter. Taking adverse action against a person within ninety (90) days of the person's exercise of rights protected under this Chapter shall raise a rebuttable presumption of having done so in retaliation for the exercise of such rights.
§ 123.07. IMPLEMENTATION AND ENFORCEMENT.
(a) Implementation. The Department shall be authorized to coordinate implementation and enforcement of this Chapter and may promulgate appropriate guidelines or rules for such purposes. Any guidelines or rules promulgated by the Department shall have the force and effect of law and may be relied on by Employers, Employees and other parties to determine their rights and responsibilities under this Chapter. Any guidelines or rules may establish procedures for ensuring fair, efficient and cost-effective implementation of this Chapter, including supplementary procedures for helping to inform Employees of their rights under this Chapter, for monitoring Employer compliance with this Chapter, and for providing administrative hearings to determine whether an Employer or other person has violated the requirements of this Chapter.
(b) Administrative Enforcement. The Department is authorized to take appropriate steps to enforce this Chapter. The Department may investigate any possible violations of this Chapter by an Employer or other person. Where the Department has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing. Where the Department, after a hearing that affords a suspected violator due process, determines that a violation has occurred, it may order any appropriate relief including, but not limited to, reinstatement, the payment of any back wages unlawfully withheld, and the payment of an additional sum as an administrative penalty in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued. A violation for unlawfully withholding wages shall be deemed to continue from the date immediately following the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date immediately preceding the date the wages are paid in full. Where prompt compliance is not forthcoming, the Department may take any appropriate enforcement action to secure compliance, including initiating a civil action pursuant to Section 7(c) of this Chapter and/or, except where prohibited by state or federal law, requesting that City agencies or departments revoke or suspend any registration certificates, permits or licenses held or requested by the Employer or person until such time as the violation is remedied. In order to compensate the City for the costs of investigating and remedying the violation, the Department may also order the violating Employer or person to pay to the City a sum of not more than $50 for each day or portion thereof and for each Employee or person as to whom the violation occurred or continued. Such funds shall be allocated to the Department and shall be used to offset the costs of implementing and enforcing this Chapter. The amounts of all sums and payments authorized or required under this Chapter shall be updated annually for inflation, beginning January 1, 2010, using the inflation rate corresponding to the average Consumer Price Index for urban wage earners and clerical workers in California. An Employee or other person may report to the Department in writing any suspected violation of this Chapter. The Department shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the Employee or person reporting the violation. Provided, however, that with the authorization of such person, the Department may disclose his or her name and identifying information as necessary to enforce this Chapter or for other appropriate purposes.
(c) Civil Enforcement. The Department, the City Attorney, any person aggrieved by a violation of this Chapter, any entity a member of which is aggrieved by a violation of this Chapter, or any other person or entity acting on behalf of the public as provided for under applicable state law, may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Chapter and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, without limitation, the payment of any back wages unlawfully withheld, the payment of an additional sum as liquidated damages in the amount of $50 to each Employee or person whose rights under this Chapter were violated for each day or portion thereof that the violation occurred or continued, reinstatement in employment and/or injunctive relief, and shall be awarded reasonable attorneys' fees and costs. Provided, however, that any person or entity enforcing this Chapter on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive or restitutionary relief, and reasonable attorneys' fees and costs.
(d) Interest. In any administrative or civil action brought for the nonpayment of wages under this section, the Department or court, as the case may be, shall award interest on all due and unpaid wages at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code, which shall accrue from the date that the wages were due and payable as provided in Part 1 (commencing with Section 200) of Division 2 of the California Labor Code, to the date the wages are paid in full.
§ 123.08. WAIVER THROUGH COLLECTIVE BARGAINING.
All or any portion of the applicable requirements of this Chapter shall not apply to Employees covered by a bona fide collective bargaining agreement to the extent that such requirements are expressly waived in the collective bargaining agreement in clear and unambiguous terms.
§ 123.09. RELATIONSHIP TO OTHER REQUIREMENTS.
This Chapter provides for payment of a minimum wage and shall not be construed to preempt or otherwise limit or affect the applicability of any other law, regulation, requirement, policy or standard that provides for payment of higher or supplemental wages or benefits, or that extends other protections including, but not limited to, the Eureka Fair Compensation Act.
§ 123.10. APPLICATION OF MINIMUM WAGE TO WELFARE-TO-WORK PROGRAMS.
The Minimum Wage established pursuant to Section 4(b) of this Chapter shall apply to Welfare-to-Work Programs under which persons must perform work in exchange for receipt of benefits. Participants in Welfare-to-Work Programs shall not, during a given benefits period, be required to work more than a number of hours equal to the value of all cash benefits received during that period, divided by the Minimum Wage. Where state or federal law would preclude the City from reducing the number of work hours required under a given Welfare-to-Work Program, the City may comply with this Section by increasing the cash benefits awarded so that their value is no less than the product of the Minimum Wage multiplied by the number of work hours required.
§ 123.11. EFFECTIVE DATE.
This Chapter shall become effective on January 1, 2009. This Chapter is intended to have prospective effect only.
§ 123.12. SEVERABILITY.
If any part or provision of this Chapter, or the application of this Chapter to any person or circumstance, is held invalid, the remainder of this Chapter, including the application of such part or provisions to other persons or circumstances, shall not be affected by such a holding and shall continue in full force and effect. To this end, the provisions of this Chapter are severable.
§ 123.13. AMENDMENT BY THE CITY COUNCIL.
This Chapter may be amended by the City Council as regards the implementation or enforcement thereof, but not as regards the substantive requirements of the Chapter or its scope of coverage.
§ 123.14. CIVIL ACTIONS.
In addition to the actions provided for in Section 123.07(c), the City Attorney may bring a civil action to enjoin any violation of this Chapter. The City shall be entitled to its attorney's fees and costs in any action brought pursuant to this section where the City is the prevailing party.
§ 123.15. REMEDIES CUMULATIVE.
The remedies, penalties and procedures provided under this Chapter are cumulative and are not intended to be exclusive of any other available remedies, penalties and procedures.
§ 123.16. ADMINISTRATIVE PENALTIES AND CITATIONS.
(a) Administrative Penalties; Citations. An administrative penalty may be assessed for a violation of the provisions of this Chapter as specified below. The penalty may be assessed by means of an administrative citation issued by the Community Development Director or other competent city officer.
(b) Administrative Penalty Amounts. In addition to all other civil penalties provided for by law, the following violations shall be subject to administrative penalties in the amounts set forth below:
| VIOLATION | PENALTY AMOUNT |
| Failure to maintain payroll records or to retain payroll records for four years – Administrative Code Section 123.05(c) | $500.00 |
| Failure to allow the Community Development Department to inspect payroll records – Administrative Code Section 123.05(c) | $500.00 |
| Retaliation for exercising rights under Minimum Wage Ordinance – Administrative Code Section 123.06 | $500.00 |
The penalty amounts shall be increased cumulatively by fifty percent (50%) for each subsequent violation of the same provision by the same employer or person within a three (3) year period. The maximum penalty amount that may be imposed by administrative citation in a calendar year for each type of violation listed above shall be $5,000. In addition to the penalty amounts listed above, the Community Development Director may assess enforcement costs to cover the reasonable costs incurred in enforcing the administrative penalty, including reasonable attorneys' fees. Enforcement costs shall not count toward the $5,000 annual maximum.
§ 123.17. VIOLATIONS.
(a) Separate and Continuing Violations; Penalties Paid Do Not Cure Violations. Each and every day that a violation exists constitutes a separate and distinct offense. Each section violated constitutes a separate violation for any day at issue. If the person or persons responsible for a violation fail to correct the violation within the time period specified on the citation and required under Section 123.18, the Community Development Director may issue subsequent administrative citations for the uncorrected violation(s) without issuing a new notice as otherwise required by Section 123.18(a). Payment of the penalty shall not excuse the failure to correct the violation nor shall it bar any further enforcement action by the City. If penalties and costs are the subject of administrative appeal or judicial review, then the accrual of such penalties and costs shall be stayed until the determination of such appeal or review is final.
(b) Payments to City; Due Date; Late Payment Penalty. All penalties assessed under Section 123.16 shall be payable to the City of Eureka. Administrative penalties and costs assessed by means of an administrative citation shall be due within thirty (30) days from the date of the citation. The failure of any person to pay an administrative penalty and costs within that time shall result in the assessment of an additional late fee. The amount of the late fee shall be ten (10) percent of the total amount of the administrative penalty assessed for each month the penalty and any already accrued late payment penalty remains unpaid.
(c) Collection of Penalties; Special Assessments. The failure of any person to pay a penalty assessed by administrative citation under Section 123.16 within the time specified on the citation constitutes a debt to the City. The City may file a civil action, create and impose liens as set forth below, or pursue any other legal remedy to collect such money.
(d) Liens. The City may create and impose liens against any property owned or operated by a person who fails to pay a penalty assessed by administrative citation. The procedures provided for by the City Council shall govern the imposition and collection of such liens.
§ 123.18. ADMINISTRATIVE CITATION; NOTICE OF VIOLATION.
(a) Notice and Opportunity to Cure. The Community Development Director ("Director") or his or her designee shall notify any person in violation of the Code provisions identified in Section 123.16(b) of such violation prior to the issuance of an administrative citation. Regardless of the manner of service of the notice under Section 123.19, the Director or his or her designee may post the notice of violation by affixing the notice to a surface in a conspicuous place on property that is (1) the person's principal place of business in the City, or (2) if the person's principal place of business is outside the City, the fixed location within the City from or at which the person conducts business in the City, or (3) if the person does not regularly conduct business from a fixed location in the City, one of the following: (i) the location where the person maintains payroll records if the notice of violation is for violation of Section 123.05(c), or (ii) the jobsite or other primary location where the person's employees perform services in the City at the time the notice is posted. The notice of violation shall specify the action required to correct or otherwise remedy the violation(s). The person or persons responsible for the violation shall be allowed not less than ten (10) days from the date of the notice of violation to establish that no violation occurred or such person or persons are not responsible for the violation, or correct or otherwise remedy the violation; provided, however, that the Director may, in his or her discretion, assign a longer period, not to exceed twenty-one (21) days, within which to correct or otherwise remedy each violation, or establish that no violation occurred or such person or persons are not responsible for the violation. The Director may consider the cost of correction and the time needed to obtain information, documents, data and records for correction in assigning a specific period of time within which to correct or otherwise remedy each violation, or obtain and submit evidence that no violation occurred or such person or persons are not responsible for the violation.
(b) Issuance of Citation. If the person or persons responsible for the violation fail to comply with any portion of a notice of violation within the time provided, the Director may issue an administrative citation to the violator. The administrative citation shall be issued on a form prescribed by the Community Development Department.
§ 123.19. ADMINISTRATIVE CITATION AND NOTICE OF VIOLATION; SERVICE.
Service of a notice of violation and an administrative citation under Section 123.16 may be accomplished as follows:
(a) The Director or his or her designee may obtain the signature of the person responsible for the violation to establish personal service of the citation; or
(b) (1) The Director or his or her designee shall post the citation by affixing the citation to a surface in a conspicuous place on the property described in Section 123.18. Conspicuous posting of the citation is not required when personal service is accomplished or when conspicuous posting poses a hardship, risk to personal health or safety or is excessively expensive; and
(2) The Director or his or her designee shall serve the citation by first class mail as follows:
(i) The administrative citation shall be mailed to the person responsible for the violation by first class mail, postage prepaid, with a declaration of service under penalty of perjury; and
(ii) A declaration of service shall be made by the person mailing the administrative citation showing the date and manner of service by mail and reciting the name and address of the person to whom the citation is issued; and
(iii) Service of the administrative citation by mail in the manner described above shall be effective on the date of mailing.
§ 123.20. ADMINISTRATIVE CITATION; CONTENTS.
The administrative citation under Section 123.16 shall include all the following:
(1) A description of the violation;
(2) The date and location of the violation(s) observed;
(3) A citation to the provisions of law violated;
(4) A description of corrective action required;
(5) A statement explaining that each day of a continuing violation may constitute a new and separate violation;
(6) The amount of administrative penalty imposed for the violation(s);
(7) A statement informing the violator that the fine shall be paid to the City of Eureka within thirty (30) days from the date on the administrative citation, the procedure for payment, and the consequences of failure to pay;
(8) A description of the process for appealing the citation, including the deadline for filing such an appeal; and
(9) The name and signature of the Director.
§ 123.21. ADMINISTRATIVE APPEAL.
(a) Period of Limitation for Appeal. Persons receiving an administrative citation may appeal it within fifteen (15) days from the date the citation is served. The appeal must be in writing and must indicate a return address. It must be accompanied by the penalty amount, specifying the basis for the appeal in detail, and must be filed with both the Community Development Director and the City Manager as indicated in the administrative citation.
(b) Hearing Date. As soon as practicable after receiving the written notice of appeal and the penalty amount, the City Manager his or her designee shall promptly select a hearing officer (who shall not be an employed in the Community Development Department) to hear and decide the administrative appeal. The hearing officer shall fix a date, time and place for the hearing on the appeal. Written notice of the time and place for the hearing may be served by first class mail, at the return address indicated on the written appeal. Service of the notice must be made at least ten (10) days prior to the date of the hearing to the person appealing the citation. The hearing shall be held no later than thirty (30) days after service of the notice of hearing, unless that time is extended by mutual agreement of the parties.
(c) Notice. Except as otherwise provided by law, the failure of any person with an interest in property affected by the administrative citation, or other person responsible for a violation, to receive a properly addressed notice of the hearing shall not affect the validity of any proceedings under this Chapter. Service by first class mail, postage prepaid, shall be effective on the date of mailing.
(d) Failure to Appeal. Failure of any person to file an appeal in accordance with the provisions of this section or to appear at the hearing shall constitute a failure to exhaust administrative remedies and a forfeiture of the penalty amount previously remitted.
(e) Submittals for the Hearing. No later than five (5) days prior to the hearing, the person to whom the citation was issued and the Community Development Director shall submit to the hearing officer, with simultaneous service on the opposing party, written information including, but not limited to, the following: the statement of issues to be determined by the hearing officer and a statement of the evidence to be offered and the witnesses to be presented at the hearing.
(f) Conduct of Hearing. The hearing officer appointed by the City Manager or their designee shall conduct all appeal hearings under this Chapter. The Community Development Director shall have the burden of proof in such hearings. The hearing officer may accept evidence on which persons would commonly rely in the conduct of their serious business affairs, including but not limited to the following:
(1) A valid citation shall be prima facie evidence of the violation;
(2) The hearing officer may accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation;
(3) The person responsible for the violation, or any other interested person, may present testimony or evidence concerning the violation and the means and time frame for correction.
The hearing shall be open to the public and shall be tape-recorded. Any party to the hearing may, at his or her own expense, cause the hearing to be recorded and transcribed by a certified court reporter. The hearing officer may continue the hearing and request additional information from the Community Development Director or the appellant prior to issuing a written decision.
(g) Hearing Officer's Decision; Findings. The hearing officer shall make findings based on the record of the hearing and issue a decision based on such findings within fifteen (15) days of conclusion of the hearing. The hearing officer's decision may uphold the issuance of a citation and penalties stated therein, may dismiss a citation, or may uphold the issuance of the citation but reduce, waive or conditionally reduce or waive the penalties stated in a citation or any late fees assessed if mitigating circumstances are shown and the hearing of officer finds specific grounds for reduction or waiver in the evidence presented at the hearing. The hearing officer may impose conditions and deadlines for the correction of violations or the payment of outstanding civil penalties. Copies of the findings and decision shall be served upon the appellant and the Community Development Director by certified mail.
(h) Hearing Officer's Decision. The decision of the hearing officer is final. If the hearing officer concludes that the violation charged in the citation did not occur or that the person charged in the citation was not the responsible party, the Community Development Department shall refund or cause to be refunded the penalty amount to the person who deposited such amount. The hearing officer's decision shall be served on the appellant by certified mail.
§ 123.22. REGULATIONS.
The Community Development Director may promulgate and enforce rules and regulations, and issue determinations and interpretations relating to the administrative penalty and citation system pursuant to sections 123.16 through 123.20, inclusive. The City Manager may promulgate and enforce rules and regulations, and issue determinations and interpretations relating to the conduct of administrative appeals under Section 123.21. Any rules and regulations promulgated by the Community Development Director or the City Manager shall be approved as to legal form by the City Attorney, and shall be subject to not less than one noticed public hearing. The rules and regulations shall become effective 30 days after receipt by the Clerk of the City, unless the City Council by resolution disapproves or modifies the regulations. The City Council’s determination to modify or disapprove a rule or regulation submitted by the Community Development Director or the City Manager shall not impair the ability of the Community Development Director or the City Manager to resubmit the same or similar rule or regulation directly to the City Council if the Community Development Director or the City Manager determines it is necessary to effectuate the purposes of this Chapter.
§ 123.23. JUDICIAL REVIEW.
(a) Procedures. After receipt of the decision of the hearing officer under Section 123.21, the appellant may file an appeal with the superior court pursuant to California Government Code Section 53069.4. The appeal shall be submitted within twenty (20) days of the date of mailing of the hearing officer's decision, with the applicable filing fee. The appeal shall state the reasons the appellant objects to the findings or decision.
(b) Review. The superior court shall conduct a de novo hearing, except that the contents of the Community Development Department’s file (excluding attorney client communications and other privileged or confidential documents and materials that are not discoverable or may be excluded from evidence in judicial proceedings under the Evidence Code, Civil Code, Code of Civil Procedure or other applicable law) shall be received into evidence. A copy of the notice of violation and imposition of penalty shall be entered as prima facie evidence of the facts stated therein.
(c) Filing Fee. The superior court filing fee shall be twenty-five ($25.00). If the court finds in favor of the appellant, the amount of the fee shall be reimbursed to the appellant by the City of Eureka. Any deposit of penalty shall be refunded by the City of Eureka in accordance with the judgment of the court.
§ 123.24. OTHER REMEDIES NOT AFFECTED.
The administrative citation procedures established in this Chapter shall be in addition to any other criminal, civil, or other remedy established by law which may be pursued to address violations of this Chapter. An administrative citation issued pursuant to this Chapter shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered.
§ 123.25. OUTREACH.
The Community Development Department shall establish a community-based outreach program to conduct education and outreach to employees.
§ 123.26. REPORTS.
The Community Development Department shall provide annual reports to the City Council on the implementation of the Minimum Wage Ordinance.
§ 123.27. INCONSISTENT LEGISLATION.
In the event that between March 7, 2008 and the effective date of this measure, legislation is enacted by the Eureka City Council or by the voters that is inconsistent with this Act, said legislation is void and repealed irrespective of the code in which it appears.
Subscribe to:
Posts (Atom)