(A) Civil offense. A CIVIL OFFENSE means an offense against the city set forth in this code of ordinances made subject to a civil fine by this chapter. Charging a person with a civil offense is an alternative to criminal prosecution. A person may not be charged with a civil offense if that person has also been charged with a misdemeanor for the same offense. A person charged with a civil offense may not be arrested for the commission of the offense.
(B) Classification of civil offenses.
(1) A person who violates a standard of conduct set forth in a section or chapter of this code of ordinances listed below is liable for the civil fine specified in § 10.99 for a civil offense:
(e) Section 91.06(A), “Used building materials, unlicensed motor vehicles, scrap metal, refuse or rubbish”;
(2) If a person has previously been found to have violated the same provision of this code of ordinances within one year, that person may be charged as a second offender and on being found to have committed a second or subsequent offense is liable for the civil fine specified in § 10.99 for the second and subsequent violation.
(C) Notice of civil offense and civil fine; procedures.
(1) The City Manager, or his or her designee charged with enforcement of this code of ordinances, may issue a notice of civil offense and civil fine to a person found to have committed a civil offense.
(2) A notice of civil offense and civil fine must advise the person served:
(a) Unless a written answer is filed or the civil fine paid within ten days from the date of the notice, the fine will double; and
(b) That a hearing will be held if requested.
(3) A notice of civil offense and civil fine:
(a) Must state the date that the notice is issued;
(b) Must identify the person being charged if known to the issuing officer or employee;
(c) Indicate the offense charged, the civil fine for the offense, and the date, time and location of the offense charged;
(d) Be signed and attested to by the issuing officer or employee; and
(f) If the person charged is present, the issuing officer or employee may personally serve the person charged with a copy of the notice.
(4) The issuing officer or employee must serve the notice of civil offense and civil fine in one of the following manners:
(a) The notice may be served personally on the person responsible for the offense;
(b) If the notice involves an offense which occurred on or immediately adjacent to the real property owned, occupied or controlled by the person being charged, the notice may be constructively served by posting a copy of the notice in a conspicuous location on the real property and by mailing a copy of the notice to the person by first class U.S. mail; or
(c) The original of a notice of civil offense and civil fine issued pursuant to this section or a true copy of it is a record kept in the ordinary course of business of the city and is prima facie evidence of the facts it contains.
(D) Answer to notice of civil offense.
(1) A person served with a notice charging a civil offense may file a written answer to the charge. The answer may be delivered in person or mailed to the city. An answer must be filed within ten days from the date of the notice. The answer may:
(a) Admit that the person committed the offense by payment of the civil fine specified in the notice;
(b) Admit that the person committed the offense and, for those offenses that provide for a reduction in civil fine on proof of correction, offer proof that the person has corrected the offense;
(c) Deny that the person committed the offense and request a hearing. If the person desires the presence at the hearing of the enforcement officer, inspector or other authorized individual who issued the notice, the person must request same in his or her answer; or
(d) If the person served has taken an administrative appeal authorized by this code of ordinances from an order on which the offense was based, the person may request that the time for answering the notice of civil offense be continued until the appeal has been finally resolved.
(2) A person who admits the commission of the offense for which a notice was issued must pay the civil fine arising out of the offense to the City Auditor.
(3) A person who admits the commission of the offense with an offer of proof of correction, may offer proof that the person has corrected the offense.
(E) Hearings.
(1) A person who denies the commission of a civil offense may request a hearing before a Hearing Examiner. The Hearing Examiner shall be the City Manager or his or her designee. The request shall be filed with the Office of Administrative Hearings, which shall set a date for the hearing and notify the person, in writing, of the date, time and location of the hearing. The hearing may be informal, but all testimony shall be under oath.
(2) All hearings shall be scheduled within ten days and will be held within 30 days from the date the request for a hearing is filed. Any hearing date may be modified if such modification is agreed to by the person charged, by the city officer or employee who issued the charge and by the Hearing Examiner, or if such modification is necessary in the interest of justice.
(3) The Hearing Examiner shall enter into the record of the proceedings the notice of the civil offense and civil fine, the filing of or failure to file an answer, the substance of the answer, a finding of liability, the civil fine due, payments, delinquency and collection charges and other relevant information.
(4) The Hearing Examiner shall issue a decision and make findings of fact from the record and conclusions of law in support of the decision within ten days from close of the hearing. The findings and conclusions shall demonstrate that the decision is consistent with applicable laws, ordinances, regulations and the interest of justice. Any unpaid civil fine is due and must be paid within ten days after the date of the Hearing Examiner’s decision.
(5) If the person has taken an administrative appeal authorized by this code of ordinances from an order on which the offense was based, the Hearing Examiner must extend the time for answering the notice of civil offense until the appeal has been finally resolved.
(F) (1) A person charged with a violation of the this code of ordinances and served with a notice of civil offense and civil fine specified as subject to reduction for correction of the violation may offer proof of the correction to the Hearing Examiner. The offer or proof of correction may be submitted in person or, to avoid the necessity of personal appearance, may be submitted as affidavits and other document evidence, by mail. The Hearing Examiner who receives an answer with an offer of proof of correction shall verify whether the violation has been corrected by inquiry to the city department which issued the notice.
(2) For those offenses that provide for a reduction in civil fine on proof of correction, on being satisfied that the offense has been corrected, the Hearing Examiner shall reduce the otherwise applicable civil fine by up to 90%. If the civil fine is eliminated or reduced and the person previously paid the civil fine, the amount paid in excess of the revised civil fine shall be returned to the person. If the civil fine is reduced and the person has not previously paid the civil fine, the person must pay only the amount of the civil fine as reduced. An unpaid civil fine is due and must be paid within ten days after the determination of the examiner.
(G) Default. A person who is personally or constructively served with notice of a civil offense and civil fine and fails to answer within the time provided by division (D) above, or fails to attend a requested hearing, the person is in default, and the civil fine deemed delinquent. The amount due is as specified by § 10.99.
(H) Request to set aside default and delinquency charges. A person subject to a civil fine entered after default may request to have the default set aside. A Hearing Examiner may set aside a default on a showing that the person had no actual knowledge of the notice of civil offense and civil fine or that the default should be excused in the interest of justice.
(I) Administrative review. A person found to have committed a civil offense and to owe a civil fine may request the City Mayor’s Court to review the record of the proceedings before the Hearing Examiner. The director of a city department that issued a notice of civil offense and civil fine dismissed by the Hearing Examiner may also request the Nelsonville Mayor’s Court to review the record of the proceedings before the Hearing Examiner. The request for review must be in writing, specify with particularity the claimed errors in the decision by the Hearing Examiner, filed with the Civil Division of the Mayor’s Court, pay any applicable filing fee as set forth by the Mayor’s Court and sent to the office of administrative hearings by certified mail within ten days of the date of the mailing of the decision by the Hearing Examiner. The city officer or employee who issued the notice of violation which gave rise to the request for review or a supervisor to the issuing officer may file a written response to the request for review. The response must be filed within 15 days of the receipt of the request for review by the officer of administrative hearings. The Mayor’s Court may set aside the decision of the hearing on finding from review of the proceedings before the Hearing Examiner that the findings of fact and conclusions of law are not supported by the record. The Mayor’s Court may reduce a civil fine on a showing that the civil fine would cause an undue hardship and that the underlying infraction has been cured or is unlikely to reoccur. The Mayor’s Court may investigate a claim that an infraction has been cured, make findings with respect to the claim of cure, and include those findings within the record. The decision of the Mayor’s Court may be appealed to the County Municipal Court in the same manner in form as any civil action filed with the Municipal Court.
(J) Civil proceedings. Whenever an officer charged with the enforcement of this code of ordinances is satisfied that a provision that officer is charged to enforce, or a law in force in the city applicable to the same subject matter, has been violated or is about to be violated, or that an order or direction made in pursuance of the enforcement of this chapter has not been complied with, or is being disregarded, and whenever that officer is satisfied that civil proceedings are necessary for the enforcement of this code of ordinances or laws, to restrain violations thereof, that officer may apply to the City Attorney, who is authorized to institute civil proceedings. Civil proceedings may be brought in the name of the city, and may include, among other things, claims for injunction, mandatory relief, restraining orders, damages, the appointment of a receiver and such other relief as may be allowed in law or equity. Institution of civil proceedings does not exclude criminal proceedings as authorized by the City Code or charging a person with a civil offense as authorized by this chapter.
(K) Administrative regulations. The Municipal Administrator may adopt administrative regulations for the conduct of hearings and for the enforcement of this code of ordinances through the issuance of notices of civil offenses.
(L) Freedom from improper influence.
(1) No member of the City Council, member of the city administration, party to any proceedings before a Hearing Examiner, or any other person shall interfere with, attempt to interfere with, or improperly influence or attempt to improperly influence a Hearing Examiner in the performance of the duties of office.
(2) An examiner may not conduct or participate in any hearing or decision in which the examiner or any of the following persons has a direct or substantial financial interest: a spouse; brother; sister; child; parent; or in-law of the examiner; or business firm or organization in which the examiner has a substantial interest. The examiner shall promptly report to the City Manager any attempt at interference or improper influence or any actual or potential conflict prior to such hearing.
(3) Wherever it may be shown to the satisfaction of the City Manager that an examiner was subjected to improper influence, interference or interest, such improper influence, interference or interest shall be grounds for vacating any decision made by the examiner in such proceedings.
(M) Ex parte communications prohibited. A person may not communicate with a Hearing Examiner to influence a decision in a matter pending before an examiner other than at a public hearing or in a writing that is made part of the record of the proceeding. This provision shall not prohibit communication between an examiner and any member of the administration assigned to assist or give legal counsel to the examiner in the pending proceeding.
(N) Savings. This chapter does not affect any act done or committed in violation of any former ordinance relating to the same subject, or any suit or proceeding now pending in court for the violation of the provisions of any former ordinance, or any cause or causes of action accrued or existing under such ordinance, but all proceedings or prosecutions now pending shall be conducted to final determination irrespective of this chapter.
(Prior Code, § 1.02.06) (Ord. 25-16, passed 5-23-2016; Ord. 25-19, passed 5-20-2019) Penalty, see § 10.99