(A) General.
(1) Purpose. The City Council finds that there is a need for alternative methods of enforcing this chapter. While criminal fines and penalties have been the most frequent enforcement mechanism, there are certain negative consequences for both the city and the accused. The delay inherent in that system does not ensure prompt resolution. Citizens resent being labeled as criminals for violations of administrative regulations. The higher burden of proof and the potential of incarceration do not appear appropriate for most administrative violations. The criminal process does not always regard city code violations as being important. Accordingly, the City Council finds that the use of administrative citations and the imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This method of enforcement is in addition to any other legal remedy that may be pursued for zoning violations.
(2) General provisions.
(a) Administrative offense. A violation of any provision of this chapter is an administrative offense that may be subject to an administrative citation and civil penalties. Each day a violation exists constitutes a separate offense.
(b) Civil penalty. An administrative offense may be subject to a civil penalty.
(c) Schedule of fines and fees. The City Council shall adopt a Fee Schedule Ordinance which is on file in the city offices for offenses initiated by administrative citation. The City Council is not bound by that schedule when a matter is appealed to it for administrative review under division (E) below. The City Council may adopt a schedule of fees to be paid to administrative Hearing Officers.
(B) Administrative citation procedures.
(1) Administrative notice.
(a) Upon the first violation, the City Planning and Zoning Administrator (“Administrator”) may issue an administrative notice to the violator. The Administrator will deliver the administrative notice to the violator in person or by certified mail at the person’s last known address. The violator will have 20 calendar days to correct the violation after issuance of the administrative notice.
(b) If the violator is making a good faith attempt to remedy the violation, the Administrator may grant an extension, the length of which must be agreed upon in writing between the Administrator and the violator.
(c) The city is not required to give such notice and the city, in its sole discretion, may determine that the violation needs no notice since it is presumed that the public is clearly on notice that the conduct is in violation of this code. In such cases, the city shall immediately issue the administrative citation as set forth in division (B)(2) below.
(2) Administrative citation. If the violator fails to correct the violation within the time period provided in the administrative notice, the Administrator may issue an administrative citation. The Administrator must issue the citation to the violator in person or by certified and regular mail. The citation must state the date and nature of the offense, the name of the issuing officer, the manner for remedying the violation or appealing the citation.
(3) Resolution. The violator must either remedy the violation or meet with the Administrator to agree in writing upon a plan of action to remedy the violation or request a hearing within 20 days after issuance of the citation. Penalties for failure to correct the violation may be imposed as set forth in division (F)(4) below. The Administrator may issue a second citation or take other legal action to achieve compliance with the ordinances.
(C) Administrative hearing.
(1) Hearing Officers. The City Council will periodically approve a list of qualified individuals, from which the City Clerk/Treasurer will randomly select a Hearing Officer to hear and determine a matter for which a hearing is requested. The Hearing Officer will be a public officer as defined by M.S. § 609.415, as it may be amended from time to time.
(2) Removal of Hearing Officer. No later than ten days before the date of the hearing, the violator may make a written request that the assigned Hearing Officer be removed from the case. The City Clerk/Treasurer will automatically grant one request for removal. A subsequent request must be directed to the assigned Hearing Officer, who will decide whether they can fairly and objectively review the case. If the Hearing Officer determines they cannot fairly and objectively review the case, the Hearing Officer shall notify the City Clerk/Treasurer in writing at least one day before the scheduled hearing date. The City Clerk/Treasurer will then assign another Hearing Officer.
(3) Notice of hearing. Within 30 days of the request for a hearing, the City Clerk/Treasurer will schedule the hearing and will notify the violator and involved city staff of the date, time and place for the hearing. Parties are expected to be available for two hours. Notice of the hearing must be mailed to the violator and the Hearing Officer at least 20 days in advance of the scheduled hearing, unless a shorter time is accepted by all parties. The notice must contain the names of the parties, the identity of the Hearing Officer, the type and location of the alleged violation and the steps necessary to remedy the violation.
(4) Continuance. A request for a continuance must be made to the City Clerk/Treasurer at least five days prior to the scheduled hearing date. The City Clerk/Treasurer may grant a continuance at the request of the violator or the city staff member only for good cause shown and for no more than ten days from the originally assigned date.
(5) File transmittal.
(a) Upon receipt of any request for a hearing, the Administrator’s office will compile a summary report detailing the facts in support of any determination that the offense constitutes a violation. The summary report will include:
1. Copy of the citation issued;
2. Copy of the administrative notice, which preceded the citation;
3. Copy of any case history in the issuing employee’s department;
4. Photographs and/or videotape of property where available; and
5. Proof of mailing and/or posting of notice on the property if the citation was not personally served on the violator.
(b) The file must be ready for the Hearing Officer to pick up at least three business days preceding the scheduled hearing.
(6) Presentation of case. At the hearing, the parties will have the opportunity to present testimony and question any witnesses, but strict rules of evidence will not apply. The Hearing Officer may tape record the hearing and receive testimony and exhibits. The Hearing Officer must receive and give weight to evidence, including hearsay evidence, that possesses probative value commonly accepted by reasonable and prudent people in the conduct of their affairs.
(7) Decision.
(a) The Hearing Officer must issue a written decision containing findings of fact, conclusions of law and an order. The decision will be mailed to the parties within ten days after the hearing. The Hearing Officer has the authority to determine that a violation occurred, to dismiss a citation, to impose a monetary penalty, and to reduce, stay or waive a monetary penalty either unconditionally or upon compliance with appropriate conditions to remedy the violation. When imposing a penalty for a violation, the Hearing Officer may consider any or all of the following factors:
1. Duration of the violation;
2. Frequency of reoccurrence of the violation;
3. Seriousness of the violation;
4. History of the violation;
5. Violator’s conduct after issuance of the administrative notice and citation;
6. Violator’s conduct after issuance of the notice of hearing;
7. Good faith effort by the violator to comply;
8. Impact of the violation upon the community;
9. Prior record of city code violations; and
10. Any other factors appropriate to a just result.
(b) The Hearing Officer may not impose a fine greater than the established fine, except that the Hearing Officer may impose a fine for each week that the violation continues if:
1. The violation caused or is causing a serious threat of harm to the public health, safety or welfare; or
2. The violator intentionally and unreasonably refused or refuses to comply with the code requirement.
(8) Decision. Except as provided in divisions (D) and (E) below, the decision of the Hearing Officer is final. The decision of the Hearing Officer shall be mailed to the violator by certified mail.
(9) Failure to appear. The failure to attend the hearing constitutes a waiver of the violator’s rights to an administrative hearing and an admission of the violation. A Hearing Officer may waive this result upon good cause shown. Examples of “good cause” are: death in the immediate family or documented incapacitating illness of the violator; a court order requiring the violator to appear for another hearing at the same time; and lack of proper service of the citation or notice of the hearing. “Good cause” does not include: forgetfulness; lack of transportation or childcare; and intentional delay.
(D) Administrative review.
(1) Appeal. A violator may appeal the Hearing Officer’s decision by filing a notice of appeal within 20 days after the date the Hearing Officer’s decision was mailed to the violator.
(2) Notice. The appeal under this section will be heard by the City Council. Notice of the hearing must be delivered to the alleged violator or property owner and involved city staff, in person or by mail at least ten days in advance of the hearing. The parties to the hearing will have an opportunity to present oral or written arguments regarding the Hearing Officer’s decision.
(3) Decisions. The City Council must consider the record, the Hearing Officer’s decision, and any additional arguments before making a determination. The Council is not bound by the Hearing Officer’s decision, but may adopt all or part of the officer’s decision. The Council’s decision must be in writing.
(4) Suspension or revocation. In addition to imposing a civil penalty, the Council may suspend or revoke a city issued license, permit or other approvals associated with the violation.
(E) Judicial review.
(1) Decision review. An aggrieved party may obtain judicial review of the decision of the City Council by filing a notice of appeal with the county’s District Court and serving the same on the city in the manner required by the state’s Rules of Civil Procedure for service of process upon the city within 20 days of the mailing of the City Council’s decision to the violator.
(2) Option to withdraw. These procedures are intended to be voluntary on the part of those who have been charged with administrative offenses. The individual may withdraw from participation in this administrative process by submitting a written request for withdrawal to the City Clerk/Treasurer within seven days of the issuance of the administrative citation. Upon receiving this written request, the city may bring criminal or other civil charges according to this chapter and state law. Likewise, nothing in this section shall prohibit the city, in its discretion, from initiating criminal charges or any other remedy in lieu of the administrative procedures herein set forth.
(F) Recovery of civil penalties.
(1) Non-payment. If a civil penalty is not paid within the time specified, it will constitute:
(a) A lien on the real property upon which the violation occurred if the property or improvements on the property was the subject of the violation and the property owner was found responsible for that violation; or
(b) A personal obligation of the violator in all other situations.
(2) Lien. A lien may be assessed against the property and collected in the same manner as taxes.
(3) Personal obligation. A personal obligation may be collected by appropriate legal means.
(4) Late fees/charges.
(a) If after seven days the fine has not been paid or a hearing requested, the fine will increase by 10% for each seven days thereafter for one month. After four weeks and four late fee charges have been added to the original fine, the total bill will be assessed to the property taxes and all city licenses will be revoked. For continued violations, the city will correct the violation and assess the charges for doing so onto the property taxes or criminal charges may be filed.
(b) If the same property and property owner are charged with a subsequent violation within a 12-month period for the same, or substantially similar offense, the fine will be increased by 25%. After a third infraction in a 12-month period, the fine will increase by 50% and after a fourth infraction by 100%.
(5) License revocation or suspension. Failure to pay a fine is grounds for suspending or revoking a license related to the violation.
(G) Criminal penalties.
(1) The following are misdemeanors, punishable in accordance with state law:
(a) Failure, without good cause, to pay a fine, agree to a plan for resolution proposed by the city or request a hearing within 30 days after issuance of an administrative citation;
(b) Failure, without good cause, to appear at a hearing that was scheduled under division (C) above; and
(c) Failure to pay a fine imposed by a Hearing Officer within 30 days after it was imposed, or such other time as may be established by the Hearing Officer.
(2) If the final adjudication in the administrative penalty procedure is a finding of no violation, then the city may not prosecute a criminal violation in District Court based on the same set of facts. This does not preclude the city from pursuing a criminal conviction for a violation of the same provisions based on a different set of facts. A different date of violation will constitute a different set of facts.
(Ord. 906.12.4, passed 7-14-2009)