(a) Purpose and Applicability.
(1) The purpose of this section is to provide additional and alternative methods and processes to enforce the municipal code provisions regarding exterior sanitation and common nuisances related to property located within the City in a fair, speedy and inexpensive manner, and to improve compliance with such provisions.
(2) This section shall be in addition to those methods and processes otherwise contained in the Municipal Code of the City of Vienna and shall be applied at the discretion of the enforcement official enforcing the provisions of this section.
A. Sanitation (IPMC 2012 or as amended)
B. Drainage (IPMC 2012 or as amended)
C. Sidewalks in disrepair (IPMC 2012 or as amended)
E. Exterior garbage accumulation (Vienna Codified Ordinances Article 537 or IPMC 2012 or as amended)
F. Grafitti (IPMC 2012 or as aemdned)
G. Open storage in residential districts (Vienna Codified Ordinances, Article 537 or IPMC 2012 or as amended).
H. Nonresident recreational vehicles (As set out in the “Rules and Regulations Governing Camper Vehicles, Recreational Vehicles, and Auto Campgrounds” as set out in the Vienna Municipal Code at “Part Eleven - Health and Sanitation’).
(4) The Building Inspector, Code Enforcement Officer, Vienna Fire Chief, and the Vienna Police shall have authority to enforce the provisions of this section shall be referred to herein collectively as “enforcement officials.”
(b) Investigations. Upon receipt of information or observation of circumstances indicating the likelihood of a violation of any provision of the Municipal Code of the City of Vienna as set out in this section, the enforcement official shall investigate the facts and may, to the extent permitted by law, make an inspection of the premises.
(c) Notice of Violation.
(1) If an enforcement official determines that a code violation exists, the enforcement official shall provide written notice of such violation to the person having either ownership or control of any land, building, structure, sign, property, licensed or permitted business or operation which is in violation, and shall order that the violation be corrected. Notice of the violation shall be served in person and, if the enforcement official is unable to serve the Notice of Violation in person, then service shall be made by posting the said notice in a conspicuous place on the violating property. Further, the enforcement official shall serve the property owner or person in control of the violating property in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that a method of service effectuated by a mailing by the clerk of a court (e.g., service pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D) - certified mail) shall be deemed to be effectuated by a mailing by an enforcement official. If service is made by certified mail pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D) and delivery of the notice of the violation is refused, the enforcement official, promptly upon the receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the notice of the violation (s); a notice that despite such refusal, the notice of the violation(s) is valid; and advising that the City will proceed to enforce the notice of violation(s). So long as such first class mailing is not returned as undeliverable by the U.S. Postal Service, service of the notice of violation(s) will be conclusively presumed to have been effectuated. Proof of service shall be made at the time of service by a written declaration, under oath, executed by the enforcement official effecting service and shall declare the time, date and manner by which service was made.
(2) Any notice of violation(s) under this section shall be in writing and shall contain the following:
A. The date the notice of violation is given;
B. The name and address of the person(s) charged with the violation;
C. The section of the ordinance being violated;
D. The nature of the violation;
E. A statement of the action required to be taken in order to correct the violation;
F. The time period allowed for the violation to be corrected prior to the issuance of a citation.
1. When determining the time period allowed for correction, the enforcement official shall take into consideration the threat posed by the violation to the health, safety and welfare of the public and the nature of the work required to correct the violation, provided that no such time period for correction shall be less than five days;
G. The maximum fines that may be assessed if the violation is not corrected; and
H. The name, address and telephone number of the enforcement official issuing the notice of violation.
(d) Issuance of Citations.
(1) If the violation has not been corrected within the period established in the notice of violation, or is a repeat violation as set forth in subsection (g) hereof, the enforcement official may issue a citation to the violator. The citation shall be in writing and shall contain the following:
A. The date the citation is issued;
B. The name and address of the person(s) charged with the violation;
C. The section of the ordinance that has been violated;
D. The nature of the violation;
E. The place and time the violation occurred;
F. The date the notice of violation was given;
G. The amount of the fine imposed for the violation;
H. The name, address, and telephone number of the enforcement official issuing the citation; and
I. The name, address and telephone number of the office of the Municipal Court Clerk, where fines are to be paid, and of the municipal court, where citations may be appealed.
(2) A citation shall be in accordance with the law of the State of West Virginia concerning the service of process in civil actions, except that a method of service effectuated by a mailing by the clerk of a court (e.g., service pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D)) shall be deemed to be effectuated by a mailing by an enforcement official. If service is made by certified mail pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D) and delivery of the citation is refused, the enforcement official, promptly upon the receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid , a copy of the citation, a notice that despite such refusal, the citation is valid, and notice that the City will proceed to enforce the citation; so long as such first class mailing is not returned as undeliverable by the U.S. Postal Service, service of the citation will be conclusively presumed to have been effectuated. Proof of service shall be made at the time of service by a written declaration, under oath, executed by the enforcement official effecting service and shall declare the time, date and manner by which service was made.
(e) Penalties. Any person issued a citation pursuant to subsection (d) hereof shall be punished by a fine as follows: within any 12-month period, $100.00 for the first citation, $200.00 for the second citation, $300.00 for the third citation, and $500.00 for the fourth citation and each citation thereafter. Every day the violation remains uncorrected can be a separate violation.
(f) Nonpayment of Fines. All fines imposed by citations under this section shall be due within ten days of service of the citation except as otherwise set forth herein. The failure to pay when due any fine imposed under this section shall constitute a failure to appear or otherwise respond under WV Code 8-10-2b(c) and may result in notification to the DMV.
(g) Repeat Violations. If a person has been previously served with a notice of violation for a violation contained in subsection (a) hereof, whether or not the violation is timely corrected or a citation is issued, he shall not be entitled to receive an additional notice(s) of violation for the same category of violation if the same category of violation is repeated within a six-month period of the issuance of either a notice of violation or a citation, the enforcement official may proceed in accordance with subsection (d) hereof without further notice to the violator.
(h) Appeal.
(1) Any person who is issued a citation shall pay the fine indicated for the violation, as set forth in subsection (e) hereof, in full to the office of the Vienna Municipal Court Clerk within ten days of service of the citation. Any person alleging he or she was improperly issued such citation may, within ten days of service of such citation, file a petition for appeal of the citation, along with the required bond, with the Vienna Municipal Clerk in accordance with the following:
A. In order to properly and timely appeal his or her citation, within ten days of service of the citation, the recipient of the citation shall pay the required amount of the applicable fine in full to the Municipal Court Clerk, which amount will be held by the municipal court as bond pending hearing and resolution of the case by the municipal court and the Vienna Municipal Court Clerk shall issue a receipt to the recipient of the citation showing the amount of the bond paid. In addition to the bond, the recipient of the citation shall file with the Vienna Municipal Court Clerk a petition for appeal of the citation. If any petition for appeal filed in accordance with this section is not timely filed or is not accompanied with the required bond, the recipient of the citation shall be deemed to have waived his or her right to appeal the citation, and such petition shall be summarily denied as untimely filed; provided, however, that nothing set forth hereinabove shall prevent the municipal court judge from finding, upon a proper application and showing, that the recipient of the citation suffers from financial hardship, and, as a result, waiving the requirement that the bond be posted.
B. Any petition for appeal filed with the Vienna Municipal Court Clerk must be in writing, on the form to be provided by the Municipal Court Clerk, and must be signed by the recipient of that citation affirming that the contents of the petition are true and accurate to the best of the recipient of the citation’s knowledge at that time. Such petition for appeal shall state the facts and reasons in support of the petition. Upon filing any such petition for appeal with the Municipal Court Clerk, the recipient of the citation shall serve a copy of the petition and receipt showing proof of bond, or application for waiver thereof, upon the City Attorney.
(2) Upon filing of a petition for appeal with the Municipal Court Clerk, the Clerk or his or her designee shall place the case on the municipal court docket, set the case for hearing within 30 days from the date of the filing of the petition for appeal, provide a notice of hearing to the recipient of the citation, and forward a copy of the petition to the enforcement official who issued the citation. Upon receipt of the petition, the enforcement official shall cause a copy of the citation at issue to be forwarded to the Vienna Municipal Court Clerk who shall file it as the original complaint alleging the violation indicated therein.
(3) The municipal court shall treat the citation itself as the original complaint before the court. At the close of all of the evidence presented at the hearing on the petition for appeal, should the municipal judge find against the recipient of the citation, the bond posted by the recipient of the citation shall be applied as payment for the fine imposed for the violation. Should the court find in favor of the recipient of the citation, the bond, if applicable, shall be refunded to the recipient of the citation by the Municipal Court Clerk, and the citation shall be dismissed.
(Ord. 13-14. Passed 12-18-14.)