(A) If the city has investigated or inspected any property or facility, and believes the property owner, or other responsible party, is in violation of this subchapter, or if the city has other reasonable grounds to believe that there has been a violation of any part of this subchapter, or that the property owner or otherwise responsible party is not in compliance with this subchapter, the city may take civil enforcement action as authorized by statute, rule, ordinance, and regulation, and may also refer the matter for criminal prosecution. Civil enforcement may involve court or administrative actions including, but not limited to, revocation of business licenses or conditional use permits, injunctive actions, and closures, and may involve cost recovery, penalties, and other remedies. Civil and criminal actions may be brought simultaneously. A person does not need to be first adjudged liable in a civil matter before facing criminal charges.
(B) The city may initiate criminal prosecution for environmental or noise-related violations either alone or in conjunction with civil enforcement. Criminal prosecutions for environmental violations of state or federal law may be filed by the City Attorney, County Attorney, State Attorney General, United States Department of Justice, or other enforcement entity with appropriate jurisdiction. Factors that the city may consider in recommending criminal enforcement include the following factors, and any other relevant factors:
(1) The nature and seriousness of the offense, including the immediacy of the threat of danger to the life or safety of another, or the harm or threatened harm to human health or the environment;
(2) The degree to which the violation was designed to provide economic gain or cost avoidance, or involved a pattern of conduct or a common attitude of illegal conduct;
(3) The degree to which the offender is a known violator and has avoided prior corrective actions requested by the city;
(4) The degree to which prosecution might deter future violations;
(5) The person’s actual culpability in connection with the offense, including the presence of criminal intent;
(6) The person’s willingness, or unwillingness, to cooperate in the investigation, including whether the violator has attempted to conceal evidence;
(7) The appropriateness of referring the case to other agencies having prosecutorial interest; and
(8) Possibilities of civil remedies which would be more appropriate than initiating the criminal justice process.
(C) The city may bring an action to restrain, or enjoin, actions in violation of public health, environmental laws, and other laws, or abate conditions in violation of such laws.
(D) (1) The city may, at its discretion, issue a notice of violation and order of compliance (NOV).
(2) The city may provide notice to the owner of the property, or otherwise-responsible person, by sending the NOV via certified mail to the last known address of the owner of the property, or other responsible person, or through personal service as provided by the state rules of civil procedure. If mailed notice is returned undeliverable, the owner of the property, or other responsible person, may be personally served or be given notice by other methods reasonably calculated to give actual notice to the owner, or other responsible party.
(3) The NOV shall:
(a) Describe the property and the persons believed to be in violation;
(b) Describe the violation;
(c) Provide an opportunity for the putative offender to describe remedial action that will ensure compliance with the provisions of this subchapter;
(d) Set a reasonable time for the performance of any required remedial action(s);
(e) Describe the procedure to contest the NOV and the time limits for such a contest; and
(f) Notify the owner, or other responsible person, that if no written contest is filed within the time required, the NOV will become final and un-appealable to any administrative entity or court.
(4) As detailed in the NOV, as set out in division (D)(3) above, a party aggrieved by an NOV may request, in writing, within ten days of the date of the NOV, a conference with the city official issuing the NOV.
(5) (a) After issuance of the NOV, the alleged violator has the option to request, and attend, a conference to discuss the NOV and possible settlement with the city. No Hearing Officer will be present.
(b) If the parties agree to a settlement, the city will prepare a binding settlement agreement, or a stipulation and consent order, which may require the payment of penalties and the costs of investigation. The parties may also agree to a settlement at any time subsequent to the conference. After signing a settlement agreement, or a stipulation and consent order, the parties waive all rights to further department and court hearings or appeals. Settlement agreements, or stipulation and consent orders may be enforced in state courts.
(6) Parties aggrieved by an NOV, where the matter was not successfully resolved at the conference stage, may then request an appeal hearing before the city’s Hearing Officer. The Hearing Officer will be present at these proceedings and make a written determination based on evidence and testimony from both parties, who may be represented by legal counsel. The decision of the Hearing Officer is a final determination for the purposes of further appeal.
(7) If a party fails to respond to an NOV within the required time, the NOV becomes a final order, un-appealable to any administrative entity or court. The city may then enforce the order in any court of competent jurisdiction.
(E) (1) Variances allowed by the city to the requirements of this subchapter shall be only by written approval and the issuance of a variance permit, following the same procedure set out in § 90.23. The decision to issue, or not issue, the variance permit shall be made by the Mayor, or his or her designee.
(2) If the Mayor, or his or her designee, finds that an emergency exists that requires immediate action to protect the public health, he or she may, without notice or hearing, issue an order declaring the existence of an emergency, and requiring that action be taken as he or she deems necessary to meet the emergency. The order shall be effective immediately. Any person to whom the order is directed shall comply and abate the nuisance immediately, but may petition the Mayor, or his or her designee, for a hearing in accordance with the appeal procedures set out above in this section. After the hearing, and depending upon the findings as to whether the person has complied with the provisions of this subchapter, the Mayor, or his or her designee, shall continue the order in effect or modify or revoke it based on relevant findings. If circumstances warrant because of the seriousness of the hazard, the city may act to correct or abate the emergency without issuance of an order or directive, or without waiting for the expiration of compliance time previously given in an order.
(Prior Code, § 8.08.070) (Ord. 27-2016, passed 12-21-2016)