Chapter 8.16 FOOD ESTABLISHMENT REGULATIONS

The county shall adopt the alternative inspection frequency program and fee schedule as established by the Oregon Health Division. The program shall apply to all chronic food establishment noncompliers. (Ord. 110 Amd. 1 § 1, 2000)

8.16.020 Delinquency fees adopted.

The county shall adopt the delinquency fees for licenses as established by the Oregon Health Division. Those facilities which are licensed by the Crook County environmental health department that are delinquent to renew their license will be assessed a penalty fee of 50 percent of their license fee. Delinquency fees are accumulative until a license is issued. (Ord. 110 Amd. 1 § 2, 2000)

8.16.030 Civil penalty fees.

The county has authority from the state to assess civil penalty fees for the following categories of violations:

• Operating without a license;

• Failing to embargo foods;

• Barring an inspector from the facility;

• Removal or hiding of public compliance/noncompliance notices;

• Operating while under a notice of closure.

Civil penalties will be imposed in the manner provided by this chapter. The maximum civil penalty for each of the above-listed violations shall be $500.00 per day per violation. (Ord. 288 § 1, 2016; Ord. 110 Amd. 1 § 3, 2000)

8.16.040 Food handler training.

The county shall comply with the mandate to establish mandatory food handler training. The county shall establish a fee of $10.00 to cover the costs of the training and card issuance as established by the Oregon Health Division. The fees will be established through resolution by the county court. The food handler’s card shall be good for three years throughout the state of Oregon. A $5.00 fee will be required for the replacement of a valid card. The county’s environmental health department will retain all fees for the direct operation of the training program. (Ord. 110 Amd. 1 § 4, 2000)

8.16.050 Out-of-county mobile food units.

The county shall adopt the requirement to charge a temporary license fee from all licensed out-of-county mobile food units. Those mobile food units that are licensed within the state will be charged the normal temporary license fee if they prepare and serve food beyond the scope of their initial mobile license. (Ord. 110 Amd. 1 § 5, 2000)

8.16.060 Eating and drinking establishment nuisance abatement criteria.

Eating and drinking establishments shall be subject to the following nuisance abatement criteria:

(1) Nuisance Activity Violations. No operator of an eating and drinking establishment, or any agent or employee thereof, shall permit a nuisance activity to occur in or upon the premises which the operator controls. For the purposes of this section, a “nuisance activity” means disorderly conduct as defined in ORS 166.025 (2007).

(2) Investigation. The sheriff’s office may investigate reported claims of nuisance activity and determine whether such activity occurred. If the sheriff’s office determines that a nuisance claim is substantiated, then a report will be made with findings regarding the occurrence of the nuisance and any related adverse effects.

(3) Nuisance Abatement Plan. If two or more instances of nuisance activity occur at the premises within any 12-month period, the operator shall develop a nuisance abatement plan to prevent nuisance activity from recurring. The sheriff’s office will notify the operator if it finds that a second report of a nuisance activity has been received and verified. The operator shall develop a nuisance abatement plan to be approved by the sheriff’s office within 30 days after such notification. The operator is in violation of this section if:

(a) The operator fails to submit a nuisance abatement plan that is acceptable to the sheriff’s office within the timeline provided; or

(b) The operator fails to operate the establishment in compliance with the nuisance abatement plan; or

(c) Nuisance activity occurs two or more times in any six-month period despite the implementation of the nuisance abatement plan.

(4) Remedies. If the operator is found to be in violation of subsection (3) of this section, the county court shall conduct a public hearing to examine findings made by the sheriff, and if a violation is deemed to have occurred may impose any of the following time, place, and manner abatement remedies:

(a) Limiting the hours or days during which the establishment may operate.

(b) Requiring the establishment to provide resources to monitor, control and respond to patron behavior at and around the establishment, including but not limited to hiring adequate security personnel to patrol the establishment.

(c) Restricting the activities at the establishment to prevent the reoccurrence of nuisance activities, including but not limited to restrictions upon the time and manner in which entertainment is offered.

(d) Suspending or revoking the establishment’s county gaming license.

(e) Submitting a recommendation to the Oregon Liquor Control Commission that the operator’s license to serve alcoholic beverages should not be renewed.

(f) Ordering the operator to undertake other actions reasonably necessary to abate the nuisance activities or mitigate the effects. (Ord. 205 § 1, 2008)

8.16.070 Administrative hearings applicability, exception.

(1) This chapter governs the procedure for the assessment of civil penalties.

(2) The Crook County court may, by order or resolution, adopt these procedures for the management of administrative hearings for additional matters.

(3) In all cases, a civil penalty is in addition to any other legal remedy available to redress violations of the code. (Ord. 288 § 2, 2016)

8.16.080 Definitions.

As used in this chapter, unless the context requires otherwise, the following definitions apply:

(1) “Notice” means the notice of violation and proposed civil penalty issued to the accused party under CCC 8.16.100.

(2) “The accused party” means a person to whom a notice has been issued.

(3) “Hearings officer” means a person designated under CCC 8.16.090 to adjudicate civil penalty proceedings.

(4) “County” means Crook County.

(5) “Party” means the accused party, the county, and any other person who has an interest in the outcome of the contested case and who is permitted or required by law to participate.

(6) “Person” means any individual, partnership, corporation, limited liability company, or association. (Ord. 288 § 2, 2016)

8.16.090 Hearings officers.

(1) The county court may designate one or more hearings officers to adjudicate civil penalty proceedings under this chapter.

(2) Hearings officers may administer oaths in connection with their duties as hearings officers. (Ord. 288 § 2, 2016)

8.16.100 Instituting civil penalty proceedings.

(1) Civil penalty proceedings may be instituted by:

(a) The county official responsible for administering the county code provisions believed to be violated;

(b) A peace officer;

(d) Any other person specifically authorized by law, order, ordinance, or resolution to institute civil penalty proceedings.

(2) Civil penalty proceedings are instituted when a notice of violation and proposed civil penalty is served on the accused party as required by this chapter. (Ord. 288 § 2, 2016)

8.16.105 Emergency license suspension, refusal to renew.

(1) If the county finds there is a serious danger to the public health or safety, it may, by order, immediately suspend or refuse to renew a license. For purposes of this rule, such an order is referred to as an emergency suspension order. An emergency suspension order must be in writing. It may be issued without prior notice to the person and without a hearing prior to the emergency suspension order.

(2)(a) When the county issues an emergency suspension order, the county shall serve the order on the person either personally or by registered or certified mail.

(b) The order shall include the following statements:

(i) The effective date of the emergency suspension order;

(ii) Findings of the specific acts or omissions of the person that violate applicable laws and rules and are the grounds for revocation, suspension or refusal to renew the license in the underlying conduct affecting the license;

(iii) The reasons the specified acts or omissions seriously endanger the public’s health or safety;

(iv) A reference to the sections of applicable law involved;

(v) That the person has the right to demand a hearing to be held as soon as practicable to contest the emergency suspension order; and

(vi) That if the demand for hearing is not received by the county within 60 calendar days of the date of notice of the emergency suspension order the person shall have waived its right to a hearing regarding the emergency suspension order.

(3) If the person files a timely request, the matter shall be referred to the hearings officer, the hearing on an emergency suspension held, and the order issued as soon as practicable, and, unless a delay is explained in the final order as required by subsection (7) of this section, in no event later than:

(a) Within seven calendar days of receiving a timely request for hearing, the county shall refer the matter to the hearings officer to hold a hearing on the emergency suspension order;

(b) Within 30 calendar days of receiving a referral for a hearing on an emergency suspension order, the hearings officer shall complete the hearing and close the evidentiary record;

(c) Within 15 calendar days of the close of the evidentiary record in the hearing, the hearings officer shall issue a final order.

(4) The time limits established in subsection (3) of this section may be waived or extended with the agreement of the county and the accused party.

(5) The hearing on the emergency suspension order may be combined with any related county proceeding affecting the license only with the agreement of the accused party and the hearings officer.

(6) At the hearing regarding the emergency suspension order, the hearings officer shall consider the facts and circumstances including, but not limited to:

(a) Whether the acts or omissions of the accused party pose a serious danger to the public health or safety; and

(b) Whether circumstances at the time of the hearing justify confirmation, alteration or revocation of the order.

(7) The hearings officer shall issue a final order. The final order shall be consistent with CCC 8.16.240 and shall be based upon the criteria in subsection (6) of this section. If any of the deadlines specified in subsection (3) of this section are not met, the final order shall state the reason. (Ord. 288 § 2, 2016)

8.16.110 Notice of violation and proposed civil penalty.

(1) The notice of violation and proposed civil penalty shall be on a form approved by the Crook County counsel.

(2) Notices shall contain the following:

(a) The name of the accused party;

(b) The section or sections of the law allegedly violated. If the applicable county code section(s) incorporate a state statute, rule, uniform code (such as the building code), or other source of law, the notice shall also contain citations to the sections of the applicable code, statute, or rule;

(c) A brief description of the violation in such a manner as can be readily understood by a person making a reasonable effort to do so;

(d) The date or range of dates for which the accused party is allegedly responsible for the violation;

(e) The location of the violation;

(f) The amount of the proposed civil penalty;

(g) Statements which advise the accused party, in ordinary, nontechnical language, of the following:

(i) The accused party’s right to a hearing;

(ii) The date, time and location of the hearing;

(iii) The procedures for requesting that the hearing be rescheduled, as described in CCC 8.16.130 and 8.16.135;

(iv) The procedures at the hearing, which may be a copy of this chapter;

(v) The requirement that the accused party appear in person at the hearing or submit a written statement in lieu of appearing in person;

(vi) That if the accused party does not appear in person at the hearing or does not submit a written statement in lieu of appearing in person:

(A) The full amount of the proposed civil penalty will be assessed;

(B) The accused party will be ordered to correct the violation; and

(C) Failing to pay a civil penalty or correct a violation after having been ordered or required to do so is a separate violation of the code and subjects the accused party to additional civil penalties, court action, liens, garnishments, interest charges, and other involuntary collection remedies;

(h) The date the notice was issued;

(i) The address at which the accused party may submit to the county written materials related to the notice; and

(j) The name, title, and signature of the person issuing the notice.

(3) Corrections.

(a) Any errors or omissions in the notice may be corrected at the hearing or at any time prior thereto.

(b) The accused party is entitled to be notified of any amendments or corrections to the notice.

(4) The accused party claiming that an error or omission in the notice constitutes a defense or that the notice should be set aside shall advise the hearings officer of the claimed error or omission prior to the close of the hearing and request the notice be set aside.

(a) Failure to request that the hearings officer set aside the notice due to an error or omission constitutes a waiver and will be an absolute bar to raising the issue at any later time or on appeal.

(b) A notice may be set aside by a hearings officer only if the accused party is materially prejudiced by the error or omission.

(c) If the hearings officer sets aside a notice due to an error or omission, the county may reinstitute civil penalty proceedings based upon the same conduct, condition, or circumstance alleged in the notice which the hearings officer set aside.

(5) The county counsel may approve a form that contains information in addition to the information required by subsection (2) of this section. (Ord. 288 § 2, 2016)

8.16.120 Service of notice.

(1) Service of a notice of violation may be accomplished in any manner reasonably calculated, under all the circumstances, to apprise the accused party of the existence and pendency of the proceedings and give the accused party an opportunity to appear and defend.

(2) The accused party may be served with the original notice or a copy thereof.

(a) Copies need not be certified true copies.

(b) The following methods of service are presumed to be reasonable under subsection (1) of this section:

(i) By personal delivery of the notice on the accused party;

(ii) By mailing the notice to the accused party by first class mail and by any of the following: certified, registered, or express mail. Mail sent certified, registered, or express mail shall be sent with return receipt requested;

(iii) By personal service on a registered agent, officer, director, general partner, or managing agent of a corporation, (limited) partnership, LLC, or association, or personal service upon any clerk on duty in the office of the registered agent;

(iv) By posting a copy of the notice in a conspicuous location upon the apparent main entrance to the dwelling or property and by mailing first class mail copies of the notice to the property and the address of the owner currently on file with the county tax collector.

(3) Service shall be deemed complete when personal service is accomplished or in the case of posted or mailed service the date on which the accused party signs a receipt for delivery or three days after the mailing, whichever occurs first.

(4) Documents sent through the U.S. Postal Service by regular mail are presumed to have been received by the addressee, subject to evidence to the contrary. (Ord. 288 § 2, 2016)

8.16.130 Setting the hearing, continuances.

(1) Either the county or the accused party may request that the hearing be rescheduled.

(2) Except as otherwise provided in this section, requests to reschedule may be delivered by facsimile transmission, but not by e-mail, and must include the reason(s) the request is made.

(3) Requests to Reschedule the Hearing.

(a) Requests to reschedule the hearing must be made in writing to the hearings officer with a copy served upon the other parties.

(b) If the party’s request to reschedule is made seven days or more prior to the hearing, the party may serve the other parties by first class mail; otherwise, service must be made in accordance with CCC 8.16.120.

(c) Requests to reschedule must include reasons for the request and the other parties’ positions on the request, if that can be reasonably discerned.

(d) If the party was unable to contact the other party for his or her position, the request must state the efforts made to obtain his or her position.

(4) Decisions on requests to reschedule the hearing will be made by the hearings officer.

(5) Decisions on Requests to Reschedule.

(a) The hearings officer shall consider only the written request to reschedule and information within the file which is available to the parties.

(b) The decision denying the request to reschedule must contain a brief statement of the reasons for the denial.

(d) Decisions on rescheduling requests will be mailed to the parties to the proceedings by first class mail, and may also be sent via whatever additional methods the hearings officer deems appropriate. (Ord. 288 § 2, 2016)

8.16.135 Late hearing requests.

(1)(a) The county must accept a properly addressed hearing request that was not timely filed if it was postmarked within the time specified for timely filing, unless any of the following applies:

(i) A statute prohibits the hearings officer from accepting it; or

(ii) The county receives the request after the entry of the final order by default or other deadline established by applicable statute or county ordinance.

(b) The county may accept any other late hearing request only if:

(i) There was good cause for the failure to timely request the hearing, unless other applicable statutes or county rules provide a different standard; and

(ii) The county receives the request before the entry of a final order, unless other applicable statutes or county rules provide a different timeframe.

(c) In determining whether to accept a late hearing request, the request must be supported by an affidavit under penalty of perjury that explains why the request for hearing is late and may conduct such further inquiry as it deems appropriate.

(d) Before granting a party’s late hearing request, the hearings officer will provide all other parties, including the county, an opportunity to respond to the late hearing request.

(2) If a party files a request for a hearing that the county finds is untimely and the party disputes the county finding of the date that the request was received or postmarked or that the county mailed or delivered the notice, then the matter will be referred to the hearings officer to make a determination on the dispute and issue an order as to whether the hearing request is either timely filed or late, and may choose to conduct a hearing or proceed on the written record. (Ord. 288 § 2, 2016)

8.16.140 Discovery and disclosure.

(1) Any discovery request must be reasonably likely to produce information that is generally relevant and necessary to the case, or is likely to facilitate resolution of the case.

(2) Before the hearing, upon request by the county or by a party, the county and each party must provide:

(a) The names, telephone numbers, and addresses of witnesses expected to testify at the hearing, except rebuttal witnesses;

(b) Documents that the party or county plans to offer as evidence;

(d) Responses to no more than 20 requests for admission (each subpart to count as a separate request) unless otherwise authorized, limited, or prohibited by the hearings officer.

(3) This section does not limit or otherwise conflict with the statutory authority, if any, of the county to investigate.

(4) Before filing a motion with the hearings officer for an order requiring discovery, a party or the county must make a good faith effort to obtain the information from the party, county or person who has the information, unless the effort would pose a substantial risk to any person or would be futile.

(5) Any party seeking an order from the hearings officer requiring discovery shall send a copy of the motion to all other parties. A request for an order requiring discovery must include a description of the attempts to obtain the requested discovery informally, and an explanation of how the discovery is likely to produce information that is generally relevant and necessary to the case or likely to facilitate resolution to the case.

(6) The hearings officer may authorize the requested discovery if the hearings officer determines that the requested discovery is reasonably likely to produce information that is generally relevant to the case, or likely to facilitate resolution of the case. Upon request of a party, a witness, or the county, the hearings officer may deny, limit, or condition discovery to protect any party, any witness, or the county from annoyance, embarrassment, oppression, undue burden or expense, or to limit the public disclosure of information that is confidential or privileged by statute or rule. In making a decision, the hearings officer shall consider any objections by the party, the witness or the county from whom the discovery is sought.

(7) If the hearings officer authorizes discovery, the hearings officer shall control the methods, timing and extent of discovery. Upon request of a party or the county, the hearings officer may issue a protective order limiting the public disclosure of information that is confidential or privileged by law.

(8) Only the hearings officer may issue subpoenas in support of a discovery order. The hearings officer, county, or the party requesting the discovery may apply to the circuit court to compel obedience to a subpoena. (Ord. 288 § 2, 2016)

8.16.145 Discovery enforcement.

(1) The hearings officer may refuse to admit evidence that was not disclosed in response to a discovery order or discovery request, or unless excluding the evidence would violate the duty to conduct a full and fair inquiry under ORS 183.417(8). If the hearings officer admits evidence that was not disclosed as ordered or requested, the hearings officer must, upon request, grant a continuance to allow an opportunity for the county or other party to respond to the undisclosed evidence.

(2) Requests for Admissions.

(a) The responses to a request for admission are to either admit or deny the allegations. If the party is without knowledge or information sufficient to form a belief as to the truth of an allegation, the party shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the allegations denied.

(b) Failure to respond to a request for admissions as described in subsection (2)(a) of this section required by a discovery order shall be deemed an admission of matters that are the subject of the request for admissions, unless excluding additional evidence on the subject of the request for admissions would violate the duty to conduct a full and fair inquiry under ORS 183.417(8). If the hearings officer does not treat failure to respond to the request for admissions as admissions under the terms of this chapter, the hearings officer may grant a continuance to enable the parties and the county to develop the record as needed.

(3) Nothing in this chapter shall be construed to require the county or any party to provide information that is confidential or privileged under state or federal law, except that upon request the county or any party must disclose all documents that the county or party intends to introduce at the hearing. (Ord. 288 § 2, 2016)

8.16.150 Depositions.

(1) Depositions may not be taken in contested cases without prior hearings officer authorization.

(2) A party or the county may petition the hearings officer for an order to take a deposition of a witness. A copy of the petition shall be sent to all other parties along with the hearings officer. The petition shall include the name and address of the witness, if known, explain why the witness’s testimony is material to the proceedings and explain why no other means of obtaining the witness’s testimony for the hearing is adequate. As used in this section, materiality means the testimony sought tends to make the existence of any fact that is of consequence to the determination of the issues more or less probable.

(3) The hearings officer shall consider the petition and issue a written order either granting or denying the deposition. If the hearings officer grants the deposition, the deposition shall be taken on such terms as the hearings officer may order including, but not limited to, location, manner of recording, time of day, persons permitted to be present and duration.

(4) Examination and cross-examination of deponents may proceed as permitted at the hearing.

(5) The testimony of the deponent shall be recorded.

(6) All objections made at the time of the examination shall be noted on the record.

(7) At any time during the taking of a deposition, upon motion and a showing by a party, the county or a deponent that the deposition is being conducted or hindered in bad faith or in a manner not consistent with this chapter or in such manner as unreasonably to annoy, embarrass or oppress the deponent, the county or any party, the hearings officer may order the examination to cease or may limit the scope or manner of the taking of the deposition. The taking of the deposition shall be suspended for the time necessary to make a motion under this subsection.

(8) Documents and things produced for inspection during the examination of the witness shall, upon the request of a party or the county, be marked for identification and annexed to and returned with the deposition, and may be inspected and copied by any party or the county.

(9) Deposition, including of a nonparty, may be compelled by a subpoena issued pursuant to CCC 8.16.155 and this section. The county, hearings officer, or the party which requests the deposition may apply to circuit court to compel obedience to a subpoena issued to compel a deposition.

(10) The hearings officer may not require the county to pay for any deposition taken by a noncounty party. (Ord. 288 § 2, 2016)

8.16.155 Subpoenas.

(1) Subpoenas for the attendance of witnesses or the production of documents at the hearing may be issued upon a showing of general relevance and reasonable scope of the evidence sought as follows:

(a) By the county on its own motion or by an attorney on behalf of the county;

(b) By the county or hearings officer upon the request of a party to a contested case; or

(2) A motion to quash a subpoena must be presented in writing to the hearings officer, with service on the county and any other party in the manner required by CCC 8.16.110.

(a) The county and any party may respond to the motion to quash within seven calendar days of receiving the motion. Any response must be in writing and served on the county and any other party in the manner required by CCC 8.16.110.

(b) The hearings officer shall rule on the motion to quash within 14 calendar days of receiving the motion.

(3) If a person fails to comply with a properly issued subpoena, the county, hearings officer or party may apply to any circuit court judge to compel obedience with the requirements of the subpoena.

(4) For good cause shown, the hearings officer may establish longer or shorter periods than those under subsection (2) of this section for the filing of motions and responses.

(5) The party issuing the subpoena shall be responsible for paying any mileage or fees required by ORS 44.415 for witnesses subpoenaed to a hearing under this chapter. (Ord. 288 § 2, 2016)

8.16.160 Prehearing conferences.

(1) Prior to hearing, the hearings officer may conduct one or more prehearing conferences to facilitate the conduct and resolution of the case. The hearings officer may convene the conference on the initiative of the hearings officer or at the county’s or a party’s request.

(2) Prior to the conference, the hearings officer shall notify the parties of the purposes of the conference and the matters to be considered. The county or any party may request that additional matters be considered at the conference by providing notice in writing to the hearings officer, the parties and the county.

(3) The purposes of a prehearing conference may include, but are not limited to, the following:

(a) To facilitate discovery and to resolve disagreements about discovery;

(b) To identify, simplify and clarify issues;

(d) To obtain stipulations of fact and to admit documents into evidence;

(e) To provide to the hearings officer, county and parties, in advance of the hearing, copies of all documents intended to be offered as evidence at the hearing and the names of all witnesses expected to testify;

(f) To authenticate documents;

(g) To decide the order of proof and other procedural matters pertaining to the conduct of the hearing;

(h) To schedule the date, time and location of the hearing or for any other matters connected with the hearing, including dates for prefiled testimony and exhibits and exchange of exhibits and witness lists; and

(i) To consider any other matters that may expedite the orderly conduct of the proceeding.

(4) The prehearing conference may be conducted in person or by telephone at the discretion of the hearings officer. The hearing itself must be attended as described in CCC 8.16.170.

(5) The failure of a party or the county to appear at a prehearing conference convened by the hearings officer shall not preclude the hearings officer from making rulings on any matters identified by the hearings officer in the notice issued under subsection (2) of this section, and discussion of any of these matters at the conference in the absence of the county or a party notified of the conference does not constitute an ex parte communication with the hearings officer.

(6) The hearings officer conducting the prehearing conference must make a record of any stipulations, rulings and agreements. The hearings officer shall either make an audio or stenographic record of the pertinent portions of the conference or shall place the substance of stipulations, rulings and agreements in the record by written summary. Stipulations to facts and to the authenticity of documents and agreements to narrow issues shall be binding upon the parties to the stipulation.

(7) After the prehearing conference begins, the hearings officer may at any time recess the hearing to discuss any of the matters listed in subsection (3) of this section.

(8) Nothing in this section precludes the county and parties from engaging in informal discussions of any of the matters listed in subsection (3) of this section without the participation of the hearings officer. Any agreement reached in an informal discussion shall be submitted to the hearings officer in writing or presented orally on the record at the prehearing conference or the hearing. (Ord. 288 § 2, 2016)

8.16.170 Hearings and decisions.

(1) Unless otherwise required by law, contested case hearings are open to the public.

(2) The hearings officer may exclude witnesses from the hearing, except for a party, a party’s attorney, expert witnesses, the county representative, one county officer or employee, and any persons authorized by statute to attend.

(3) A hearings officer may expel any person from the contested case hearing if that person engages in conduct that disrupts the hearing.

(4) Any party, party’s representative, county or county’s representative, having knowledge or reasonable belief that any person participating in the hearing may present a danger or may be a threat to anyone involved in the hearing, should immediately notify the hearings officer, the county and the parties or their representatives, if appropriate, of the potential danger.

(5) The hearings officer or the county may take any other measures reasonably required to ensure the safety and security of the participants in the hearing.

(6) The contested case hearing shall be conducted by and under the control of the hearings officer.

(7) If the hearings officer has an actual or potential conflict of interest as defined in ORS 244.020(1) or (12), that hearings officer shall comply with the requirements of Chapter 244 ORS.

(8) At the commencement of the hearing, the hearings officer shall explain the issues involved in the hearing and the matters that the parties must either prove or disprove.

(9) The hearing shall be conducted so as to include the following:

(a) The statement and evidence of the proponent in support of its action;

(b) The statement and evidence of opponents, interested agencies, and other parties;

(d) Any closing arguments.

(10) The hearings officer, the county, and parties or their attorneys or authorized representatives shall have the right to question witnesses.

(11) The hearing may be continued with recesses as determined by the hearings officer.

(12) The hearings officer may set reasonable time limits for oral presentation and may exclude or limit cumulative, repetitious, irrelevant or immaterial matter.

(13) Exhibits shall be marked and maintained by the hearings officer as part of the record of the proceedings.

(14) If the hearings officer receives any written or oral ex parte communication during the contested case proceeding, the hearings officer shall notify all parties and otherwise comply with the requirements of OAR 137-003-0055 (ex parte communications).

(15) The hearings officer shall preside over hearings under this chapter and may set reasonable rules of procedure designed to facilitate orderly and efficient presentation of evidence provided the rules do not conflict with this chapter.

(16) Except as otherwise provided in this section, the accused party must appear in person at the hearing.

(17) If the accused party is an individual, he or she may submit a written statement in lieu of personal appearance in accordance with subsection (19) of this section.

(18) Accused parties which are not individuals must designate a director, officer, managing agent, member, or employee who has the authority to act on the accused party’s behalf and to give sworn testimony on the accused party’s behalf.

(a) The designee must appear in person at the hearing.

(b) The hearings officer may require the designee to testify under oath to establish his or her authority.

(19) Statements in Lieu of Appearance.

(a) A written statement in lieu of personal appearance must be signed by the accused party or on behalf of the accused party and received by the county at the address on the notice at least seven business days prior to the hearing.

(b) Statements may be delivered via mail, hand delivery, or facsimile transmission, but not by e-mail.

(20) All testimony, including the statement described in subsection (17) of this section, must be given under oath.

(21) Hearings on notices involving the same person or persons, the same parcel of property, or common issues of fact or law may be consolidated and heard in a single proceeding.

(22) The Oregon Rules of Evidence do not apply to hearings conducted pursuant to this chapter.

(a) Subject to CCC 8.16.200, any relevant evidence shall be admitted if it is of the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of a common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.

(b) Although relevant, evidence may be excluded if the hearings officer determines its probative value is substantially outweighed by considerations of undue delay or needless presentation of cumulative evidence.

(23) The county may be represented by a code enforcement official, by legal counsel or assistant legal counsel, by a peace officer, or by any person so authorized by a county department head, county judge, or the Crook County court.

(24) The Accused Party Represented by an Attorney.

(a) The accused party may be represented by an attorney licensed to practice law in Oregon or may represent himself or herself.

(b) The appearance of an attorney does not alter the requirement that the accused party be personally present at the hearing.

(25) If the accused party has personally appeared at the hearing or timely delivered a written statement in lieu of personal appearance, and subject to the hearing officer’s discretion to reasonable rules of procedures pursuant to subsection (15) of this section, the county shall proceed first and have the burden of establishing the violation(s) by a preponderance of evidence, unless another burden of proof is otherwise established by law for a particular claim or element.

(a) The accused party proceeds second and, if personally present, may question the county’s witnesses, present testimony and evidence and make argument.

(b) If the accused party is not personally present, the hearings officer may not consider any testimony, argument or evidence on behalf of the accused party apart from the accused party’s written statement, if any.

(26) Penalty Only Hearing.

(a) If the accused party admits the violation and requests to be heard only on the issue of the penalty, the hearings officer may decide to proceed informally and dispense with sworn testimony.

(b) In such cases, the hearings officer shall proceed in any manner which provides the parties a full and fair opportunity to be heard on the issue of the penalty.

(27) If the accused party fails to appear at the hearing and has not submitted a written statement in lieu of appearance, the hearings officer shall close the hearing and issue a decision assessing the proposed civil penalty and ordering the accused party to correct the violation immediately.

(28) Decisions of the hearings officer shall be written and issued within 14 days from the date of the hearing.

(a) A decision is issued when it is mailed to the parties by first class mail or delivered to the parties in person.

(b) If the relevant burden of proof establishes one or more of the violations alleged in the notice, the decision shall state the facts which constitute each violation.

(c) If the relevant burden of proof does not establish one or more of the violations alleged in the notice the decision shall so state.

(d) The decision shall advise that the accused party may seek judicial review by filing a petition for a writ of review with the circuit court within 21 days of the date of the decision.

(29) Orders imposing a civil penalty and orders to correct a violation take effect upon personal delivery to the accused party or upon depositing a copy with the United States Post Office, whichever occurs first. (Ord. 288 § 2, 2016)

8.16.180 Motion for summary determination.

(1) Not less than 28 calendar days before the date set for hearing, the county or a party may file a motion requesting a ruling in favor of the county or party on any or all legal issues (including claims and defenses) in the contested case. The motion, accompanied by any affidavits or other supporting documents, shall be served on the county and parties in the manner required by CCC 8.16.110.

(2) Within 14 calendar days after service of the motion, the county or a party may file a response to the motion. The response may be accompanied by affidavits or other supporting documents and shall be served on the county and parties in the manner required by CCC 8.16.110.

(3) The hearings officer may establish longer or shorter periods than those under subsections (1) and (2) of this section for the filing of motions and responses.

(4) The party and the county may stipulate to a record, including a record limited to documents, upon which a summary determination shall be made.

(5) The hearings officer shall grant the motion for a summary determination if:

(a) The pleadings, affidavits, supporting documents (including any interrogatories and admissions) and the record in the contested case show that there is no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought; and

(b) The county or party filing the motion is entitled to a favorable ruling as a matter of law.

(6) The hearings officer shall consider all evidence in a manner most favorable to the nonmoving party.

(7) Each party or the county has the burden of producing evidence on any issue relevant to the motion as to which that party or the county would have the burden of proof at the contested case hearing.

(8) A party or the county may satisfy the burden of producing evidence through affidavits. Affidavits shall be made on personal knowledge, establish that the affiant is competent to testify to the matters stated therein and contain facts that would be admissible at the hearing.

(9) When a motion for summary determination is made and supported as provided in this section, a nonmoving party or nonmoving county may not rest upon the mere allegations or denials contained in that party’s or county’s notice, response, or answer, if any. When a motion for summary determination is made and supported as provided in this section, the hearings officer or the county must explain the requirements for filing a response to any unrepresented party or parties.

(10) The hearings officer’s ruling may be rendered on a single issue and need not resolve all issues in the contested case.

(11) If the hearings officer’s ruling on the motion resolves all issues in the contested case, the hearings officer shall issue a final order in accordance with CCC 8.16.240. (Ord. 288 § 2, 2016)

8.16.190 Motions.

(1) A request for any order or other relief may be made by filing a motion in writing. The motion need not be in any particular form.

(2) Before filing any motion, the moving party or county should make a good faith effort to confer with any nonmoving party or county regarding the order or relief sought to seek agreement about the subject of the motion. The moving party or county need not make an effort to confer if efforts to confer would pose a risk to any person or would be futile. Any motion must describe the effort to confer and the result of the effort, or explain why the moving party or county made no effort to confer with the nonmoving party or county.

(3) Unless otherwise provided by statute or rule, all motions shall be filed in writing at least 14 calendar days before the date set for the hearing and a copy provided to the parties and to the county. Motions may include, but need not be limited to:

(a) Motions made in a prehearing conference;

(b) Motions for a ruling on legal issues under CCC 8.16.180;

(d) Motions to quash a subpoena under CCC 8.16.155.

(4) The county or a party may file a response to a motion.

(a) Responses to motions filed 14 or more calendar days before the date of the hearing shall be in writing with service to the parties and to the county in the manner required by CCC 8.16.110 and shall be filed and served within seven calendar days after receipt of the motion.

(b) Responses to motions filed fewer than 14 calendar days before the date of the hearing may be in writing or presented orally at the hearing. If the response is in writing, the response must be filed and served on the parties or the county in the manner required by CCC 8.16.110 before the start of the hearing.

(5) Responses to late-filed motions may be presented orally or in writing at the contested case hearing.

(6) At the request of a party or the county, or on the hearings officer’s own motion, the hearings officer may establish longer or shorter periods for the filing of motions and responses. The hearings officer may also consider motions presented orally at the contested case hearing. In exercising discretion under this subsection, the hearings officer shall consider the duty to ensure a full and fair inquiry into the facts and the likelihood of undue delay or unfair prejudice.

(7) The mere filing or pendency of a motion, even if uncontested, does not alter or extend any time limit or deadline established by statute, rule or order.

(8) The hearings officer shall rule on all motions on the record before issuance of a final order. (Ord. 288 § 2, 2016)

8.16.200 Evidentiary rules.

(1) Evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible.

(2) Irrelevant, immaterial, or unduly repetitious evidence shall be excluded, and privileges afforded by Oregon law shall be recognized by the hearings officer.

(3) All offered evidence, not objected to, will be received by the hearings officer subject to the hearings officer’s power to exclude irrelevant, immaterial, or unduly repetitious matter, or privileged material.

(4) Evidence objected to may be received by the hearings officer. If the hearings officer does not rule on its admissibility at the hearing, the hearings officer shall do so either on the record before a final order is issued or in the final order.

(5) The hearings officer shall accept an offer of proof made for excluded evidence. The offer of proof shall contain sufficient detail to allow the reviewing county or court to determine whether the evidence was properly excluded. The hearings officer shall have discretion to decide whether the offer of proof is to be oral or written and at what stage in the proceeding it will be made. The hearings officer may place reasonable limits on the offer of proof, including the time to be devoted to an oral offer or the number of pages in a written offer. (Ord. 288 § 2, 2016)

8.16.210 Judicial notice and official notice of facts.

(1) The hearings officer may take notice of judicially cognizable facts on the record before issuance of a final order. The county or party(ies) may present rebuttal evidence.

(2) The hearings officer may take official notice of general, technical or scientific facts within the specialized knowledge of the hearings officer.

(a) If the hearings officer takes official notice of general, technical or scientific facts, the hearings officer shall provide such notice to the parties and the county, before the issuance of the final order.

(b) The county or a party may object or may present rebuttal evidence in response to the hearings officer’s official notice of general, technical or scientific facts.

(c) If an objection is made or if rebuttal evidence is presented, the hearings officer shall rule before the issuance of the final order on whether the noticed facts will be considered as evidence in the proceeding.

(3) Before the issuance of the final order, the hearings officer may take notice of judicially cognizable facts and may take official notice of general, technical or scientific facts within the specialized knowledge of the hearings officer as follows:

(a) The moving party shall provide notice of judicially cognizable facts or official notice of general, technical or scientific facts in writing to the hearings officer and parties to the hearing.

(b) Another party may present rebuttal evidence in response to the motion notice of judicially cognizable facts or official notice of general, technical or scientific facts.

(c) The hearings officer shall rule on whether the noticed facts will be considered as evidence in the proceeding. (Ord. 288 § 2, 2016)

8.16.220 Penalty amounts and other orders by the hearings officer.

(1) The hearings officer shall impose a civil penalty for each violation established.

(a) The amount of the civil penalty shall be the amount proposed in the notice of violation unless the hearings officer finds, based upon the evidence or statements of the accused party, that a lesser civil penalty is required to avert an injustice.

(b) A decision imposing a lesser penalty shall state with particularity the reasons why a lesser penalty is justified under this section.

(2) In addition to any civil penalty imposed, the hearings officer shall order the accused party to correct each violation.

(a) If the accused party did not appear at the hearing or submit a written statement in lieu of personal appearance, the order shall require the accused party to correct the violation immediately.

(b) Otherwise, the accused party shall be ordered to correct the violation within a definite period, which may be immediately.

(c) The hearings officer may order the accused party to take specific corrective action if the hearings officer determines that doing so would facilitate compliance with the code.

(3) A failure to correct a violation as ordered by the hearings officer or pay a civil penalty when due is subject to a civil penalty of up to $500.00 for each day the violation is not corrected or civil penalty is not paid. (Ord. 288 § 2, 2016)

8.16.230 Collection of civil penalties.

(1) Unless otherwise ordered by the hearings officer, civil penalties are due immediately.

(2) Unpaid civil penalties accrue interest at a rate of nine percent per year.

(3) The county has a lien on the real property where the violation occurred and on any real property in Crook County owned by the accused party for the amount of a civil penalty plus accrued interest.

(4) The county may record the hearings officer decision in the county lien records at any time after 30 days from the date the decision was issued.

(5) The lien referred to in subsection (3) of this section attaches when the decision is mailed or personally delivered to the accused party, whichever occurs first.

(a) An order granting the accused party time within which to pay a civil penalty does not affect the county’s lien.

(b) In all cases, the lien is for the full civil penalty together with accrued interest regardless of when payment is due. (Ord. 288 § 2, 2016)

8.16.240 Final decision.

(1) The decision of the hearings officer is the final decision of the county.

(2) Final orders in contested cases shall be in writing.

(3) Except as provided in subsection (4) of this section, all final orders in contested cases shall include the following:

(a) Each of the elements of the violation;

(b) An order stating the action authorized to be taken by the county as a result of the facts found and the legal conclusions arising therefrom; and

(4) When informal disposition of a contested case is made by stipulation, agreed settlement or consent order, the final order need not comply with subsection (3) of this section. However, the order must state the hearings officer determination and:

(a) Incorporate by reference a stipulation or agreed settlement signed by the party or parties agreeing to that action; or

(b) Be signed by the party or parties; and

(5) The final order shall be served on each party and, if the party is represented, on the party’s attorney.

(6) The date of service of the final order on the parties or, if a party is represented, on the party’s attorney shall be specified in writing and be part of or be attached to the order on file with the county, unless service of the final order is not required by statute. (Ord. 288 § 2, 2016)