In addition to the remedies set out below, violations of the provisions of this section may be subject to other appropriate legal or equitable actions to restrain, correct, or abate the violations. These remedies are intended to be cumulative and not exclusive. The following violations are infractions punishable by a penalty in accordance with this section. Any violation of this section may be prosecuted as a Class A infraction under the procedures of O.R.S. Chapter 153 and Canby Municipal Code § 1.08.010. The City Administrator or designee is authorized to issue a citation or written notice of violation to any person violating the provisions herein. In addition:
A. Any sidewalk café operating without a valid permit for the year shall be notified by the city that it is in violation of this section, and will be allowed up to 10 business days to file an application. If no application is filed within 10 days, the operator of the café shall be notified and a civil penalty of $500 per day shall be levied.
B. Any sidewalk café operating with a valid license, but found by the city to have a substantiated instance of failing to be in compliance with the other provision of this section of the Canby Municipal Code shall be given up to 2 written notices per year, warning that it is operating out of compliance and in violation of this section. On the third investigated and substantiated instance of non-compliance, notice of the non-compliance may be delivered and penalties may be levied as follows:
1. first levy (third substantiated violation) $500;
2. second levy (fourth substantiated violation) $1,000;
3. third levy (fifth substantiated violation) $1,500.
4. Penalties shall continue to accrue in $500 increments for each additional substantiated violation.
C. In accordance with § 12.13.100, the City Administrator or designee may deny, revoke, or suspend the permit upon finding more than 3 separate instances of substantiated violations that result in fines.
D. Levies of civil penalties and revocations of permits may be appealed to the municipal court judge within 10 days of date written notice of the levy of penalty or revocation is deposited in the United States Mail with first class postage addressed to the café or delivered to an employee of the café or posted at the café. If no appeal is filed within 10 days of the notice, the levy of penalty shall be final and failure to pay the levy shall be a separate violation of this section.
E. Any appeal must be in writing, signed by the owner or operator of the café, and must state the grounds for the appeal. The appeal must be accompanied by a deposit in the amount of the levy and an appeal fee of $50. The appeal must be filed with the municipal court. The appeal must be served upon the City Attorney. Failure to comply with any of these requirements within 10 days of the date of notice shall result in a dismissal of the appeal, a forfeiture of the appeal fee, and entry of judgment in the amount of the levy by the municipal court in its register.
F. Rules of conduct for hearing and final order. The Municipal Judge shall develop any rules, procedures or regulations that may be necessary for the proper conduct of the appeal. The only issue to be decided by the Municipal Judge is a determination of whether or not the café was in violation of CMC § 12.13.120(1) or (2) as alleged in the notice of penalty. If the Municipal Judge finds that it is more likely than not that the café was in violation as specified in the notice of penalty, the Municipal Judge shall issue an order affirming the levy of penalty and enter a judgment for the amount of the levy of penalty into the register of the Municipal Court. The order and judgment shall contain a provision for court costs to be paid by the violator in the amount of $250. If the Judge finds that it is more likely than not that the café was in compliance and not in violation as specified in the notice of penalty, the Judge shall void the notice of penalty. The Judge's order is final and is not subject to appeal. It shall not be a defense that the café owner or operator did not receive notice of the penalty if mailed to the address of the café or delivered to an employee of the café. It shall not be a defense that the café owner or operator was not aware of the permit requirements.
G. Failure to pay levy penalty. Unless the full amount of the levy of penalty is paid within 10 days after notice of penalty or the order becomes final by operation of law, or after appeal, each day that the penalty is not paid shall constitute a further violation.
(Ord. 1316, passed 8-19-2009)