The City Attorney will determine whether the independent hearing officer conducting the hearing will be an administrative law judge or a hearing officer.
   (a)   Hearing officers. The City Manager shall periodically approve a list of lawyers, from which the City Attorney shall select as a hearing officer, to hear a matter for which a hearing is requested. The person requesting a hearing shall have the right to request, no later than ten calendar 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 automatically by the City Attorney. A subsequent request shall be directed to the assigned hearing officer, who will decide whether he or she cannot fairly and objectively review the case. If such a finding is made, the hearing officer shall remove himself or herself from the case, and the City Manager 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, as it may be amended from time to time. The hearing officer shall not be a current city employee or have a personal or financial interest in the outcome of the case.
   (b)   Administrative law judges. As an alternative to a city-appointed hearing officer, the City Attorney may engage the services of the Minnesota Office of Administrative Hearings. That Office will appoint an administrative law judge to oversee a hearing held at Bloomington Civic Plaza. Hearing dates will be set in accordance with a pre-determined schedule with the Office of Administrative Hearings. New contests to civil fines will be set for the next scheduled hearing date. If the person responsible for the violation cannot appear at the initially scheduled hearing, the hearing will be continued to the following scheduled hearing date. Hearing dates will be set and confirmed with the City Attorney’s office.
   (c)   Subpoenas. Upon the hearing officer’s own initiative or upon written request of an interested party demonstrating the need, the hearing officer may issue a subpoena for the attendance of a witness or the production of books, papers, records or other documents that are material to the matter being heard. The party requesting the subpoena shall be responsible for serving the subpoena in the manner provided for civil actions and for paying the statutory fees and expenses of any witness. A person served with a subpoena may file an objection with the hearing officer promptly but not later than the time specified in the subpoena for compliance. The hearing officer may cancel or modify the subpoena if it is unreasonable or oppressive. Any person who, without just cause, fails or refuses to attend and testify or to produce the required documents in obedience to a subpoena shall be guilty of a misdemeanor. Alternatively, the party requesting the subpoena may seek an order from district court directing compliance. When a hearing occurs before an administrative law judge, the parties may request subpoenas following the procedures established by the Office of Administrative Hearings.
   (d)   Notice of hearing and continuances. Notice of the name of the assigned independent hearing officer, date, time and place of the hearing must be served by the city in person or mailed to the person responsible for the violation at least 14 calendar days in advance of the scheduled hearing, unless a shorter time is accepted by all parties. Authorization for continuances shall be granted by the assigned independent hearing officer only upon good cause shown. Subsequent requests for a continuance, or requests made less than five business days prior to the scheduled mediation or hearing, shall only be granted in the case of extreme emergency, such as the death or incapacitating illness of a party, or by the agreement of the parties.
   (e)   Mediation. At the time of the hearing before the independent hearing officer, either party may request mediation of the dispute. If the violation cannot be mediated, then the parties will move on to the hearing that same day with the same independent hearing officer. No continuances will be granted following mediation.
   (f)   Hearing procedures. At the hearing, the parties shall have the opportunity to present testimony and question any witnesses, but strict rules of evidence shall not apply. The independent hearing officer shall tape record the hearing and receive testimony and exhibits, and the full record of the hearing shall be kept. The independent hearing officer shall receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent people in the conduct of their affairs. In the case of an administrative law judge, the hearing will be conducted in accordance with the procedures set forth by the Office of Administrative Hearings. Failure to attend the hearing as scheduled shall be deemed an admission of the charges set forth in the administrative citation or the nuisance service call fee notice.
   (g)   Authority of independent hearing officer. The independent hearing officer shall have the authority to:
      (1)   Mediate and enforce a settlement of the disputed administrative citation or excessive nuisance service call fee;
      (2)   Determine whether the city has proven by a preponderance of the evidence that the facts serving as the basis for the administrative citation or excessive nuisance service call fee occurred;
      (3)   Dismiss the administrative citation or declaration of a public nuisance issued under § 12.04 of this city code based upon a finding that the city failed to provide sufficient evidence to prove the violation or charge;
      (4)   Impose the scheduled fine or affirm the excessive nuisance service call fee imposed under § 12.15 of this city code or affirm the costs of public health nuisance abatement to be assessed under § 12.06 of this city code;
      (5)   Reduce, stay or waive a scheduled fine or the excessive nuisance service call fee imposed under § 12.15 of this city code or the costs of abatement to be assessed under § 12.06 of this city code either unconditionally or upon compliance with appropriate conditions; or
      (6)   Make the final determination as to the apportionment of the costs of mediation.
      The independent hearing officer shall not have the authority to declare any portion of the city code invalid or to interpret the city code in a manner that is inconsistent with the interpretation of the City Attorney. The decision of a hearing officer in any case, shall have no precedential value in future cases.
   (h)   Imposition of civil fine by independent hearing officer. When imposing a fine for a violation, the independent hearing officer may consider any or all of the following factors but in the case of ordinance violations, the fine must not exceed the amount of the maximum fine if each violation had been prosecuted as a misdemeanor, and in the case of civil fines imposed for excessive nuisance service calls pursuant to § 12.15 of this city code, the civil fine may not exceed the actual costs of providing excess law enforcement services up to $2,000 for each separate call subject to a fee:
      (1)   The duration of the violation;
      (2)   The frequency or recurrence of the violation;
      (3)   The seriousness of the violation;
      (4)   The history of the violation;
      (5)   The violator’s conduct after issuance of the notice of hearing;
      (6)   The good faith effort by the violator to comply;
      (7)   The economic impact of the fine on the violator;
      (8)   The impact of the violation upon the community;
      (9)   Prior record of city code violations; or
      (10)   Any other factors appropriate to a just result.
   (i)   Fines for continuing violations. The independent hearing officer may exercise discretion to impose a fine for more than one day of a continuing violation but only upon a finding that:
      (1)   The violation caused a serious threat of harm to the public health, safety or welfare; or
      (2)   The accused intentionally and unreasonably refused to comply with the code requirement. The hearing officer’s decision and supporting reasons for continuing violations must be in writing.
   (j)   Written report of independent hearing officer. The decision of the independent hearing officer shall be in writing and contain findings of fact and conclusions of law. The written report shall be served on the parties by mail within ten-calendar days of the last date of the hearing.
   (k)   Finality of decision. The decision of the independent hearing officer shall be final without any further right of administrative appeal.
   (l)   Payment for cost of hearing. The cost of the hearing before the independent hearing officer shall be apportioned equally between the person requesting the hearing and the city. At the time the request for a hearing is made, the city shall provide the requestor with an estimate of the requesting party’s share of that cost. The requestor must provide payment of that estimated cost in cash or cash equivalent to the city not later than seven days in advance of the scheduled mediation or hearing. However, the city has authority to reduce the requesting person’s share of the costs where that person can demonstrate indigency by clear and convincing evidence. Proof of indigency can be demonstrated by the person’s receipt of means tested governmental benefits or a demonstrated lack of assets or current income. Such proof shall be presented preliminarily to the City Attorney’s office for determination of the amount of the prepayment in advance of the hearing. However, the independent hearing officer at the time of the hearing shall make specific findings as to whether the requesting person is indigent and make a final determination as to that party’s share of the hearing’s costs. In all cases where the person requesting a hearing is unable to attend and fails to request a continuance of the hearing at least 48 hours in advance of the scheduled hearing, all costs incurred by the city attributable to the requested hearing shall be charged to the requesting party and deducted from any prepayment made. Where the requesting party’s one-half share of the costs of the hearing exceed the requesting party’s prepayment, payment thereof must be made within 25 calendar days of the date the city serves, by regular mail, notice of the amount due and owing to the address on record for the requesting party. Failure to pay the remaining costs when due will result in the assessment of a late payment fee of 10% of the amount due and owing. This amount shall constitute a personal obligation of the violator that may be collected by any appropriate legal means. If the initial fine was imposed for a property-related violation, including excessive nuisance service calls pursuant to § 12.15 of this city code, the city may assess the applicable property pursuant to § 1.19 of this city code.
(Ord. 99-32, passed 10-4-1999; Ord. 2000-1, passed 1-3-2000; Ord. 2006-13, passed 4-17-2006; Ord. 2007-36, passed 10-22-2007; Ord. 2008-15, passed 5-5-2008; Ord. 2011-19, passed 8-15-2011; Ord. 2016-24, passed 10-24-2016)