A. Purpose: The city council finds that there is a need for alternative methods of enforcing this code. 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 city code violations.
B. General Provisions:
1. A violation of the provisions of titles 3, 9 or 10 of this code, in addition to being a possible criminal violation, is an administrative offense that may be subject to an administrative citation and civil penalties. Each day a violation exists constitutes a separate offense. The city may elect to pursue either the administrative offense or the applicable criminal offense, but not both for the same offense.
2. An administrative offense may be subject to a civil penalty not exceeding two thousand dollars ($2,000.00).
3. The city council must adopt by resolution a schedule of fines for offenses initiated by administrative citation. The city council may adopt a schedule of fees to be paid to administrative hearing officers.
4. The city manager must adopt procedures for administering the administrative citation program.
C. Administrative Citation:
1. A person authorized to enforce provisions of titles 3, 9 or 10 of this code may issue an administrative citation upon belief that a code violation has occurred. The citation must be issued in person or by mail to the person responsible for the violation or attached to the motor vehicle in the case of a vehicular offense. The citation must state the date, time, and nature of the offense, the name of the issuing officer, the amount of the scheduled fine, and the manner for paying the fine or appealing the citation.
2. The person responsible for the violation must either pay the scheduled fine or request a hearing within seven (7) days after issuance. Payment of the fine constitutes admission of the violation. A late payment fee of ten percent (10%) of the scheduled fine amount may be imposed under subsection F of this section.
D. Administrative Hearing:
1. The city council will periodically approve a list of lawyers from which the city manager will randomly select a hearing officer to hear and determine a matter for which a hearing is requested. The accused will have the right to request no later than five (5) days before the date of the hearing that the assigned hearing officer be removed from the case. One request for each case will be granted automatically by the city manager. A subsequent request must be directed to the assigned hearing officer who will decide whether he or she cannot fairly and objectively review the case. The city enforcement officer may remove a hearing officer only by requesting that the assigned hearing officer find that he or she cannot fairly and objectively review the case. If such a finding is made, the officer shall remove himself or herself from the case, and the city manager will assign another hearing officer. The hearing officer is not a judicial officer but is a public officer as defined by Minnesota statutes section 609.415. The hearing officer must not be a city employee. The city manager must establish a procedure for evaluating the competency of the hearing officers, including comments from accused violators and city staff. These reports must be provided to the city council.
2. Upon the hearing officer's own initiative or upon written request of an interested party demonstrating the need, the 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 is responsible for serving the subpoena in the manner provided for civil actions and for paying the fees and expenses of a witness. A person served with a subpoena may file an objection with the hearing officer promptly but no later than the time specified in the subpoena for compliance. The officer may cancel or modify the subpoena if it is unreasonable or oppressive. A person who, without just cause, fails or refuses to attend and testify or to produce the required documents in obedience to a subpoena is guilty of a misdemeanor. Alternatively, the party requesting the subpoena may seek an order from district court directing compliance.
3. Notice of the hearing must be served in person or by mail on the person responsible for the violation at least ten (10) days in advance, unless a shorter time is accepted by all parties. 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 must tape record the hearing and receive testimony and exhibits. The 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.
4. The hearing officer has the authority to determine that a violation occurred, to dismiss a citation, to impose the scheduled fine, and to reduce, stay, or waive a scheduled fine either unconditionally or upon compliance with appropriate conditions. When imposing a penalty for a violation, the hearing officer may consider any or all of the following factors:
a. The duration of the violation;
b. The frequency or reoccurrence of the violation;
c. The seriousness of the violation;
d. The history of the violation;
e. The violators conduct after issuance of the notice of hearing;
f. The good faith effort by the violator to comply;
g. The economic impact of the penalty on the violator;
h. The impact of the violation upon the community; and
i. Any other factors appropriate to a just result.
The hearing officer may exercise discretion to impose a fine for more than one day of 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 that 2) the accused intentionally and unreasonably refused to comply with the code requirement. The hearing officer's decision and supporting reasons must be in writing.
5. 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 or incapacitating illness of the accused; a court order requiring the accused 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 and intentional delay.
E. Judicial Review: An aggrieved party may obtain judicial review of the decision of the hearing officer by filing a written appeal setting forth the party's grounds for the appeal to the Clay County district court within thirty (30) days of the date of the order of the hearing officer. The clerk of district court will notify the city of any such appeal, and the city shall file with the court all exhibits and the tape of the hearing before the hearing officer. The court will review such record, and either uphold, reverse, or modify the order of the hearing officer, or, if the court feels the record is insufficient, or desires to hear arguments on the appeal, may schedule a new evidentiary hearing on the matter, or arguments on the record, or both. The court, unless it schedules an evidentiary hearing, will uphold the order of the hearing officer, unless the court determines that the order was clearly erroneous, or the administrative penalty imposed clearly excessive.
F. Recovery Of Civil Penalties:
1. 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. A lien may be assessed against the property and collected in the same manner as taxes.
3. A personal obligation may be collected by appropriate legal means.
4. A late payment fee of ten percent (10%) of the fine may be assessed for each thirty (30) day period, or part thereof, that the fine remains unpaid after the due date.
5. Failure to pay a fine is grounds for suspending or revoking a license related to the violation.
6. The city may request the district court, after a hearing, to hold the violator in contempt of court for not paying the fine, and the court may impose any such penalties that the court could impose for not paying a fine for a criminal sentence imposed by the district court.
G. Double Jeopardy: 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 provision based on a different set of facts. (Ord. 2004-18, 6-21-2004)