Chapter 1.25 ENFORCEMENT

The purpose of this article is to provide for the welfare, safety and health of the citizens of Marion County by establishing a procedure whereby the ordinances of Marion County can be enforced quickly and cost-effectively. It is immediately necessary to enact this ordinance enforcement procedure, in order to ensure timely enforcement of county ordinances and maintain public confidence and certainty in said ordinances. [Ord. 1105 § 1, 1999.]

1.25.020 Definitions.

For the purposes of this article, the following definitions shall be used:

“County ordinance” means all ordinances duly enacted by Marion County, including but not limited to zoning, planning, nuisance abatement, health, solid waste, public works and building ordinances.

“Enforcement officer” means that person(s) who is appointed to enforce Marion County ordinances and who is authorized to issue violation citations pursuant to MCC 1.25.040.

“Person” includes:

1. Any state, public or private corporation, local governmental unit, public agency, individual, partnership, association, firm, trust, estate or any other legal entity, contractor, subcontractor or combination thereof. For the purposes of this article, “person” also includes those residing in or conducting business or activities in the incorporated or unincorporated areas of Marion County; and

2. The owner, title holder, contract seller, or contract buyer of the land upon which the violation is occurring is equally responsible for the violation of a county ordinance, as is the possessor of the land, user of the land or the person who is taking the action, conduct or omission which constitutes a violation of any county ordinance.

“Violation citation” means that document(s) which, when properly served upon the alleged ordinance violator, brings the matter before the appropriate court for resolution. The elements of a violation citation are set forth in MCC 1.25.070.

“Violator” means any person who has admitted violation of a county ordinance or a person who has been adjudicated to have violated a county ordinance. [Ord. 1264 § 2(12), 2008; Ord. 1105 § 2, 1999.]

1.25.030 Violation citation – Other remedies.

A. Except as otherwise specifically provided in this article, a violation citation may be used for violation of any county ordinance.

B. Each day (24-hour period) that a violation exists shall constitute a separate occurrence.

C. Violation citations may be filed against the same person for repeated violations of the same ordinance so long as the violations have occurred on separate days.

D. The county may, at any time, whether before or after the issuance of one or more violation citations, institute a complaint in the Marion County circuit court for any other remedy provided by law including, but not limited to, injunction, mandamus, abatement, receivership or other appropriate proceedings to prevent, temporarily or permanently enjoin or abate the violation. [Ord. 1105 § 3, 1999.]

1.25.040 Enforcement officers.

The board of commissioners shall appoint one or more persons to act as enforcement officer(s) who may issue violation citations, serve summons and prosecute violation citations in justice courts. The appointment(s) shall be made a part of the board’s records. [Ord. 1105 § 4, 1999.]

1.25.050 Jurisdiction of the courts.

Any justice court or circuit court shall have concurrent jurisdiction of all complaints for violation of a county ordinance. Violation citations may be filed in any justice court in Marion County. [Ord. 1105 § 5, 1999.]

1.25.060 Designation of attorney for Marion County.

The Marion County board of commissioners hereby elects to have Marion County legal counsel or assistant Marion County legal counsel prosecute complaints and seek other legal remedies. However, enforcement officers are authorized to appear without legal counsel when prosecuting violation citations in justice courts. [Ord. 1105 § 6, 1999.]

1.25.070 Violation citation.

A. The violation citation shall consist of four parts. The required parts are:

1. The complaint.

2. The abstract of record.

3. The enforcement officer record.

4. The summons.

B. Each of the four parts shall contain the following information:

1. The name of the court, the name of Marion County, in whose name the action is brought, and the name of the defendant(s).

2. A statement or designation of the alleged violation(s) of county ordinance(s) in such a manner as can be readily understood by a person making a reasonable effort to do so; designation of the particular ordinance(s) violated; and the date, time and place at which the violation of county ordinance(s) is alleged to have occurred.

3. A certification signed by the enforcement officer issuing the violation citation stating that the enforcement officer has reasonable grounds to believe, and does believe, that the person served with the violation citation violated a county ordinance, contrary to law.

C. A uniform citation conforming to the requirements of this section may be used for violation citations.

D. Motion to Set Aside. The complaint shall be set aside by the court upon motion of the defendant, before a plea, when the complaint does not conform to the requirements of this section. A pretrial ruling on a motion to set aside may be appealed by the county. The court may allow Marion County to amend the complaint or file an amended complaint. [Ord. 1105 § 7, 1999.]

1.25.080 Summons.

In addition to the requirements set forth in MCC 1.25.070(B), a summons in a violation citation is sufficient if it contains the following:

A. The name of the court, the name of the person cited, the date on which the violation citation was issued and the date, time and place at which the person cited is to appear in court.

B. A statement or designation of the violation of county ordinance in such a manner as can be readily understood by a person making a reasonable effort to do so, and the date, time and place at which the ordinance violation is alleged to have occurred.

C. A notice to the person cited that a violation citation will be filed with the court, based upon the alleged violation of county ordinance.

D. The amount of the fine for violation of the ordinance. [Ord. 1105 § 8, 1999.]

1.25.090 Service.

A. Service of the summons in a violation citation shall be by the enforcement officer, sheriff’s deputy or process server upon the person(s) whose conduct, action(s) or omission(s) constitute the ordinance violation(s).

B. If personal service cannot readily be made, substitute service or office service may be made as provided in Oregon Rules of Civil Procedure 7(D).

C. The enforcement officer issuing a violation citation shall cause a copy of the abstract of record to be delivered to the office of Marion County legal counsel and shall deliver the complaint to the appropriate court. [Ord. 1105 § 9, 1999.]

1.25.100 Defendant’s appearance – Payment of fine – Request for hearing – Statement – Admission of violation.

A. The defendant shall either appear in court at the time indicated in the summons, or prior to such time may:

1. Submit a request for a hearing in writing;

2. Personally request a hearing at the time of appearance; or

3. Admit violation of the county ordinance, in person or in writing, and give a statement of matters in explanation or mitigation of the violation.

B. In any case in which the defendant personally appears in court at the time indicated in the summons, and the defendant desires to admit the violation of the county ordinance and the court accepts the admission, the court shall hear any statement in explanation or mitigation that the defendant desires to make.

C. If the defendant does not appear in court at the time indicated in the summons, and has not complied with any portion of subsection (A) or (B) of this section, the court shall enter a judgment against the defendant in an amount equal to the fine set forth on the face of the summons, together with court costs, administrative fees and any special costs.

D. In any case where a defendant has provided an explanation in mitigation, the court, at its discretion, may request a description of the violation and enforcement history from the enforcement officer or any other person. The court shall receive this information in the form of testimony or by written statement. [Ord. 1105 § 10, 1999.]

1.25.110 Statement as waiver of hearing and consent to judgment – Fine forfeiture.

If a defendant has not requested a hearing, but has submitted to the court any written statement in explanation or mitigation of the ordinance violation, the statement constitutes a waiver of hearing and consent to the entry of judgment against the defendant. The court may declare a forfeiture of the fine or portion thereof on the basis of the statement and/or any testimony or written statement of the enforcement officer or other person, if any, which may be presented to the court. [Ord. 1105 § 11, 1999.]

1.25.120 Hearing date – Notice to defendant – Waiver.

A. If the defendant requests a hearing, the court shall fix a date and time for the hearing, and advise the defendant of the date.

B. If the defendant fails to appear at the time set for the hearing without having previously requested in writing a continuance, the court shall enter a judgment against the defendant in the amount of the fine set forth on the summons.

C. No warrant of arrest may be issued for failure to appear for a hearing under this article. [Ord. 1105 § 12, 1999.]

1.25.130 Hearing – Burden of proof – Pretrial discovery.

A. The hearing of any violation citation shall be by the court without a jury.

B. The hearing of any violation citation shall not commence until the expiration of a minimum of seven days from the date of the violation citation.

C. The county shall have the burden of proving the violation of the ordinance(s) by a preponderance of the evidence.

D. The pretrial discovery rules set forth in the Oregon Rules of Civil Procedure shall apply to violation citations.

E. Proof of negligence, malfeasance, misfeasance, nonfeasance, willful conduct, knowing conduct, intentional conduct, or any other culpable mental state is not an element of any ordinance violation.

F. At any hearing involving a violation citation, an attorney shall not be provided at public expense. [Ord. 1105 § 13, 1999.]

1.25.140 Prosecution of violation citation.

Notwithstanding any provision of the Oregon Rules of Civil Procedure or any other provision of this article, the prosecution of one violation citation shall not bar the subsequent prosecution of additional county ordinance violations occurring or committed at the same time or as part of the same act or transaction or as part of the same occurrence as other ordinance violation(s). Evidence of prior ordinance violation(s) shall be admissible in any subsequent prosecution of any ordinance violation. [Ord. 1105 § 14, 1999.]

1.25.150 Civil judgment.

A judgment upon a violation citation shall be treated as a civil judgment. The judgment involves only a fine, assessment and costs and does not incur loss by forfeiture, suspension or revocation of any license or any other privilege or other civil penalty. A person against whom a judgment is issued does not suffer any disability or legal disadvantage similar to that imposed on one convicted of a crime. [Ord. 1105 § 15, 1999.]

1.25.160 Appeal from judgment.

An appeal from a judgment may be taken by either party as follows:

A. From a proceeding in justice court, as provided in ORS Chapter 53; or

B. From a proceeding in circuit court, as provided in ORS Chapter 19. [Ord. 1264 § 2(12), 2008; Ord. 1105 § 16, 1999.]

1.25.170 Court costs.

A. The court, in addition to any fine, shall charge court costs to the defendant(s) where any judgment is rendered finding the defendant(s) did violate a Marion County ordinance.

B. Court costs shall be $25.00. Said costs cannot be waived by the county, the defendants or the court in any proceeding. If the defendant fails to pay the costs, the costs shall be entered as a judgment against the defendant in the same manner and with like effect as a judgment for a fine. [Ord. 1105 § 17, 1999.]

1.25.180 Consent decree.

A. The county and the defendant may enter into a consent decree. The consent decree shall provide that the defendant does not admit a violation of county ordinance but will make necessary corrections, as set forth in the agreement, to bring the defendant’s actions, conduct, omissions or property into conformance with appropriate county ordinances.

B. The defendant, the defendant’s attorney, if any, and the county legal counsel shall sign all consent decrees.

C. The consent decree shall be filed with the court as a final adjudication of the proceedings and shall constitute a dismissal of the action when defendant performs as agreed. The defendant or Marion County may seek a court order dismissing the case upon completion of the conditions of the consent decree.

D. The defendant’s failure to comply with the consent decree shall allow Marion County to seek any additional remedies provided by law or this article. [Ord. 1105 § 18, 1999.]

1.25.190 Administrative fees.

The court, in addition to any fines or court costs, shall charge an administrative fee to any defendant(s) where any judgment in favor of Marion County is rendered finding the defendant(s) did violate a Marion County ordinance. This administrative fee shall be in the amount of $100.00 and shall be used to recoup the county’s costs of enforcement including but not limited to enforcement officer investigation, monitoring, paperwork, legal costs and costs of legal enforcement. This fee shall automatically be imposed and may not be waived. The administrative fee may only be imposed once per violation citation. [Ord. 1105 § 19, 1999.]

1.25.200 Special costs.

A. The county shall be entitled to recover all special costs and disbursements that are reasonable and necessary expenses incurred in the successful prosecution of a violation citation other than for legal services, but including the costs/expenses/salaries of officers, employees and witnesses, the necessary expenses of taking depositions, the expense of publication of summons or notices, postage, compensation of expert witnesses, and the expense of copying any public record, book or document used as evidence in the trial.

B. The special costs shall be allowed to the county in the same manner as a judgment for fines. [Ord. 1105 § 20, 1999.]

1.25.210 Penalties.

A. Violation of this article shall be punishable, upon conviction, by a fine of not more than $500.00 for a noncontinuing offense and a fine of not more than $1,000 for a continuing offense.

B. Repealed by Ord. 1297.

C. All fines collected by the county, excluding county assessment, shall be distributed to the department that initiated prosecution of the violation. [Ord. 1297 § 3, 2009; Ord. 1105 § 21, 1999.]

1.25.220 Private right of action.

Any person, whether acting as principal, agent or employee, whose interest is or may be affected by any violation of a Marion County ordinance may, in addition to the other remedies provided by law, file a violation citation in the following manner:

A. The private citizen shall prepare and present the violation citation to the appropriate enforcement officer. If the enforcement officer fails to act upon the violation citation within 14 days, the citizen may submit the violation citation to legal counsel. Legal counsel may investigate the alleged violation of a county ordinance and, after consultation with the appropriate department or division head, shall either (1) cause the violation citation to be served and prosecute, or (2) decline to serve the violation citation or to prosecute. Legal counsel shall notify the private citizen of said action within 14 days from the date the violation citation is presented to legal counsel.

B. The private citizen, following notice by legal counsel of legal counsel’s refusal to prosecute, may within 60 days of such notice bring an action pursuant to this article in the citizen’s name against the alleged violator in the same manner and form as provided by this article. Should the private citizen prevail against the violator, any fine imposed and special costs shall be awarded to the plaintiff private citizen. [Ord. 1105 § 22, 1999.]

Article II. Building Code Violations

1.25.230 Purpose.

The purpose of this article is to adopt provisions setting forth notice and hearing procedures for the assessment of monetary penalties for building code violations that include the assessment of a monetary penalty consistent with the requirements of Chapter 476, OR Laws 2009. [Ord. 1297 § 1, 2009.]

1.25.240 Assessment of monetary penalties.

The following provisions shall apply to the assessment of monetary penalties for building code violations in place of any inconsistent provisions in Article I of this chapter:

A. Violations, Penalties, and Remedies.

1. Violation of a provision of the Marion County building code shall be subject to an administrative civil penalty not to exceed $5,000 for a single violation or $1,000 per day for a continuing violation and shall be processed in accordance with the administrative procedures set forth in this article.

2. Each day that a violation of a provision of the Marion County building code exists constitutes a separate violation.

3. The penalties and remedies provided in this section are not exclusive and are in addition to other penalties and remedies available to the county under any ordinance, statute or law.

B. Building Official – Authority to Assess Administrative Civil Penalty.

1. Upon a determination by the building official that any person, firm, corporation or other entity however organized has violated a provision of the Marion County building code, the building official may issue a notice of civil violation and assess against the violator and/or any other responsible person an administrative civil penalty as provided in this section. For purposes of this article, a “responsible person” includes the violator, and, if the violator is not the owner of the building or property at which the violation occurs, may include the owner as well.

2. Prior to issuing an order to correct a violation under this section, the building official may pursue reasonable attempts to secure voluntary correction.

3. Prior to issuing a notice of civil violation and assessing an administrative civil penalty under this section, the building official shall issue an order to correct the violation to one or more of the responsible persons. Except where the building official determines that the violation poses an immediate threat to health, safety, environment, or public welfare, the time for correction shall be not less than 10 calendar days.

4. Following the date or time by which the correction must be completed as required by the order to correct the violation, the building official shall determine whether the correction has been completed. If the required correction has not been completed by the date or time specified in the order, the building official may issue a notice of civil violation and assess an administrative civil penalty to each responsible person to whom an order to correct was issued.

5. Notwithstanding subsections (B)(2) and (3) of this section, the building official may issue a notice of civil violation and assess an administrative civil penalty without having issued an order to correct violation or making attempts to secure voluntary correction where the building official determines that the violation was knowing or intentional or a repeat of a similar violation.

6. In assessing an administrative civil penalty authorized by this section, the building official shall consider:

a. The person’s past history in taking all steps necessary or appropriate to correct the violation;

b. Any prior violations of the Marion County building code;

c. The gravity and magnitude of the violation;

d. Whether the violation was repeated or continuous;

e. Whether the cause of the violation was an unavoidable accident, negligence, or an intentional act.

7. Any notice of a civil violation that assesses an administrative civil penalty under this section shall either be served by personal service or shall be sent by certified mail and by first class mail. Any notice served by mail shall be deemed received for the purposes of any time computations three days after the date mailed if to an address within this state, and seven days after the date mailed if to an address outside this state. Every notice shall include:

a. Reference to the particular building code provision involved;

b. A short and plain statement of the basis for the violation and any other relevant facts;

c. A statement of the amount of the penalty assessed;

d. If the penalty is assessed pursuant to subsection (B)(5) of this section, a short and plain statement of the basis for concluding that the violation was knowing, intentional, or repeated; and

e. A statement of the party’s right to appeal the civil penalty to the Marion County hearings officer; a description of the process the party may use to appeal the civil penalty; and the deadline by which an appeal must be filed.

8. Any person, firm, corporation or other entity however organized that is issued a notice of civil penalty may appeal the penalty to the hearings officer. The provisions of subsection (C) of this section shall govern appeals.

9. A civil penalty assessed hereunder shall become final upon expiration of the time for filing an appeal, unless the responsible person appeals the penalty to the hearings officer pursuant to, and within the time limits, established by subsection (C) of this section.

C. Appeal Procedures.

1. A person, firm, corporation or other entity however organized may, within 15 days after receiving notice of the assessment of a monetary penalty, appeal in writing to the hearings officer. The appeal shall be filed in the offices of the Marion County building inspection division, accompanied by a $25.00 appeal fee, and shall include:

a. The name and address of the appellant;

b. The nature of the determination being appealed;

c. The reason the determination is incorrect; and

d. What the correct determination of the appeal should be.

2. An appeal shall be heard by hearings officer within a reasonable time of the receipt of the notice of intent to appeal. At least 10 days prior to the hearing, the county shall mail notice of the time and location thereof to the appellant.

3. The hearings officer shall hear and determine the appeal on the basis of the appellant’s written statement and any relevant additional evidence submitted. At the hearing, the appellant may present testimony and oral argument personally or by counsel. The building official may appear with or without counsel or through the building official’s designee. The building official may present testimony and oral argument personally or by counsel. The burden of proof shall be on the building official by a preponderance of the evidence. The rules of evidence as used by courts of law do not formally apply.

4. The hearings officer shall issue a written decision within a reasonable time of the hearing date. The written decision of the hearings officer is final.

5. The building official is authorized to collect an awarded penalty by any administrative or judicial action or proceeding authorized by subsection (D) of this section, other provisions of the Marion County Code, or state statutes.

D. Unpaid Penalties.

1. An administrative penalty is final if not appealed within the time period set forth in subsection (C)(1) of this section or if appealed, upon issuance of the hearings officer’s order. Failure to pay an administrative penalty assessed pursuant to this article within 10 days after the penalty becomes final shall constitute a violation of the Marion County building code. Each day the penalty is not paid shall constitute a separate violation.

2. If an administrative civil penalty is affirmed on appeal and the penalty remains unpaid 60 days after the penalty becomes final, the hearings officer’s order may be recorded with the Marion County clerk or any other county clerk of this state. The total amount of civil penalties, costs or fees owing pursuant to that order shall be recorded as a lien in the county clerk lien record. The cost of recording the hearings officer’s order shall be added to the total amount of civil penalties, costs and fees owing.

3. In addition to any other remedy provided by law, a hearings officer’s order recorded in the county clerk lien record pursuant to subsection (D)(2) of this section shall have the same effect and may be enforced as provided in ORS 205.125 and 205.126.

4. At the discretion of the building official, any civil penalty, fine or cost not paid within 60 days from the date of the hearings officer’s decision may be assigned to a collection agency for collection. If a matter is forwarded to a collection agency, an additional fee of up to 25 percent of the amount owing may be added to the amount of the debt in order to recover the cost of collection.

5. In addition to enforcement mechanisms authorized elsewhere in the Marion County Code, failure to pay an administrative civil penalty assessed pursuant to this article shall be grounds for withholding issuance of requested permits, issuance of a stop work order, if applicable, or revocation or suspension of any issued permits or certificates of occupancy. [Ord. 1297 § 2, 2009.]