(A) Introduction. The goal of this section is to seek voluntary compliance. Code Compliance Officers are empowered to use their discretion in working with residents to become compliant. Identification of violations may arise through citizen complaints, anonymous complaints or proactive observations. Verbal warnings or door hangers are strongly encouraged before any formal warnings are issued. The city has the option to pursue compliance administratively by civil/criminal citation or complaints resulting in mandatory fines and other consequences, through court intervention, and may collect any administrative costs associated with abatement procedures through liens and possible foreclosure, and civil collection actions.
(B) Pre-civil/criminal citation/complaint; notice of violation.
(1) If, after an inspection and after informal attempts have failed to encourage compliance with this article, the city shall serve the owner, owner’s statutory or authorized agent, occupant, lessee or person in control of the property with a notice of violation. Such notice shall contain the following:
(a) Legal identification of property;
(b) Statement of violations in sufficient detail to allow an owner or responsible party to identify and correct the problem;
(c) The expected compliance deadline of at least 10 calendar days from the date of the notice, unless otherwise stated;
(d) A reinspection date;
(e) Physical address, email address and telephone number of a city representative to contact;
(f) A warning that failure to comply may result in the filing of a civil or criminal misdemeanor case, depending on whether this violation is the first, second, third or fourth violation over a 24- consecutive-month period; and
(g) A warning that failure to comply may also result in an administrative or court-ordered abatement action by the city, for which the owner or responsible person will be financially liable through a lien process that may include foreclosure of the property.
(2) Any notice issued under this article shall be deemed effective on the date when written notice is hand-delivered or mailed certified, return receipt requested, to the individuals referenced above. If the notice is returned showing that the letter could not be delivered, a copy thereof shall be posted in a conspicuous place in or about the structure affected by the notice. Any recorded notice shall run with the land, and shall constitute legal notice for all purposes of this article to all parties and entities thereafter acquiring an interest in the property. Officers may use their discretion in granting extensions for compliance with the code, depending on the violators’ efforts to date and financial ability to comply.
(C) Civil/criminal citations and complaints.
(1) If the owner or other responsible party fails to comply with the notice of violation, a civil/criminal action to enforce the provision of this article may be commenced and a summons shall be issued in accordance with the procedures set forth in the Arizona Revised Statutes and applicable city ordinances. Jurisdiction of proceedings in this article shall be in the municipal court of the city.
(2) The City Manager, or his or her designee, shall be responsible for filing civil and criminal citations with the municipal court with the following minimum penalties:
(a) First offense during a 24-consecutive-month period: civil penalty of $350;
(b) Second offense during a 24- consecutive-month period: civil penalty of $600;
(c) Third offense and subsequent offenses within 24 months of first offense: criminal fine of $1,000, and other criminal penalties as a result of a class 1 misdemeanor conviction.
(3) The 24-month period shall be calculated from the dates the violations are committed. The owner or responsible party shall receive the progressively higher civil penalty upon a finding of responsibility for any violation of this article committed within 24 months of the commission of another violation for which the owner or responsible party was found responsible or was convicted. In no event shall the court reduce the minimum dollar penalties referenced above. A criminal case shall only be filed only after 2 successive civil violations have been committed within a 24-consecutive-month period.
(4) Every day any violation of any provision of this article continues shall constitute a separate violation or offense. The owner of record, as reflected in the Pinal or Maricopa County Recorder’s Office, may be presumed to be a person having lawful control over the building, structure or parcel of land that is the subject of the violation. If more than 1 person is recorded as the owner of the property, the persons may be jointly and severally presumed to be the persons having lawful control over the building, structure or parcel of land.
(D) Civil and criminal hearing procedure. A person lawfully served with a civil citation or complaint shall appear at the time and place stated in the citation or summons, or may appear prior to the time and admit or deny the allegations of the complaint. Allegations not denied at the time of appearance are deemed admitted. If the allegations are admitted, the court shall enter judgment for the city and impose the minimum dollar sanction as noted above. If the defendant denies the allegations, the court shall set the matter for hearing. Civil hearings are to be held informally and held without a jury, and the city is required to prove the allegations by a preponderance of the evidence. Technical rules of evidence do not apply, except for statutory provisions relating to privileged communications. If the defendant elects to be represented by counsel, the defendant shall so notify the court at least 10 court days prior to the hearing date. Hearings shall be recorded by technological devices, including tape recording or by stenographer. If the court finds in favor of the defendant, the court shall enter an order dismissing the citation or complaint. If the court finds in favor of the city, the court shall enter judgment for the city and impose the minimum dollar sanction noted above, or in the case of a criminal matter, shall order, in addition to the mandatory minimum dollar amount referenced above, up to $2,500, other terms such as up to 3 years probation, compliance deadlines, community service, up to 6 months jail time, and other reasonable terms as a consequence of a class 1 misdemeanor conviction.
(E) Appeal of civil/criminal court hearing. Any party may appeal the judgment of the municipal court to the Superior Court under A.R.S. § 12-124. Appeals from civil proceedings shall be in accordance with the Superior Court Rules of Appellate Procedure - Civil. Appeals from criminal proceedings shall be in accordance with the Superior Court Rules of Appellate Procedure - Criminal.
(F) Court-ordered abatement.
(1) In addition to any other options available to encourage compliance set forth in this article, the City Attorney may apply to the municipal court for an order permitting the city to abate any condition that constitutes a violation of this article.
(2) Pursuant to A.R.S. § 9-500.21, after notice has been provided to the owner and/or responsible party of the application and hearing date, the municipal court judge shall conduct a hearing on the City Attorney’s application, with prior notice to the owner or responsible party as required under the Code of Civil Procedure Service of Process rules. The hearing shall be informal, open to the public and be recorded by technological devices, including tape recording or stenographic devices. Evidence may be taken from any interested party and considered in determining whether a condition in violation of this article exists and what, if any, abatement action should be permitted. Any person who fails to appear after notice of the hearing may be deemed to have waived any right to introduce evidence. The court’s determination shall be based on the preponderance of evidence standard. Upon finding the abatement is appropriate, the court may order an administrative search warrant and/or a demolition, board-up, or clean-up abatement warrant.
(3) The reasonable costs of any abatement plus a 5% administrative fee as permitted by the court’s order, as well as 10% interest per annum, shall be the responsibility of the owner and/or responsible party, and it may be collected as a lien on the property or other lawful method by the city contained within this article or other applicable law.
(G) Inspection warrants.
(1) As set forth herein, the Code Official may seek the issuance of an inspection warrant by the judge, if the Code Official or his or her authorized designee is denied access to any property, building or structure that the Code Official has authority to inspect. The Code Official shall, in a supporting affidavit, establish that there is probable cause that a violation of this chapter or the city code exists, and that the proposed inspection is reasonable and necessary. Probable cause may be established based on any of the following:
(a) Previous inspections have shown violations and the present inspection is necessary to determine whether those violations have been abated.
(b) Complaints have been received by the Code Enforcement Division and presented to the issuing Code Enforcement Officer from persons, who by status or position have personal knowledge of the violations of law occurring on the subject property, building or structure.
(c) The inspection of the premises in question was to be made pursuant to an administrative plan containing neutral criteria supporting the need for the inspection.
(2) In executing an inspection warrant on an occupied property, the Code Enforcement Officer shall, before entry, make a reasonable effort to present the person’s credentials, authority and purpose to the owner, occupant, agent, manager or person in possession of the property, and produce the warrant or a copy thereof upon request. A copy of the warrant shall be left with the owner, occupant, agent, manager or person in possession of the property.
(3) In executing an inspection warrant on an unoccupied property, the Code Enforcement Officer authorized to execute the warrant need not inform anyone of the person’s authority and purpose, but may promptly enter the designated property if it is at the time unoccupied or not in the possession of any person, or at the time reasonably believed to be in such condition. In such case, a copy of the inspection warrant shall be conspicuously posted on the property.
(4) Any person who willfully refuses to permit an inspection lawfully authorized by warrant issued pursuant to this section is guilty of a class 1 misdemeanor.
(5) An inspection warrant shall be executed within 5 calendar days from its issuance. The warrant shall be returned to the judge within 3 court business days after the inspection warrant is executed.
(H) Administrative abatement/lien procedure.
(1) The city may, as another option, administratively abate the illegal conditions by first serving a notice to abate, which shall include the following:
(a) Legal identification of property;
(b) Statement of violations in sufficient detail to allow an owner or responsible party to identify and correct the problem;
(c) The expected compliance deadline of at least 30 calendar days from the date of the notice;
(d) Reinspection date;
(e) Address and telephone number of a city representative to contact;
(f) Cost estimate to correct the violation, including labor and benefits of officers;
(g) A warning that if the violation is not corrected within the 30- calendar-day deadline, the city may abate the nuisance and assess the owner, his or her statutory or authorized agent, lessee, occupant, or person in control of the property the cost of such abatement plus a 5% administrative charge, and record a lien against the property for payment of the assessments that may result in foreclosure of the property;
(h) A warning that failure to comply may also result in the filing of a civil or criminal misdemeanor case, depending on whether this violation is the first, second, third or fourth violation over a 24-consecutive- month period; and
(i) A reminder that the notice may be appealed by filing a notice of appeal at the Development Services Department within 20 calendar days after the notice was served; the Board of Adjustment and Appeals will hear and decide the appeal within 60 calendar days of filing the notice of appeal.
(2) If a property owner or responsible party fails to comply with the notice within the 30-calendar- day deadline, Code Compliance Officers may work with the property owner or responsible party and grant an extension. However, if compliance is not forthcoming, the city may correct or abate the conditions as described in the notice. The city shall pay the cost and expense of the abatement from any appropriation made available for that purpose.
(3) Upon commencement of action on the property, the city shall assess the property for the cost of work performed, including but not limited to, all additional inspections and other incidental connected costs, and for associated legal costs plus a 5% administrative fee. If the assessment is paid in full, including 10% interest annually calculated, the city shall release the assessment.
(4) In the event it is necessary to enforce the assessment by sale, the sale shall be made from a judgment of foreclosure and order of sale. The city shall have the right to enforce the assessment in the Superior Court of Pinal or Maricopa County at any time after recording, but failure to enforce the assessment shall not affect its validity. The recorded assessment shall be prima facie evidence of the truth of all matters recited therein, and of the regularity of all proceedings prior to the recording. Prior assessments or liens for the purposes provided for in this article shall not be a bar to a subsequent assessment or lien. Any number of liens or assessments on the same parcel may be enforced in the same action.
(5) The assessment is prior and superior to all other liens, obligations, mortgages or other encumbrances, except liens for general taxes. The city may dispose of any property or material removed from real property as a result of abatement in any manner, including but not limited to, destruction or donation.
(I) Boarding, securing, vacating and demolition.
(1) If it is determined that a structure constitutes a public nuisance as defined in this article, the City Manager, or his or her duly appointed agent, may declare such structure a hazard with great potential for actual and serious physical harm. After notice is communicated to any owner of record in a notice to secure the structure, and the owner does not secure the structure to city specifications, the hazard may be summarily abated by the city through boarding and fencing. The notice to secure shall be in the same format and shall be served in the same manner as a notice to abate, as referenced above, and all associated costs to board and fence may be collected pursuant to a lien in the same manner as a notice to abate. If however, the conditions pose an imminent hazard, the City Manager or his or her designee may order immediate abatement without notice. Such abatement shall be limited to the minimum work necessary to remove the hazard.
(2) Whenever the City Manager or his or her designee finds that a structure contains an imminent hazard or health hazard, he or she may declare it unfit for human occupancy and order it to be vacated or to remain vacant. A structure declared unfit for occupancy shall not be leased, rented or occupied until it has been reinspected and deemed fit for occupancy by the city. City Code Compliance Officers shall post a legible notice on the principal entrance stating “do not enter, unsafe to occupy”. Entry will be considered a trespass under A.R.S. § 13-1504, a class 1 misdemeanor.
(3) Prior to demolishing a structure, the city shall issue a notice of intent to demolish structure to the owner or responsible party with any legal interest in the property, and may record the notice in the Pinal or Maricopa County Recorder’s office. This notice and abatement and all associated demolition costs shall be enforced in the same manner as a notice to abate.
(4) Any structure that has been declared to be an imminent hazard by the City Manager or his or her designee, shall immediately be vacated and shall not be re-occupied until the City Manager or his or her designee has issued a certificate of compliance, indicating that imminent hazards do not exist and that incipient hazards and health hazards are acknowledged and minimized by the persons responsible for the property. A legible notice, as referenced above, shall be posted on the principal entrance prohibiting entry. No person occupying a structure after the city has posted on the structure a notice of its hazardous condition, shall be eligible for relocation assistance or be considered a displaced person.
(J) Appeal of notice to abate, notice to secure, and notice of intent to demolish. An appeal of a notice to abate, notice to secure and notice of intent to demolish shall be filed in writing with the Development Services Department Director, or his or her designee, within 20 calendar days after the notice was served. An appellate hearing shall be scheduled by the Development Services Department Director, or his or her designee, before the Board of Adjustment and Appeals no later than 60 calendar days after the notice of appeal has been filed, and such hearing must have been held and be concluded within the same time period.
(K) Grounds for appeal.
(1) The following are appropriate grounds for an appeal:
(a) The claim that the property or building subject to the notice is not in violation under the code.
(b) A claim that the true intent of the code has been incorrectly interpreted.
(c) A claim that the statement for costs for correcting or abating the violation is excessive.
(2) The Board may affirm, reverse or modify the notice. The Board shall conduct the hearing as it does other Board matters in its quasi-judicial role. There shall be no fee for filing an appeal with the Board.
(3) The filing of the notice of appeal shall act as an automatic stay of enforcement of any compliance deadlines until the Board makes its final determination. Upon making its final determination and after it has been served on the appellant, the stay terminates and the violator has the balance of the time left set forth in the notice. Failure to comply within this time period may result in the issuance of a civil or criminal citation or the filing of a complaint and abatement procedures, subjecting the property owner and/or responsible party to liens and possible foreclosure.
(4) Failure of a person to file an appeal shall constitute a waiver of the right to a hearing of the appeal before the Board, and such person shall be estopped to deny the validity of any order or action of the city that could have been timely appealed.
(5) Once the Board has rendered its decision, a party may apply to the Superior Court within 30 calendar days for further appellate relief in accordance with the Arizona Rules of Procedure for Special Actions. The filing of a special action will not stay enforcement of any notice unless ordered by a court of competent jurisdiction.
(Ord. 1255, passed 1-3-2006; Am. Ord. 1467, passed 12-4-2018)