(a) Authority for the Administrative Hearing Process. The City Attorney shall create an administrative hearing and appeals process that is consistent with this Article and with due process principles. The City Attorney shall develop, and submit to the City Council for approval prior to the start of the Program, written policies and procedures for the hearing and appeals process and written policies and procedures for the selection and appointment of one or more independent Administrative Hearing Officers to hear and decide administrative citation appeals. The administrative hearing shall be conducted in accordance with the procedures promulgated by the City Attorney.
(b) Powers of the Administrative Hearing Officers. The written policies and procedures developed by the City Attorney pursuant to Subsection (a) of this Section shall set forth the scope of the powers of the Administrative Hearing Officer in accordance with this Section. These enumerated powers include, but are not limited to:
1. The Administrative Hearing Officer shall determine whether the Administrative Violation specified in the Administrative Citation occurred;
2. The Administrative Hearing Officer shall determine whether the assessed Administrative Fine is in accordance with the Administrative Fine schedules provided in Section 11.2.04;
3. The Administrative Hearing Officer shall consider any aggravating or mitigating factors that warrant deviation from the Administrative Fine schedules, provided in Section 11.2.04, so that a greater or lesser Administrative Fine should be imposed. The factors that the Administrative Hearing Officer shall consider, include, but are not limited to:
A. the seriousness of the Administrative Violation;
B. the duration of the Administrative Violation;
C. efforts, if any, to correct the Administrative Violation;
D. the negative impacts of the Administrative Violation on the community;
E. any instances in which the Responsible Person has been responsible for the same or similar Administrative Violations in the past; and
F. any other factors that justice may require.
4. The Administrative Hearing Officer shall assess all Administrative Costs associated with the appeal of the Administrative Citation;
5. The Administrative Hearing Officer shall assess all Enforcement Costs;
6. The Administrative Hearing Officer has the authority to require a Responsible Person to deposit an amount equal to any assessed Administrative Costs or Enforcement Costs in accordance with the policies and procedures established pursuant to the City Attorney.
(c) Time for Administrative Hearing.
1. The City Attorney shall develop policies and procedures that ensure adequate notice and a timely administrative hearing. The Responsible Person shall be notified in writing of the date and time of the hearing by mailing the notice to the address provided by the Responsible Person in the Request for Administrative Hearing.
2. The Responsible Person(s) or Issuing Department may request one continuance pursuant to the procedures established by the City Attorney.
3. The Administrative Hearing Officer may, in the Administrative Hearing Officer’s discretion, grant or deny a continuance of the hearing date upon a request by the Responsible Party or the Issuing department and a showing of good cause.
(d) Failure to Attend Administrative Hearing.
1. If the Responsible Person or the Responsible Person’s representative fails to attend the scheduled hearing, the Responsible Person shall be deemed to have waived their right to an administrative hearing. Under these circumstances, the Administrative Hearing Officer shall find the Responsible Person in default, and shall issue a written notice to that effect. A default under this Section shall constitute a forfeiture of the Administrative Fine and a waiver of any right to challenge the assessed Enforcement Costs and Administrative Costs. A default under this Section shall also be a bar to judicial review of the hearing officer decision based upon failure to exhaust administrative remedies. A default under this provision may be set aside by the Administrative Hearing Officer at the request of the Responsible Party upon a showing of good cause for failing to appear at the Administrative Hearing.
2. A Responsible Person who has been issued an Administrative Citation and who has requested an administrative hearing to challenge the citation as provided in this Article may request in writing that the Responsible Person’s challenge to the citation be withdrawn and the hearing cancelled. Upon receipt of a request to withdraw a challenge to the Administrative Citation, the City shall cancel the pending hearing, and issue a written notice to that effect. A withdrawal under this Subdivision shall constitute a forfeiture of the Administrative Fine and a waiver of any right to challenge the assessed Enforcement Costs and Administrative Costs. A withdrawal under this Subdivision shall also be a bar to judicial review of the hearing officer decision based upon failure to exhaust administrative remedies.
3. If a financial hardship waiver was granted pursuant to Subdivision 2. of Subsection (a) of Section 11.2.08, and the Responsible Person is in default as provided in Subdivision 1. of this Subsection, or a challenge to the citation is withdrawn pursuant to Subdivision 2. of this Subsection, the Administrative Fine, Enforcement Costs, and Administrative Costs shall be due and payable by the Responsible Person(s) to the City within twenty (20) calendar days following the date that had been set for the administrative hearing.
4. The City may dismiss an Administrative Citation at any time if it is determined to have been issued in error.
(e) Procedures at the Administrative Hearing.
1. Administrative hearings are informal in nature, and formal rules of evidence and discovery do not apply. The proceedings shall be audio-recorded by the City.
2. The City bears the burden of proof at an administrative hearing to establish the existence of the Administrative Violation specified on the citation. The Administrative Hearing Officer shall use preponderance of the evidence as the standard of proof in deciding the issues.
3. The Administrative Citation and any additional documents submitted by the Issuing Department shall be accepted by the Administrative Hearing Officer as prima facie evidence of the respective facts contained in those documents. The Enforcement Officer may attend the hearing but is not required to do so.
4. Each party shall have the opportunity to testify, cross-examine witnesses, and present witnesses and evidence in support of the party’s case. Written and oral evidence submitted at the hearing shall be submitted under penalty of perjury. Documentary and other tangible evidence must be authenticated to the satisfaction of the Administrative Hearing Officer. Nothing shall preclude the use of telephonic or other electronic means of communication if deemed appropriate by the Administrative Hearing Officer.
(f) Decision of the Administrative Hearing Officer. After considering all of the testimony and evidence submitted at the hearing, the Administrative Hearing Officer shall, within fifteen (15) days thereafter, render a decision in writing. The decision rendered by the Administrative Hearing Officer is not exclusive and does not preclude or foreclose the City Attorney’s Office from pursuing any and all other remedies provided by law. The Administrative Hearing Officer shall render a decision as follows:
1. Determine that the Administrative Violation specified in the citation is founded, and impose an Administrative Fine in the amount set forth in the citation and if the Administrative Violation has not been corrected as of the date of the hearing, order correction of the Administrative Violation; or
2. Determine that the Administrative Violation specified in the citation is founded, but that the Administrative Fine was incorrectly assessed with the Administrative Fine schedules as provided for in Section 11.2.04, warranting imposition of a lesser or greater Administrative Fine than that prescribed in the citation and impose a lesser or greater Administrative Fine and, if the Administrative Violation has not been corrected as of the date of the hearing, order that the Administrative Violation be corrected; or
3. Determine that the Administrative Violation specified in the citation is founded, but that the Issuing Department or the Responsible Party has introduced credible evidence of aggravating or mitigating circumstances warranting imposition of a greater or lesser penalty than that prescribed in the Administrative Fine schedules, as provided for in Section 11.2.04, and impose a greater or lesser Administrative Fine, and if the Administrative Violation has not been corrected as of the date of the hearing, order that the Administrative Violation be corrected; or
4. Determine that the Administrative Violation specified in the citation did not occur and cancel the Administrative Fine; and
5. Determine the amount of the Enforcement Costs and associated Administrative Costs to be imposed, if any.
(g) The Administrative Order shall include the reasons for the decision and be served on all parties by any one of the methods listed in Section 11.2.05 of this Article or through service by first-class mail, postage prepaid on the Responsible Person(s) at the address the Responsible Persons(s) provided in the Request for Administrative Hearing. In addition to the matters set forth in Subsection (f) of this Section, the decision rendered by the Administrative Hearing Officer shall address the following:
1. Administrative Fines.
A. If the Administrative Hearing Officer imposes an Administrative Fine, the City shall keep the funds deposited at the time of the hearing request. If the deposited funds are less than the Administrative Fine, the Responsible Person(s) shall pay the outstanding amount of the Administrative Fine to the City within twenty (20) calendar days of the Administrative Order becoming final. If the deposited funds equal more than the Administrative Fine, the City shall promptly refund the appropriate amount of the funds to the Responsible Person(s).
B. If the Administrative Hearing Officer determines that the Administrative Violation specified in the citation did not occur and cancels the Administrative Fine, then the City shall promptly refund the amount of funds deposited by the Responsible Person at the time of the hearing request and no Enforcement Costs or Administrative Costs shall be assessed.
2. Enforcement Costs and Administrative Costs.
A. Enforcement Costs. The Administrative Order shall assess all reasonable Enforcement Costs to be paid by the Responsible Person. The Responsible Person(s) shall pay the Enforcement Costs to the City within twenty (20) calendar days of the Administrative Order becoming final.
B. Administrative Costs. The Administrative Order shall assess all reasonable Administrative Costs to be paid by the Responsible Person. The Responsible Person(s) shall pay the Administrative Costs to the City within twenty (20) calendar days of the Administrative Order becoming final.
3. The Administrative Order shall become final on the date of mailing or other service, and shall notify the Responsible Person(s) of their right to appeal.