(1) Scope: This section provides for an administrative remedy for any violation of this chapter, chapters 11, 12 and/or 13 of this code, including continuing violations related to any provisions of this chapter, chapters 11, 12, and/or 13 of this code. This remedy may be exercised in place of, or in addition to, any other administrative, criminal, civil, or equitable remedy allowed by law. (Ord. 2789, 10-5-2009)
(2) Procedure For Service:
A. Unless otherwise provided, service of the first violation warning that is required by this section may be made by delivery of a copy to the responsible person or his/her agent, or if neither is to be found within the city, by mailing a copy to the responsible person or his/her agent at his/her last known address, by regular mail. Service by mail shall be deemed complete upon mailing. The citing official must, in writing in the case file along with his/her signature, declare the date of mailing or delivery. Failure to receive any notice does not affect the validity of the proceedings conducted under this section.
B. Unless otherwise provided, service of any other document or notice required by this section, other than the first violation warning, may be made by delivery of a copy to the responsible person or his/her agent, or if neither is to be found within the city, by certified mail. Service by certified mail shall be deemed complete upon mailing. The citing official must, in writing in the case file along with his/her signature, declare the date of mailing or delivery, together with the acknowledgment of receipt, signed by the responsible person or his/her agent, if one is obtained. Failure to receive any notice does not affect the validity of the proceedings conducted under this section. (Ord. 2958, 3-3-2014)
(3) Definitions:
ADMINISTRATIVE CITATION: A written notice and applicable fine to a responsible person issued by the citing official that a continued violation of this chapter, chapters 11, 12 and/or 13 of this code has occurred without being remedied.
CITING OFFICIAL: Any planning and zoning department staff member.
LEGAL INTEREST: Any ownership interest of any "responsible person" as herein defined in real or personal property as evidenced by title or ownership documents or instruments recorded with the Canyon County recorder's office or on file with, or in possession of, any other governmental entity. "Legal interest" shall also include the property interest of lessees or tenants of real property, as well as all sublessees thereof.
RESPONSIBLE PERSON: Any person whom the citing official determines is responsible for causing, maintaining, permitting, or allowing a violation of this chapter, chapters 11, 12, and/or 13 of this code. The term "responsible person" includes, but is not limited to: any person who has an ownership or possessory interest in real or personal property; any agent thereof with actual or apparent authority, possession or control of real or personal property; or any other person who creates, maintains, permits or allows a violation of this code.
VIOLATION WARNING: A written notice to a responsible person issued by the citing official that there exists a violation of this chapter, chapters 11, 12 and/or 13 of this code with instructions on how to remedy said violation.
(4) Responsibility Of Cited Party: Upon service of a violation warning, the responsible person shall comply with said warning to remedy the violation within the time specified. Upon service of an administrative citation, the responsible person shall pay the assessed fines and remedy the violation. (Ord. 2789, 10-5-2009)
(5) Content Of Violation Warning: A violation warning shall contain all of the following information:
A. The location of the violation and the date the violation was first detected. The date of service of the first violation warning, as set forth in subsection (5)E1 of this section, shall be deemed to be the date the violation was first detected, for purposes of this section. (Ord. 2958, 3-3-2014)
B. The city code section violated and a description of the violation.
C. The action required to correct the violation and the date by which such action must be completed. (Ord. 2789, 10-5-2009)
D. The consequences of failing to correct the violation, except for the first violation warning which shall not contain the consequences. (Ord. 2805, 11-2-2009)
E. The name and signature of the citing official.
1. A first violation warning shall be issued for all code violations and shall ordinarily provide ten (10) days to correct the violation. At the discretion of the citing official and based on immediate dangers to health or safety, a shorter time for correction may be set forth in the first violation warning. (Ord. 2958, 3-3-2014)
2. A second violation warning, identified as "second notice", shall be issued for all code violations in the event the first violation warning goes unheeded and the code violations remain at the end of the time frame given in the first violation warning to correct said code violations. The second violation warning shall give a minimum of ten (10) days to correct the violation. Maximum time to correct the violation shall be at the discretion of the citing official and shall be based in part on any immediate dangers to health or safety.
3. A final violation warning, identified as "final notice", shall be issued for all code violations in the event the first violation warning and the second violation warnings go unheeded and the code violations remain at the end of time frame given in the second violation warning to correct said code violations. The final violation warning shall give a minimum of five (5) days to correct the violation. Maximum time to correct the violation shall be at the discretion of the citing official and shall be based in part on any immediate dangers to health or safety. The final violation warning shall list the amount of the fine that will be imposed if there is no compliance with said final violation warning.
(6) Violation Warning Satisfied: If the citing official determines that all violations specified in the violation warning have been corrected within the time set forth in the violation warning, no further action under this section shall be taken against the responsible person regarding the violations.
(7) Failure To Comply With Violation Warning: If the responsible person fails to fully comply with the final violation warning within the time specified, the citing official may issue an administrative citation as provided in this section. The issuance of the administrative citation does not alleviate or negate the responsible person's obligation to fully comply with the violation warning. (Ord. 2789, 10-5-2009)
(8) Content Of Administrative Citation: An administrative citation shall contain all of the following information:
A. The location of the violation and the date the violation was first detected. The date of service of the first violation warning, as set forth in subsection (5)E1 of this section, shall be deemed to be the date the violation was first detected, for purposes of this section. (Ord. 2958, 3-3-2014)
B. The code section violated and a description of the violation.
C. An outline of the violation warnings issued and the time frames given within said violation warnings.
D. The amount of the fine imposed for the violation as well as the time frame within which said fine shall be paid and place of payment for said fine.
E. An order prohibiting another occurrence of the code violation.
F. A description of the administrative citation review process, including the time within which to contest the administrative citation and the place from which to obtain an administrative hearing request form to contest the administrative citation.
G. The name and signature of the citing official.
(9) Administrative Fines:
A. For any violation of this chapter the administrative fine shall be twenty-five dollars ($25.00) per day for each day's continued violation for a first violation with a maximum fine amount of three hundred dollars ($300.00); fifty dollars ($50.00) per day for each day's continued violation for a second violation with a maximum fine amount of four hundred dollars ($400.00); and one hundred dollars ($100.00) per day for each day's continued violation for a third violation for a maximum fine amount of six hundred dollars ($600.00) as well as for additional violations occurring within a twelve (12) month period. The fines imposed thereafter may be set forth in a resolution adopted by the city council.
B. Because a new and separate offense occurs under section 10-01-09 of this chapter each day during which a violation of any provision or requirement of this code is committed, continued, or permitted, the citing official shall assess fines according to the schedule set forth in subsection (9)A of this section for each day from the date for which compliance was directed in the first violation warning until the date the violation is fully corrected as determined by the citing official or until the maximum fine amount is reached, whichever comes first.
C. Administrative fines assessed for failing to fully comply with violation warning or administrative citation is a debt owed to the city.
(10) Payment Of Administrative Fine: The administrative fine shall be paid to the planning and zoning department within thirty (30) days from the date of service of the administrative citation. If, after a hearing requested pursuant to subsection (11) of this section, the hearing officer determines that the administrative citation should be canceled, the administrative fine shall be refunded.
(11) Request For Administrative Hearing:
A. Any responsible person to whom an administrative citation is issued may contest the citation by: 1) completing an administrative hearing request form and returning it to the planning and zoning department; 2) providing a complete and current mailing address for service of papers, including notices on the responsible party, by mail; and 3) depositing the administrative fine with the planning and zoning department.
B. The planning and zoning department must receive a completed administrative hearing request form and the administrative fine within thirty (30) days from the date of service of the administrative citation. If both items are not received within the required time frame, the responsible person waives the right to a hearing.
C. The citing official shall serve notice on the person requesting the hearing of the time and place of the hearing at least seven (7) days before the date of the hearing. The citing official shall serve any documentation, other than the administrative citation, that the citing official has submitted or will submit to the hearing officer on the person requesting the hearing at least five (5) days before the date of the hearing. Service shall be in accordance with subsection (2) of this section.
(12) Time For Administrative Hearing: Only after an administrative hearing request form is received by the planning and zoning department within the required period and the responsible person requesting the hearing has deposited the administrative fine in full, shall the city set the date and time for the administrative hearing. The hearing shall be set for a date not less than fifteen (15) days, but no more than sixty (60) days, after the date of filing the administrative hearing request form.
(13) Request For Continuance Of Hearing: The responsible person requesting a hearing may request one continuance, which shall be granted if deemed reasonable by the city. The city may also continue the hearing at its own discretion.
(14) Appointment Of Administrative Hearing Officer: The planning and zoning director or his/her authorized designee shall select an administrative hearing officer. The city council shall approve said selection and appoint the administrative hearing officer. Administrative hearing officers shall be selected in a manner that avoids the potential for financial, economic or other bias. In no event shall the administrative hearing officer be the citing official. The compensation, if any, of the administrative hearing officer shall be paid by the city. Compensation shall not be directly or indirectly conditioned upon whether or not administrative citations are upheld by the administrative hearing officer.
(15) Procedures At Administrative Hearing: Administrative hearings are not public hearings and are informal. Formal rules of evidence and discovery do not apply. Each party shall have the opportunity to present evidence in support of that party's case and to cross examine witnesses. The city bears the burden of proof at an administrative hearing to establish a violation of this chapter, chapters 11, 12 and/or 13 of this code. The administrative citation and any additional reports submitted by the citing official shall constitute evidence of the facts contained in those documents. The administrative hearing officer must use preponderance of evidence as the standard of review in deciding the issues.
(16) Failure To Attend Administrative Hearing: If the responsible person fails to attend the scheduled hearing, the hearing will proceed without the responsible person, and the responsible person shall be deemed to have waived the right to an administrative hearing.
(17) Decision Of Administrative Hearing Officer:
A. Issuance Of Decision: No later than fifteen (15) days after the date on which the administrative hearing concludes, the administrative hearing officer shall issue a written decision. The decision shall set forth the reasons for the decision along with notice of the right to appeal, said appeal process outlined in subsection 10-03-04(9) of this article.
B. Administrative Citation: The administrative hearing officer shall issue a written decision to uphold or cancel the administrative citation. If the administrative hearing officer upholds the administrative citation, the city shall retain the fine deposited by the responsible person. If the administrative hearing officer upholds the administrative citation and the fine has not been deposited because advance deposit has been waived by the city on the grounds of hardship or otherwise, the administrative hearing officer shall specify in the decision a payment schedule for the fine. If the administrative hearing officer cancels the administrative citation, any fine deposited with the city shall be refunded.
C. Administrative Order: With regard to the administrative hearing officer's decision, it shall be entitled "administrative order". The administrative hearing officer shall make findings within the administrative order regarding the existence of the violation(s) specified in the violation warnings and administrative citation, and regarding whether the responsible person took the required corrective action within the time period set forth in the violation warnings. If the administrative hearing officer concludes that the violation continues to exist, the administrative order shall set forth a schedule for correction. The administrative order shall set a deadline for compliance with its terms in the event that the responsible person fails to file an appeal. If the administrative hearing officer determines that the violation(s) set forth in the violation warning did not exist, or that the violation(s) was (were) timely corrected, all proceedings regarding the violation(s) shall immediately cease and the administrative citations shall be canceled. If the administrative hearing officer cancels the administrative citation, any fine deposited with the city shall be refunded.
D. Administrative Costs: The administrative hearing officer may assess against the responsible person administrative costs for any violation found to exist, or for any violation that was not timely corrected. The administrative costs include any and all costs incurred by the city in connection with administrative hearings pertaining to the violation, including, but not limited to, investigation costs, staffing costs for preparing and conducting the administrative hearing, and costs for all inspections necessary to enforce the violation warning, administrative citation and the administrative order. The administrative order shall specify the date by which the costs must be paid to the city.
(18) Administrative Hearing Application Fee: The city council shall by resolution establish an application fee to be paid by the person seeking an administrative appeal hearing.
(19) Late Payment Charges: Any person who fails to pay to the city on or before the due date any administrative fine imposed pursuant to the provisions of this section shall be liable for the payment of late payment charges in the amount of fifty percent (50%) of the administrative fine payable to the city over and above the original fine. (Ord. 2789, 10-5-2009)
(20) Failure To Comply With Administrative Order: Failure to comply with an administrative order after it becomes final is a misdemeanor. Filing a criminal misdemeanor action does not preclude the city from using any other legal remedy available to gain compliance with the administrative order. (Ord. 2889, 12-5-2011)