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A. Scope Of Adjudication Of Certain Building Code And Nuisance Violations:
1. Authority: Pursuant to 65 Illinois Compiled Statutes 5/11-31.1-1 et seq., the Village of Wayne hereby establishes a procedure for a system of local adjudication of certain Building Code and nuisance violations to the extent permitted by local ordinance and State law. Violations which may be pursued under this section include any provision of this Code that establishes construction, plumbing, heating, electrical, fire prevention, sanitation or other health and safety standards that are applicable to structures in the Village, or any Village ordinance that requires, after notice, the cutting of weeds, the removal of garbage and debris, the removal of inoperable motor vehicles, or the abatement of nuisances from private property.
2. Shared Process Acceptable: The process for adjudicating Building Code and nuisance violations may be consolidated and organized in conjunction with the process for other types of administrative adjudications so authorized by this Code.
3. Procedures Non-Exclusive: The adoption of the Building Code and nuisance administrative adjudication procedures are non- exclusive and shall not preclude the Village from using other methods to enforce its Municipal ordinances, including, but not limited to, the prosecution of such violations in a court of competent jurisdiction.
B. Composition Of Code Hearing Division; Powers And Duties:
1. Code Hearing Division Established: A Code Hearing Division is hereby established with the authority to oversee the Building Code and nuisance administrative adjudication prosecutions in the Village, as further provided herein.
2. Hearing Officer: All adjudicatory hearings shall be presided over by a duly qualified Hearing Officer, who shall be appointed by the Village President with the advice and consent of the Board of Trustees. The Hearing Officer's powers and duties shall include the authority to:
a. Preside over adjudicatory hearings, listen to testimony, and accept evidence that is relevant to the existence of code violations;
b. Administer oaths;
c. Upon written request of the parties or their representatives, issue subpoenas and direct witnesses to appear and give testimony at the hearings;
d. Rule upon objections and the admissibility of evidence;
e. Preserve and authenticate the record, including the exhibits and evidence introduced at hearings;
f. Weigh the evidence at hearings based upon relevancy and competence, determine the credibility of witnesses, and resolve conflicts in testimony;
g. Make ultimate findings and determinations based on the relevant and competent evidence presented at a hearing of whether a code violation exists;
h. Issue a written determination, which shall include findings of fact, final decision, and order, and which shall include any fine, costs, penalty or other action with which the defendant must comply should the defendant be found liable; and,
i. The Hearing Officer shall not have the authority to impose a penalty of incarceration or impose a fine in excess of seven hundred fifty dollars ($750.00) for each violation.
C. Administrative Code Hearing Process:
1. Content Of Violation Notice: When a Village official with authority to enforce Village Building Code and nuisance violations makes a determination that a violation has occurred, he or she shall note the violation on a multiple copy violation notice and report form that indicates the following:
a. Name and address of defendant;
b. Type and nature of violation, including section or regulation violated and legal authority and jurisdiction under which the hearing is to be held;
c. Date and time the violation was observed;
d. Address of the structure where violation was observed;
e. Name(s) of witness(es) to the violation, if any;
f. Date, time, and location of the adjudicatory hearing;
g. The amount of fine, if any, and notice that failure to pay within the allotted time will result in adjudication of the violation notice through the administrative hearing process and the penalties for failing to appear at the administrative hearing;
h. Signature and identification number, if applicable, of the person issuing the violation notice;
i. Hearing date, time, and location; and,
j. Penalty for any late fee.
The violation report form shall be forwarded to the Code Hearing Division where a docket number shall be stamped on all copies of the report and a hearing date shall be noted in the blank space provided for that purpose on the form. The hearing date shall be not less than thirty (30) nor more than forty (40) days after the violation is reported by the building inspector. One copy of the violation notice shall be maintained in the files of the Code Hearing Division and shall be part of the record at the hearing; one copy of the report form shall be returned to the individual representing the Village in the case so he or she may prepare evidence of the Building Code violation or nuisance for presentation at the hearing on the date indicated; and one copy of the report form shall be served either in person or by first class mail to the defendant, along with a summons commanding the defendant to appear at the hearing.
If the name of the owner of the structure cannot be ascertained or if service on the owner cannot be made by mail, service may be made on the owner by posting or nailing a copy of the violation report form on the front door of the structure where the violation is found, not less than twenty (20) days before the hearing is scheduled.
2. Subpoenas: Parties may request in writing to the Hearing Officer before the hearing date that the Hearing Officer issue subpoenas to direct attendance and testimony of relevant witnesses and the production of relevant documents.
At any time prior to the hearing date, but not less than two (2) working days prior to the hearing date, the Hearing Officer assigned to hear the case may, at the request of either party, direct witnesses to appear and give testimony at the hearing. If on the date set for hearing, the defendant or his or her attorney fails to appear, the Hearing Officer may find the defendant in default and shall proceed with the hearing and accept evidence relevant to the existence of a Building Code violation or nuisance in the defendant's absence.
3. Hearing: At the hearing, parties shall be provided with an opportunity to give testimony, present witnesses, submit evidence, and cross-examine opposing witnesses. Parties may be represented by legal counsel.
4. Notice Other Than Mail: If the person who has been charged with a Building Code or nuisance violation cannot be found or served by first class mail, the Village may post notice on the front door or in some other prominent place on the property on which the code violation or nuisance occurred, and the posting shall be deemed sufficient notice.
5. Continuances: No continuances shall be authorized by the Hearing Officer except in cases in which a continuance is necessary to protect the rights of the parties. Lack of preparation shall not be grounds for a continuance.
D. Prima Facie Case, Evidence, And Standards Of Proof:
1. Prima Facie Case: A prima facie case may be established if the violation notice served in compliance with the provisions of this chapter is certified by the issuer. A violation notice shall be admissible in any subsequent administrative or legal proceeding.
2. Rules Of Evidence: The formal and technical rules of evidence shall not apply in the adjudicatory hearing process.
3. Burden Of Proof: The burden of proof to sustain a finding of violation of Village ordinances shall be by a preponderance of the evidence.
E. Rights Of Property Occupants: It is a violation of this chapter for any person to take action or threaten to take action for eviction, forcible entry and detainer or similar proceeding or other adverse action against an occupant of property solely because such occupant agrees to testify or testifies at a Building Code and nuisance administrative adjudication hearing.
F. Defenses To Code Violations And Nuisances: It shall be a defense to an owner of property for which a charge of a Building Code violation or nuisance under this chapter is made if the owner of the property, his or her attorney, or any other agent or representative proves to the Hearing Officer's satisfaction that:
1. Violation Does Not Exist: The Building Code violation or nuisance alleged in the notice does not in fact exist, or at the time of the hearing, the violation or nuisance has been remedied or removed;
2. Violation Caused By Occupants: The Building Code violation or nuisance alleged in the notice has been caused by the current property occupants and that, in spite of reasonable attempts by the owner to maintain the dwelling free of such violation or nuisance, the current occupants continue to cause the violation or nuisances; or,
3. Owner Refused Entry: An occupant of the dwelling has refused entry to the owner or his or her agent to all or part of the dwelling for the purpose of correcting the Building Code violation or nuisance.
G. Findings, Decision, Order, And Penalty:
1. Hearing Officer Determination: At the conclusion of a hearing, the Hearing Officer shall make a determination, on the basis of the relevant and competent evidence presented at the hearing, whether or not a Building Code or ordinance violation exists. The determination shall be in writing and shall be designated as findings, decision, and order. The findings, decision, and order shall include the Hearing Officer's findings of fact, a decision whether or not a Building Code violation or nuisance exists based upon the findings of fact, and an order.
2. Determination Of Violation: If a Building Code violation or nuisance is found, the order may impose a fine and costs and may direct the defendant to correct the violation or abate the nuisance and/or impose such other sanctions as may be appropriate as allowed by law consistent with Village ordinance; set a date by which the violation must be brought into compliance, if applicable. The order shall contain a statement of the penalties for late payment and that any unpaid fines, costs, and penalty assessed is a debt due and owing to the Village after the exhaustion of, or the failure to exhaust judicial procedures for review. In the case in which a defendant fails to comply with a judgment ordering the correction of a code violation or imposing any fine or other sanction as a result of the code violation, the order shall provide that any expense incurred by the Village to enforce the judgment, including, but not limited to, attorney fees, costs, and costs related to property demolition or foreclosure, shall be a debt due and owing to the Village and may be collected in accordance with applicable law. If a violation or nuisance is not found, the order shall include a statement to that effect and dismiss the case. A copy of the findings, decision, and order shall be served on the owner within five (5) days after issuance by first class mail.
3. Default Judgment: A notice of judgment entered by default shall be forwarded to any person who fails to appear and shall contain the same information as a determination of liability but shall also state that the judgment may be set aside by the Hearing Officer if, within twenty one (21) days of issuance of the judgement, a petition is received stating what the Hearing Officer determines is good cause for failure to appear. The default judgment shall state that it constitutes a final determination of liability if such petition is not received, if the petition is denied, or after setting a new hearing date the person fails to appear.
4. Penalties And Costs: The Hearing Officer shall not have the authority to impose a penalty of incarceration or impose a fine in excess of seven hundred fifty dollars ($750.00) for each violation. When applicable, each day a code provision is found to have been violated by the defendant shall constitute a separate offense, and each separate offense subjects the defendant to the fine and penalty provided by the governing fine or penalty provision. Any fine assessed is exclusive of any costs imposed. In all cases where there is a determination of liability by the Hearing Officer, the Hearing Officer shall impose administrative costs (i.e., court costs) in the amount of twenty five dollars ($25.00) or greater.
5. Additional Penalties And Costs: In addition, and not withstanding any fines and administrative costs, the Hearing Officer may order:
a. Costs incurred by the Village for effecting compliance with code provision(s) for which a defendant has been found liable;
b. Compliance with the code provision(s) found to have been violated;
c. Performance of a term of community service in lieu of fines.
1. Fines And Fees Paid Within Twenty One Days: All fines and fees must be paid within twenty one (21) days of issuance of the determination of liability and the exhaustion or failure to exhaust any administrative remedy. Failing to pay the total fines and costs within twenty one (21) days of the issuance of the determination of liability and the exhaustion or the failure to exhaust any administrative review procedures as set forth in this chapter shall result in the imposition of a late penalty payment fee as follows:
a. Between Twenty Two And Forty Two Days: A late payment penalty fee of fifty dollars ($50.00) shall be imposed if the total fines and costs are paid more than twenty one (21) days following the issuance of the determination of liability but within forty two (42) days following the issuance of the determination of liability.
b. Between Forty Three And Sixty Three Days: A late payment penalty in the amount of seventy five dollars ($75.00) shall be imposed if the total fines and costs are paid more than forty two (42) days following the issuance of the determination of liability but within sixty three (63) days following the issuance of the determination of liability.
c. After Sixty Three Days: A late payment penalty fee of one hundred dollars ($100.00) shall be imposed if the total fines and costs are paid more than sixty three (63) days following the issuance of the determination of liability.
I. Judicial Review:
1. Final Determination: Any final decision by a Hearing Officer that a Building Code violation or nuisance does or does not exist shall constitute a final determination for purposes of judicial review and shall be subject to review under the Illinois Administrative Review Law, as amended.
2. Expiration Of Judicial Review Period: After the expiration of the period within which judicial review under Administrative Review Law may be sought for final determination of a Building Code or nuisance violation, the Village may commence a proceeding in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois, for the purpose of obtaining a judgment on the findings, decision, and order. Nothing in this chapter shall prevent the Village from the consolidation of multiple findings, decisions, and orders against a person in such a proceeding.
3. Subsequent Proceedings: Issues such as whether a Building Code or nuisance violation occurred and the penalties that are imposed may not be raised in any enforcement proceeding after the period for judicial review has passed.
J. Enforcement Of Administrative Orders:
1. Debt Due And Owing: Any fine, costs or other sanction imposed that remains unpaid after the exhaustion of, or the failure to exhaust judicial review procedures under the Illinois Administrative Review Law, shall be considered a debt due and owing to the Village and enforced in the same manner as a judgment entered by a court of competent jurisdiction and may be collected in accordance with applicable law.
2. Sanctions Applicable To Owner: An order to correct a Building Code violation or abate a nuisance and the fine or other sanctions imposed by the Village as a result of a finding of a code violation or nuisance under this chapter shall attach to the property as well as the owner of the property, so that a finding of code violation against one owner cannot be avoided by conveying or transferring the property to another owner. Any subsequent transferee or owner of property takes subject to the findings, decision, and order of a Hearing Officer under this chapter.
K. Vacant Residential Real Estate: A person who contracts with the Federal government or any of its agencies, including, without limitation, the Department of Housing and Urban Development, to care for vacant real estate shall be responsible for maintaining the property to prevent and correct Village Health and Safety Code violations.
L. Other Methods Of Code And Ordinance Enforcement:
1. Validity Of Other Systems: This chapter shall not affect the validity of system of administrative adjudications that were authorized by State law, including the Village of Wayne ordinances.
2. Contempt: Any person, having received notice and opportunity for a hearing as provided in this chapter, who knowingly fails to comply with an order issued by the Hearing Officer under this chapter, including the issuance of a subpoena, shall, if the order is not stayed by the court of competent jurisdiction prior to its effective date, be guilty of contempt. Each day that a violation continues shall be considered a separate and distinct offense. It shall not be a defense that a person came into compliance with an order, sought judicial review of it, or made efforts to comply with an order, subsequent to its effective date.
3. Additional Expenses In Enforcement: Any expense incurred by a municipality to enforce the judgment, including, but not limited to, attorney's fees, court costs, and costs related to property demolition or foreclosure, after they are fixed by a court of competent jurisdiction or a Hearing Officer, shall be a debt due and owing to the Village and may be collected in accordance with applicable law. However, prior to any expenses being fixed by a Hearing Officer, the Village shall provide notice to the defendant that states that the defendant shall appear at a hearing before the Administrative Hearing Officer to determine whether the defendant has failed to comply with the judgment. The notice shall set the date for such a hearing, which shall not be less than seven (7) days from the date that notice is served. If notice is served by mail, the seven (7) day period shall begin to run on the date notice was deposited in the mail.
M. Collections Of Fines And Costs: All fines and other monies to be paid to the Village in accordance with this chapter shall be remitted to the Village and deposited in the appropriate Village account as designated by the Village Administrator, or his designee. (Ord. 19-12, 8-6-2019)