Chapter 8.34
ENFORCEMENT—PENALTY—ABATEMENT
Sections:
8.34.010 Enforcement.
8.34.020 Order of abatement.
8.34.030 Penalty for failure to abate.
8.34.040 Abatement of immediate hazard.
8.34.050 Appeal.
8.34.060 Collection of civil penalties.
8.34.070 Settlement of suits for collection of civil penalties.
8.34.080 Liability.
8.34.010 Enforcement.
The severity of enforcement shall generally correspond to the degree of actual or potential impact to the health and safety of the community. When a violation of this title occurs, the enforcement officer may utilize one or a combination of the following enforcement mechanisms. Given the degree of the violation, the enforcement officer may determine which enforcement action is appropriate. The administration and enforcement of this chapter and this title shall be the responsibility of the chief of police of the city of Battle Ground and any employees to which he shall delegate such responsibility.
A. Initial Notice of Violation—Service—Form.
1. The initial notice of violation of this title shall be served upon the person or persons to whom it is directed, either personally, or in a manner provided for personal service of notice of complaint by the municipal court, or by mailing a copy of the notice by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address. Proof of personal service shall be made at the time of service by a written declaration by the person affecting service, declaring time, date and manner by which service was made.
2. The initial notice of violation will inform the responsible person, persons, firm or corporation that the violation must be corrected within thirty days from the date of this notice, or if in the opinion of the enforcement officer, because of the nature and or degree of the violation, a sooner date may be required, including up to immediate action.
3. The initial notice of violation shall be in the form of a letter and include the following information or blanks in which such information is entered:
a. Case number;
b. Name and address of person to whom the notice is being given;
c. Name of property owner if applicable/different;
d. Section of ordinance in violation;
e. A brief description of the violation of which the person is being notified;
f. The date on which the violation occurred;
g. The place at which the violation occurred;
h. The date on which the notice was issued;
i. A statement of corrective action, if any, required to be taken as determined by the enforcement officer and the time line in which to do so;
j. A statement of the potential civil and/or criminal action that may be taken if such corrective action is not completed;
k. A statement that the determination of violation may be appealed as prescribed by BGMC 8.34.050 by filing a written notice with the Battle Ground municipal court within ten days of service of the initial notice of violation.
B. Civil Penalty—Cumulative—Notice of Infraction Service—Form.
1. Violations of the provisions of this chapter shall be a civil infraction unless otherwise stipulated within this chapter. Each day any person, firm or corporation allows a violation to exist shall constitute a separate offense, which shall incur a cumulative penalty in the amount of one hundred dollars per violation per day from the date set for correction thereof pursuant to this title until the violation is corrected, plus court and attorney costs associated with collection.
2. Whenever an officer who is designated to enforce the provisions of this title determines that a violation of this title is occurring, that officer is authorized to issue a notice of infraction directed to the person or persons permitting, committing or causing such a violation. The notice of infraction shall be served upon the person or persons to whom it is directed, either personally, or in a manner provided for personal service of notice of complaint by the municipal court, or by mailing a copy of the notice by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address. Proof of personal service shall be made at the time of service by a written declaration by the person affecting service, declaring time, date and manner by which service was made.
3. The notice of infraction shall contain the following information:
a. Case number;
b. Name and address of person to whom the notice is being given;
c. Name of property owner if applicable/different;
d. Section of ordinance in violation;
e. A brief description of the violation of which the person is being notified;
f. The date on which the violation occurred;
g. The place at which the violation occurred;
h. The date on which the notice was issued;
i. The notice of infraction shall contain a certification, if made by a duly authorized enforcement official, to the effect that he/she certifies that he/she has reasonable grounds to believe, and does believe, that the person cited committed a violation of this chapter.
C. Criminal Citation—Penalty—Service—Form.
1. Second or subsequent violations of the provisions of this title, or violations which in the opinion of the enforcement officer are of such a degree as to endanger the health and/or safety of a person or persons and/or the safety of the community may be considered a misdemeanor. It shall be a separate offense for each day or portion thereof during which any violation of any provision of this chapter is committed. Any person who violates any provision of this chapter shall be subject, upon conviction in court, to a fine not to exceed one thousand dollars per occurrence and/or ninety days in jail.
2. The criminal citation shall be served upon the person or persons to whom it is directed, either personally, or in a manner provided for personal service of notice of complaint by the municipal court, or by mailing a copy of the notice by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address. Proof of personal service shall be made at the time of service by a written declaration by the person affecting service, declaring time, date and manner by which service was made.
3. A criminal citation shall include the following:
a. Case number;
b. Name and address of person to whom the notice is being given;
c. Name of property owner is applicable/different;
d. Section of ordinance in violation;
e. A brief description of the violation of which the person is being notified;
f. The date on which the violation occurred;
g. The place at which the violation occurred;
h. The date on which the notice was issued;
i. The date the person is required to appear in court;
j. The address and phone number of the court. (Ord. 04-011 § 1, 2004: Ord. 03-017 § 8 (part), 2003)
8.34.020 Order of abatement.
Unless otherwise stipulated in this title, when judgment is rendered against any person, persons, firm or corporation, finding them guilty of violating the provisions of this chapter, it shall be the duty of the court before whom the conviction is had, in addition to imposing the penalty or penalties provided in BGMC 8.34.010(B) and (C), to order the defendant or defendants in such action to forthwith abate the violation; and, if the abatement is not completed within twenty-four hours thereafter, or such time allowed by the court, it shall be abated by the chief of police of the city of Battle Ground, or by any other officer authorized by order of the court, which order of abatement shall be entered upon the docket of the court and made a part of the judgment in the action. The provisions of this section relative to the abatement of the violation are not exclusive, and all other rights or remedies of the city of Battle Ground, and any citizen thereof, relative to the abatement, are declared to remain in full force and effect. Any cost incurred by the city of Battle Ground for abatement by the city, or any of its agents or employees, shall be assessed against the person, firm or corporation being found guilty of violating the provisions of this title. (Ord. 03-017 § 8 (part), 2003)
8.34.030 Penalty for failure to abate.
Any person found guilty of violating a provision of this chapter, who shall neglect or fail to abate such violation within twenty-four hours next after his conviction, or such time allowed by the court for so allowing such condition to exist, shall, for each twenty-four hours thereafter for which the violation is continuing, be subject to like penalty as originally incurred. (Ord. 03-017 § 8 (part), 2003)
8.34.040 Abatement of immediate hazard.
If the chief of police finds there is an immediate hazard to public health or safety he may abate such hazard without following the procedures of this title. In such a case a hearing may be held or offered after the abatement, after notice, and if the hearing officer finds that a hazard existed and that its immediate correction was necessary, the amount of the cost shall be billed and if not paid shall be filed as a lien against the property. (Ord. 03-017 § 8 (part), 2003)
8.34.050 Appeal.
A. Hearing Officer—Appointment. The city manager shall appoint one or more hearing officers to hear appeals relating to the interpretation and/or enforcement of this title. The hearing officer may be a city employee or the municipal judge, but shall not be an employee of the city attorney’s office nor the Battle Ground police department.
B. Hearing Officer—Powers and Duties. A hearing officer shall hear all appeals taken from the administration of this title. The hearing officer shall hear evidence presented by the city attorney and/or enforcement officer. The hearing officer shall likewise hear evidence presented by the person appealing the decision or interpretation.
The hearing officer shall give substantial weight to the enforcement officer’s decision/interpretation and shall substitute his/her judgement only upon a showing by the appellant that the director’s decision/interpretation is arbitrary and capricious or clearly erroneous. Formal rules of evidence need not be followed, but witnesses shall be sworn by the hearing officer and a written order issued.
C. Appeal Procedure.
1. All appeals shall be filed in writing with the hearing officer or other such agency as the city may designate. All appeals must be filed within ten working days of the date of the issuance of the initial notice of violation or notice of infraction.
2. All appeals to the hearing officer shall contain the following:
a. The names of the appellants participating in the appeal;
b. A brief statement setting forth the action protested and the reason why it is claimed such protested action should be reversed, modified or otherwise set aside;
c. The signature of all parties named and telephone numbers and mailing addresses;
d. Verification, by declaration under penalty of perjury, of at least on appellant of the truth of the matter stated in the appeal. Upon receiving the appeal, the city clerk or other designated person or agency shall transmit the same to the designated hearing officer as provided herein.
3. Failure of any person to file a timely appeal or failure of any person who has filed an appeal to attend the scheduled hearing shall constitute a waiver of his or her right to an appeal hearing.
4. A copy of the final order of hearing officer shall be mailed to the appellant(s) within three working days following the entry of a written order under this section. Unless otherwise stated in the order, such order shall be final and conclusive ten days from the date of mailing thereof unless any party of record makes application to a court of competent jurisdiction for a judicial review and stay of enforcement. (Ord. 03-017 § 8 (part), 2003)
8.34.060 Collection of civil penalties.
The civil penalty imposed pursuant to this chapter constitutes a personal obligation of the person or persons to whom the notice of infraction is directed. The city attorney on behalf of the city is authorized to collect the civil penalty by use of appropriate legal remedies, seeking or granting of which shall neither stay nor terminate the accrual of additional per diem penalties so long as the violation continues. (Ord. 03-017 § 8 (part), 2003)
8.34.070 Settlement of suits for collection of civil penalties.
The chief of police or his designee and/or the city attorney are authorized to enter into negotiations with the parties or their legal representative named in the lawsuit for the collection of civil penalties to negotiate a settlement, and compromise or otherwise dispose of a lawsuit when to do so would be in the best interest of the city. (Ord. 03-017 § 8 (part), 2003)
8.34.080 Liability.
Nothing in this title shall be deemed to impose any liability upon the city of Battle Ground or upon any of its officers or employees, or to relieve the owner or occupant of any private property from the duty to keep their property in a safe and healthy condition. (Ord. 03-017 § 8 (part), 2003)