§ 1.98  CIVIL PENALTIES.
   Subd. 1.   Purpose.
      A.   The City Council seeks to offer an alternative method of enforcement for city code violations rather than relying on the criminal court system. The formal criminal prosecution process does not provide an environment to adequately address the unique and sensitive issues that are involved in city code violations, including, but not limited to, neighborhood concerns, livability issues, economic impact, physical limitations of the offenders and the stigma and unintended consequences of being charged with or convicted of a misdemeanor offense. In addition, the court system is a slow, overburdened and methodical process that is not conducive to dealing with the violations in a prompt and timely manner. Finally, the penalties afforded the criminal court system are restricted to fines or physical confinement, which are not always effective solutions to address city code violations.
      B.   In order to provide more flexibility in addressing city code violations on an individualized basis that will be more efficient and effective, the City Council finds that an alternative enforcement process is necessary. Therefore, to protect the health, safety and welfare of the citizens of the city, it is the City Council's intent to create a process for the use and imposition of administrative civil penalties that will provide the public and the city with a more effective alternative method for addressing city code violations.
   Subd. 2.   Alternative methods of enforcement. A violation of the city code is a misdemeanor pursuant to § 1.99; however, this section seeks to gain compliance with the city code as an alternative to the commencement of any formal civil or criminal court action. The administrative civil penalties proceedings are in addition to any other legal or equitable remedy available to the city for city code violations. The city may, in its discretion, choose to issue an administrative citation pursuant to other civil remedies or may initiate criminal charges instead.
   Subd. 3.   Authority to issue compliance letters and administrative citations. The city employees and agents identified below are authorized to issue compliance letters and administrative citations for violations of the city code:
      A.   Any licensed peace officer of the city's Police Department, or the County Sheriff, or any Deputy Sheriff, shall have the authority to enforce any provision of this code.
      B.   The following individuals designated in this section or by the City Council shall have the authority to administer and enforce the provisions specified:
         1.   City Building Official;
         2.   City Clerk;
         3.   Public Works Director or designated agent;
         4.   City Administrator;
         5.   City Planner and/or Zoning Administrator;
         6.   Code Enforcement Officer (a/k/a housing, building and zoning inspectors);
         7.   Community Service Officer;
         8.   Fire Chief;
         9.   Fire Inspector; and
         10.   Park and Recreation Director or designated agent.
      C.   Any city official or employee designated by this code who has the responsibility to perform a duty under this code may, with the permission of a licensee of a business or owner of any property or resident of a dwelling, or other person in control of any premises, inspect or otherwise enter any property to enforce compliance with this code.
      D.   Inspection of buildings and premises - general rule. For the purpose of safeguarding the health and safety of the general public and of the occupants of all buildings or to determine compliance with the code, an order or a permit or license, it is the duty of any authorized officer to conduct inspections to determine the condition of the buildings and premises located within the city. For the purpose of making the inspection, the authorized officer is authorized to enter, examine and survey the building or premises at all reasonable times.
         1.   Notice. Prior to making the inspection, the authorized officer will inform the occupants of the building or premises to be inspected of the date and time of the inspection by personal service or regular mail postmarked not less than 48 hours prior to the time the inspection is made. The occupants may also be notified by text message or email if they provide said information for notification purposes.
         2.   Access. After the written notice has been given, the owner, occupant or operator of the building will give the authorized officer free access to the building and its premises, for the purpose of the inspection, examination or survey, provided that the inspection, examination or survey must not have for its purpose the harassment of the owner or occupant and the inspection, examination or survey is made so as to cause the least amount of inconvenience to the owner or occupant. If access is refused, the reason for refusal of access will be given in writing.
         3.   Emergency access. The authorized officer must be allowed immediate entry:
            a.    At any time when in the opinion of the authorized officer an actual emergency tending to create an immediate danger to public health and safety exists; or
            b.   At any time when the inspection, examination or survey may be requested by the owner or occupant.
      E.   Application for search warrant. Upon a refusal of any owner or occupant to permit the authorized officer access to a dwelling, dwelling unit or premises to make an inspection, and upon a belief of probable cause that the dwelling, dwelling unit or premises does not conform to the requirements of this code, the authorized officer may make application to the appropriate court for an order or warrant directing the inspection and search of the dwelling, dwelling unit or premises for its conformity to the requirements of this code, and any evidence or information from the inspection or search may be used in any court proceedings.
      F.   Interference with official duties. It may be a crime to prevent, delay or interfere with representatives of the city while they are engaged in the performance of his or her duties.
   Subd. 4.   Compliance letter.
      A.   Contents of compliance letter. If a city employee or agent determines that a city code violation has occurred, when appropriate, a compliance letter shall be issued. The compliance letter shall contain the following information:
         1.   A description or address of the property on which the city code violation has occurred;
         2.   The nature of the violation, including a reference to the appropriate city code section;
         3.   A compliance deadline, providing a reasonable time for compliance based on the nature of the violation; and
         4.   A statement that failure to correct the violation may result in the imposition of an administrative citation, including a civil penalty and stating the amount of the penalty as provided in the fee schedule.
      B.   Service of compliance letter. The compliance letter may be served on the offender by any one of the following methods: certified mail, regular mail sent to the last known legal address, by personal service or by posting a copy in a conspicuous place in or about the building or property affected by the letter.
      C.   Exceptions to issuance of a compliance letter. For violations of any of the following sections, the city shall not be required to issue a compliance letter and may proceed directly to issuance of an administrative citation as provided in division (E) below.
         1.   Repeat offender. If the same offender commits a subsequent violation within 24 months after a compliance letter has been issued for a same or similar offense.
         2.   License violations. For any license violations, including, but not limited to, not having a license.
         3.   Fire prevention violations. For violations of Minnesota State Fire Code.
         4.   Emergency situations. When a condition exists that requires immediate action to protect the public health, safety and welfare.
         5.   Disorderly conduct or other similar behavior that tends to disrupt, injure or annoy a reasonable person for which a compliance letter would be moot, as the conduct or behavior has terminated.
   Subd. 5.   Administrative citation.
      A.   Generally.
         1.   Upon the failure to correct the violation specified in the compliance letter within the time frame established in the compliance letter or any extension thereof granted by the city, or for any offense for which a compliance letter is not required, an administrative citation may be issued.
         2.   The administrative citation shall be served as required in Subd. 4, Subpar. B. of this section and shall contain the following information:
            a.   A description or address of the property on which the city code violation has occurred;
            b.   Reference to the city code that is alleged to be violated;
            c.   The amount of the administrative civil penalty for the specific city code violation, which shall be due and payable to the city within 30 days of the date the citation is mailed or personally served;
            d.   A statement that the violation must be corrected or a subsequent administrative or  criminal citation may be issued;
            e.   A statement that the city code violation and the amount of the administrative civil penalty may be contested in the manner set forth in Subd.4, Subpar. E.2. of this section; and
            f.   A statement that failure to pay the administrative civil penalty may result in it being assessed against the property as provided in M.S. Ch. 429, as it may be amended from time to time.
      B.   Payment of penalty and correction of violation. If the offender pays the administrative civil penalty and corrects the city code violation, no further action will be taken for that same violation. Subsequent (new) violations within a 24 month period will be considered repeat offenses and fines will be increased as follows:
         1.   Subsequent violations. If a second citation for a code offense is issued by the city to the alleged violator and/or the owner of the property upon which the violation has occurred within 24 months of the issuance of a previous citation or the same code offense, the civil penalty shall increase by 25% over the scheduled civil penalty amount. If a third citation for a code offense is issued by the city to the alleged violator and/or the owner of the property upon which the violation has occurred within 24 months of the issuance of a previous citation for the same code offense, the civil penalty shall increase by 50% over the scheduled civil penalty amount. If a fourth citation for a code offense is issued by the city to the alleged violator and/or the owner of the property upon which the violation has occurred within 24 months of the issuance of  a previous citation for the same code offense, the civil penalty shall increase by 100% over the scheduled civil penalty amount and double thereafter to a maximum of $2,000.
         2.   Example. First offense is $100; Second offense is $125; Third offense is $150, Fourth offense is $200; Fifth offense is $400; Sixth offense is $800.
      C.   Payment of penalty without correction of violation. If the offender pays the administrative civil penalty but fails to correct the city code violation, the city may issue a subsequent administrative citation, initiate criminal proceedings or initiate any other proceedings or remedies available in order to enforce correction of the city code violation.
      D.   No payment of penalty and no correction of violation. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue, and any person responsible for the violation shall correct or remedy the violation or defect within the time required. If the offender fails to pay the administrative civil penalty and fails to correct the city code violation, the city may do any of the following, or any combination thereof:
         1.   Assess the administrative civil penalty against the property pursuant to M.S. Ch. 429, as it may be amended from time to time;
         2.   Issue a subsequent administrative citation, thereby commencing a new administrative penalties process. When not otherwise specified, each ten days that prohibited conditions are maintained shall constitute a separate offense;
         3.   Initiate criminal proceedings; and/or
         4.   Initiate other enforcement action authorized by law, including, but not limited to, the enforced removal of prohibited conditions.
         5.   Failure to pay an administrative citation for which the costs cannot be assessed shall be a misdemeanor.
      E.   Contesting the administrative citation.
         1.   An offender receiving an administrative citation may contest the alleged city code violation.
         2.   In order to contest the administrative citation, the offender must notify the City Clerk in writing within ten calendar days after the citation is mailed or otherwise served, complete a hearing application stating that the offender contests the alleged violation, and pay a $75 non-refundable filing fee.
      F.   Administrative citation hearing.
         1.   Scheduling and notice of the hearing. After receipt of the written notice to contest the citation as provided in Subpar. E. above, a hearing before an independent hearing officer shall be scheduled to be held within 60 days, unless otherwise agreed to in writing by the parties. Notice of the hearing must be served in person or by first class mail to the hearing applicant at the address provided by the applicant, no less than 20 days in advance of the scheduled hearing, unless a shorter timeline is a accepted by both parties. Service shall be deemed complete upon deposition the notice of hearing in the U.S. Mail properly addressed to the provided by the offender or the last know legal address with postage prepaid.
         2.   Independent hearing officer. An independent hearing officer, licensed to practice law in the State of Minnesota, shall preside over the administrative citation hearing. The City Council will periodically approve a list of individuals from which the City Administrator will randomly select a hearing officer to hear and determine a matter for which the hearing is requested. The person who has requested the hearing has a right to request, no later than 15 days before the date of the hearing, that the assigned Hearing Officer be removed from the case. One such request for each case will be granted by the City Administrator. A subsequent request must be directed to the assigned hearing officer who will decide whether the hearing officer can fairly and objectively review the case. If such a finding is made, the Hearing Officer shall assign another Hearing Officer. The Hearing Officer is not a judicial officer, but is a public officer as defined by M.S. § 609.415. The Hearing Officer shall not be a current or former employee of the city.
         3.   Conduct of the administrative citation hearing.
            a.   At the hearing, both parties may be represented by counsel, shall have the opportunity to present testimony, shall be able to call and question witnesses and introduce any exhibits; however, strict rules of evidence shall not apply.
            b.   The hearing officer shall receive and give weight to the evidence, including hearsay evidence.
            c.   The hearing shall be recorded and a full record of the proceedings shall be maintained by the city according to its data retention schedule.
         4.   Authority of hearing officer. The independent hearing officer has the authority to do any of the following, or a combination thereof:
            a.   Make a finding that a violation has occurred;
            b.   Require compliance with the city code within a specified time frame; and/or
            c.   Make a finding that no violation has occurred and dismiss the administrative citation.
         5.   Decision and order.
            a.   The Hearing Officer may announce a decision at the conclusion of the hearing or may take the matter under advisement.
            b.   The hearing officer shall issue a decision in the form of an order and shall serve a written copy of the order upon the parties no later than ten days after the hearing.
            c.   Any administrative civil penalty that the independent hearing officer imposes must be paid to the city within the time frame established in the order. If no date is specified, it must be paid within 30 days of the hearing officer's order.
            d.   If the administrative civil penalty is not paid, the city may assess the civil penalty against the owner's property pursuant to M.S. Ch. 429, as it may be amended from time to time.
            e.   If the hearing officer determines that no violation occurred, then the city may not proceed with criminal prosecution for the same act or conduct.
         6.   Finding of violation and payment of costs of hearing. If the violation is upheld, then the offender must pay for the cost of the hearing, not to exceed $1,000.
         7.   Failure to appear. Failure to appear at the hearing shall result in a default judgment against the party who fails to appear. If the offender fails to appear, the administrative citation shall be sustained and the fee for the cost of the hearing shall be imposed. If the city fails to appear, the administrative citation shall be dismissed and the filing fee shall be refunded.
      G.   Appeal. The hearing officer's decision is final and may only be appealed to the Minnesota Court of Appeals.
      H.   Schedule of administrative civil penalties.
         1.   The city shall adopt a fee schedule of administrative civil penalties for city code violations by resolution.
         2.   A violation of any provision of the city code is an administrative offense which may be subject to an administrative citation and civil penalties pursuant to this section.
         3.   The maximum amount of an administrative civil penalty, for each separate offense, may not exceed twice the maximum fine authorized by state law for misdemeanor offenses; or the maximum fine authorized by state law for an administrative process.
      I.   Applicable laws. Where differences occur between provisions of this chapter and other applicable code sections, this chapter applies.
(Ord. 642, passed 10-17-16)