Chapter 2.50 CODE ENFORCEMENT CODE ENFORCEMENT

The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

“Civil penalty” means any fine, monetary assessment, penalty, or remedy authorized by the code.

“Code” means the Sisters Municipal Code, Sisters Development Code, and any other ordinance, resolution, or enactment of city, or any order, permit, license, approval, or condition authorized by the Sisters Municipal Code, Sisters Development Code, and any other ordinance, resolution or enactment of city.

“Contested case” means a proceeding before a hearings officer arising out of the imposition of a civil penalty or any other matter whereby compliance with the code or a determination of a person’s rights and remedies under the code has been conferred on the hearings officer. As used in this chapter, the term “contested case” does not include the appeal of a land use decision, as defined by ORS 197.015(10) or limited land use decision, as defined by ORS 197.015(12), or any other decision where another appellate body is specifically designated by the code, or by state or federal law.

“Enforcement officer” means an individual described in SMC 2.50.070.

“Enforcement order” means a notice of noncompliance or violation; a notice to cease and desist; a notice to abate; a notice denying, suspending or revoking a license or permit; or any other similar notice denying, suspending or revoking any other right or privilege.

“Hearings officer” means the hearings officer appointed pursuant to SMC 2.50.290, or any other person designated and appointed by the city council as a hearings officer for a particular proceeding or group of proceedings.

“Judge” means any judge of the circuit court, or any justice of the peace, or any city municipal judge.

“Party” or “person” means any individual, corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, government (or an agency or subdivision thereof) or other entity of any kind.

“Peace officer” means a sheriff, constable, marshal, municipal police officer, and/or member of the state police.

“Premises” means any property, portion of a property, group of properties, building, structure, or other location subject to the code.

“Respondent” means the person subject to any notice, enforcement order, citation, hearings officer’s order or decision issued under this chapter or any other document alleging or finding a violation or assessing a civil penalty.

“Responsible person” means any person responsible for curing or remedying a violation. “Responsible person” includes: (1) the person alleged to have committed or authorized the violation and (2) if a violation involves a condition of or on real property, the property owner, any agent of the property owner, and any person occupying or having possession of the property. In any instance where there are two or more responsible persons, such responsible persons shall be jointly and severally liable for the violation regardless of which person actually committed the violation.

“Violation” means any action or failure to act in violation of any provision of the code. [Ord. 524 § 2 (Exh. A), 2022].

2.50.020 Scope.

The provisions of this chapter are intended to establish general procedures which may be used by city for enforcement of the code, including, without limitation, the issuance of enforcement orders and the conduct of contested cases. Notwithstanding anything in the code to the contrary, city may elect to use these general procedures for any violation of the code even if other procedures are prescribed for particular violations. These general procedures are not criminal proceedings. These general procedures are not exclusive, and city may use any other procedure for enforcement authorized by law, including, without limitation, alternative procedures for particular violations set forth in the code, any procedure established by state law, or enforcement through appropriate actions in circuit or justice of the peace courts. The general procedures set forth herein may be used in conjunction with other enforcement actions or procedures. [Ord. 524 § 2 (Exh. A), 2022].

2.50.030 Other authority for enforcement of statutes and rules.

A violation of a statute or administrative rule that is not adopted by the code may be enforced in the manner provided in that statute or rule by a person having lawful authority to enforce such statute or rule. Notwithstanding any other provision in this chapter, a violation of a statute or administrative rule that is defined by that statute or rule as a felony or misdemeanor may be enforced in the manner provided in that statute or rule by a person having lawful authority to enforce such statute or rule. [Ord. 524 § 2 (Exh. A), 2022].

2.50.040 Nature of enforcement prosecution.

A violation of any provision in the code that does not have an enforcement procedure to dispose of such violation is subject to this chapter. If a violation of a provision in the code has an enforcement procedure to dispose of such violation, a prosecution and enforcement action concerning such violation may be brought under the violation specific enforcement procedures or this chapter at city’s election and notwithstanding anything in the code to the contrary. [Ord. 524 § 2 (Exh. A), 2022].

2.50.050 No mental state required.

A culpable mental state is not required to establish a violation unless the mental state is expressly part of the code provision or other requirement alleged to have been violated. [Ord. 524 § 2 (Exh. A), 2022].

2.50.060 Method of enforcement discretionary.

The decision by city to seek enforcement of a particular violation is discretionary. Nothing in the code will be construed to create a duty, enforceable in mandamus or other similar proceeding, on the part of city or any of its officers or agents to enforce any particular violation of the code. [Ord. 524 § 2 (Exh. A), 2022].

2.50.070 Enforcement officers.

Any peace officer, building official, or fire marshal, the city manager, and any other person appointed by the city manager may serve as an enforcement officer. An enforcement officer will have all authority to implement and enforce the code and this chapter, including, without limitation, the authority to issue enforcement orders, impose civil penalties, or grant, deny, suspend or revoke a license or permit. The authority of any enforcement officer may be limited by the city manager to enforcement of specific code violations at any time and from time to time. Notwithstanding anything contained in this section to the contrary, any person with lawful authority, other than by appointment or designation under this section, to enforce code violations under this chapter may enforce the code. [Ord. 524 § 2 (Exh. A), 2022].

2.50.080 Inspection authority.

(1) Any enforcement officer is hereby authorized to make such inspections and take such actions as may be required to enforce the code or other applicable statute or regulation.

(2) Whenever necessary to make an inspection to enforce any of the provisions of the code or other applicable statute or regulation, or whenever an enforcement officer has cause to believe that there exists in any premises any condition or violation which makes the premises a safety or health hazard or danger, the enforcement officer may enter the premises at all reasonable times to inspect the same or to perform any duty imposed upon the enforcement officer by any state statute or regulation, or any code provision relating to safety or health. However, the enforcement officer will first:

(a) Make a reasonable effort to schedule the inspection on a weekday between the hours of 8:00 a.m. and 5:00 p.m. by contacting a responsible person to schedule a mutually agreeable time for the inspection; and

(b) Present proper credentials.

If such entry is refused, the parties cannot agree on a mutually acceptable time for the inspection, the owner and/or occupant is unresponsive, or the enforcement officer is otherwise inhibited from conducting a timely inspection, the enforcement officer may apply for a warrant under this chapter to obtain entry. [Ord. 524 § 2 (Exh. A), 2022].

2.50.090 Enforcement procedure options.

Upon discovery of a violation, the enforcement officer may do any one or combination of the following:

(1) Seek voluntary correction of the violation including, without limitation, entering into voluntary compliance agreements with responsible parties;

(2) Issue an enforcement order;

(3) Request a peace officer to issue a citation; or

(4) Request the city attorney to commence civil proceedings which may include, without limitation, a complaint seeking injunction, mandamus, abatement, receivership, fine, or other appropriate remedy filed in any court of competent jurisdiction. [Ord. 524 § 2 (Exh. A), 2022].

2.50.100 Issuance of warrants.

Any judge may, upon application of any enforcement officer, issue a warrant for inspection, investigation, abatement, or any other lawful purpose of any premises. [Ord. 524 § 2 (Exh. A), 2022].

2.50.110 Grounds for issuance of warrants.

(1) A warrant will be issued only upon a showing of good cause. The warrant must be supported by affidavit. The affidavit will describe, in reasonable particularity, the following:

(a) The premises to be entered;

(b) The statute, regulation, or code provision, requiring or authorizing the entry;

(d) The basis upon which cause exists to inspect; and

(e) That efforts to obtain permission for the entry were made and met with either denial, delay, evasion, or nonresponse.

(2) Good cause for a warrant will be deemed to exist under any of the following circumstances:

(a) If there is probable cause to believe that a violation of a safety or health statute or regulation, or the code, exists with respect to the particular premises;

(b) Entry is reasonably believed to be necessary in order to determine or verify whether there exists a violation of a safety or health statute or regulation, or the code, with respect to the particular premises;

(d) Entry is necessary to enforce an unappealed enforcement order or a decision of the hearings officer; and/or

(e) Such other circumstances as the judge may find appropriate.

(3) If the judge is satisfied that cause for the warrant exists and that the other requirements for granting the application are satisfied, the judge will issue the warrant, particularly describing the name and title of the person or persons authorized to execute the warrant, the premises to be entered, and the purpose of the entry. The warrant will contain a direction on execution of the warrant. [Ord. 524 § 2 (Exh. A), 2022].

2.50.120 Examination of witnesses by judge.

Before issuing a warrant, the judge may examine under oath the applicant and any other witness to be satisfied of the existence of grounds for granting such application. [Ord. 524 § 2 (Exh. A), 2022].

2.50.130 Execution of warrants.

A peace officer may be requested to assist in the execution of the warrant. A warrant must be executed and returned to the judge by whom it was issued within 30 calendar days from the date of issue or such longer time as the judge may permit. Before the expiration of such time, a judge may extend the time for execution. After the expiration of the time prescribed by the judge, the warrant is void unless executed. [Ord. 524 § 2 (Exh. A), 2022].

2.50.140 Refusal of entry when warrant obtained.

When an enforcement officer has obtained a warrant to secure entry to a premises, no owner or occupant or any other persons having charge, care, or control of the subject premises will refuse, fail, or neglect to promptly permit entry therein by the enforcement officer for the purpose of the inspection or investigation. Any refusal, failure or neglect to promptly permit entry under this section is a violation of this chapter. [Ord. 524 § 2 (Exh. A), 2022].

2.50.150 Enforcement by complaint for injunction or other relief.

Notwithstanding any other provision in the code, if city determines that enforcement by means of a complaint for injunction, mandamus, abatement, receivership, fine, or other appropriate remedy would be the most effective manner to proceed, the city manager may direct the city attorney to institute civil action to require compliance with the code and/or penalize the violator. The city attorney may then prosecute such action to judgment and may seek to enforce that judgment by any appropriate legal means. [Ord. 524 § 2 (Exh. A), 2022].

2.50.160 Prosecution of subsequent violations.

The prosecution of one violation or complaint will not bar the subsequent prosecution of additional 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 code violations. Evidence of prior code violations will be admissible, subject to ORS 40.170, as amended, in any subsequent prosecution of any code violation. [Ord. 524 § 2 (Exh. A), 2022].

2.50.170 Court costs.

The court will charge court costs to the violator where the violator admits a violation of a provision of the code, and/or the violator fails to appear for the hearing or, following a hearing, is found to have violated a provision of the code. If the violator fails to pay the costs, the costs will be entered as a judgment against the violator in the same manner and with like effect as a judgment for a fine. [Ord. 524 § 2 (Exh. A), 2022].

2.50.180 Costs and disbursements.

In any venue, city will be entitled to recover all costs and disbursements incurred in the successful prosecution of a violation, including, without limitation, the costs, expenses, salaries, and overhead costs of enforcement officers, employees, attorneys, and witnesses, the expenses of taking depositions, the expense of publication of summons or notices, postage, the costs of any title reports obtained, compensation of expert witnesses, and the expense of copying any public or private record, book or document used as evidence in the trial. The costs and disbursements will be allowed to city in the same manner as a judgment for a fine. City may, within 30 calendar days after judgment, file with the court a signed and detailed statement identifying the amount of the costs and disbursements and will provide a copy of the statement to the violator. The court will award the costs and disbursements unless the court finds the costs or disbursements unreasonable. If the court so finds, the court will award an amount for the costs and disbursements that the court deems reasonable. No findings of fact or conclusions of law will be necessary. [Ord. 524 § 2 (Exh. A), 2022].

2.50.190 Enforcement orders.

A proceeding for enforcement of the code including, without limitation, abatement of nuisances and enforcement of land use regulations, may be initiated by the issuance of an enforcement order. [Ord. 524 § 2 (Exh. A), 2022].

2.50.200 Contents of enforcement order.

An enforcement order will contain:

(1) The person and/or premises subject to the enforcement order;

(2) Reference to the particular code provision that is alleged to have been violated;

(3) A short and plain statement of the matters asserted or charged;

(4) A statement of the action required to remedy the violation;

(5) The date on which the enforcement order was issued and the date and time by which the violation must be corrected;

(6) If a civil penalty is authorized, a statement that a civil penalty may be, will be, or has been, assessed, and the maximum amount of the penalty per day;

(7) A statement of the right to appeal the enforcement order to the hearings officer;

(8) A short and plain statement of the appeal procedure; and

(9) A statement that if a notice of appeal is not filed within the time allowed, the respondent will have waived the right to review of the enforcement order. [Ord. 524 § 2 (Exh. A), 2022].

2.50.210 Validity of enforcement order.

Any enforcement order issued in substantial compliance with SMC 2.50.200 will be valid from and after the date the order is issued. [Ord. 524 § 2 (Exh. A), 2022].

2.50.220 Appeal from enforcement order.

(1) Any person who has been issued an enforcement order may appeal the order to the hearings officer by filing a notice of appeal with the city recorder. The notice of appeal must be in writing and filed within 15 business days after the date notice is delivered to the person or the notice is deemed to have been received by the person.

(2) The notice of appeal shall contain:

(a) The name, address and telephone number of the respondent;

(b) A copy of the enforcement order being appealed; and

(c) The basis for the appeal, stating with specificity why the enforcement order was issued in error, based on one or more of the following:

(i) The enforcement order was issued in violation of, or is inconsistent with, the code;

(ii) The enforcement order is not supported by a factual basis; and/or

(iii) The enforcement order is in violation of other applicable federal, state, or local law.

(3) The notice of appeal must be accompanied by an appeal fee, as established by resolution of the city council. The appeal fee is not refundable unless the hearings officer finds that the enforcement order is not founded in law or fact, in which case the appeal fee will be refunded in full.

(4) The hearing upon the appeal will be limited to the reasons the enforcement order is incorrect, as set forth in the notice of appeal. A notice of appeal that is filed after the period provided for filing an appeal will be dismissed by the hearings officer as untimely. Failure to appeal as provided in this section will be a waiver of all right to review of the enforcement order. [Ord. 524 § 2 (Exh. A), 2022].

2.50.230 Effective dates – Finality.

An enforcement order will be effective upon issuance, and will become final upon expiration of the time for filing a notice of appeal. If an appeal of the enforcement order is timely filed, the enforcement order will become final upon issuance of the hearings officer’s decision affirming the enforcement order. [Ord. 524 § 2 (Exh. A), 2022].

2.50.240 Imposition of civil penalty.

(1) When a provision of the code that provides for the imposition of a civil penalty is violated, the enforcement officer may impose a civil penalty on any responsible person as provided in this section.

(2) The enforcement officer may assess a civil penalty as part of an enforcement order.

(3) The civil penalty imposed pursuant to this section will be in addition to:

(a) Any assessments or fees for any costs incurred by city in remediation, cleanup, or abatement of a nuisance;

(b) Any other costs or fees for which the party is liable under the code;

(c) Any fines, assessments, or other costs imposed in any other actions authorized by federal, state, or local law. [Ord. 524 § 2 (Exh. A), 2022].

2.50.250 Notice of civil penalty.

(1) A notice of civil penalty will include:

(a) A statement of the amount of the penalty;

(b) A statement of the party’s right to appeal the civil penalty to the hearings officer;

(d) A statement that if a notice of appeal is not filed within the time allowed, the respondent will have waived the right to review of the imposition or amount of the civil penalty. [Ord. 524 § 2 (Exh. A), 2022].

2.50.260 Effective date – Finality.

A notice of civil penalty will be effective upon issuance, and will become final upon expiration of the time for filing a notice of appeal. If an appeal of the civil penalty is timely filed, the penalty will become final upon issuance of the hearings officer’s decision affirming the civil penalty. [Ord. 524 § 2 (Exh. A), 2022].

2.50.270 Unpaid civil penalties and other costs to become liens.

If a civil penalty or any other amounts due to city remains unpaid for 30 calendar days after such payment is due, such amounts will be entered in city’s lien docket as a lien against the respondent’s property. The unpaid amount will bear interest at the statutory rate, which will commence from the date of entry in the lien docket, and may be collected or foreclosed as provided by law. Nothing in this chapter shall preclude city from filing a notice of lien in the Deschutes County official records and city and, notwithstanding anything herein to the contrary, city may immediately add any recording costs to the amount of the lien. [Ord. 524 § 2 (Exh. A), 2022].

2.50.280 Appeal from imposition of civil penalty.

(1) Any respondent issued a notice of civil penalty may appeal the imposition or amount of the civil penalty to the hearings officer, by filing a notice of appeal with the city recorder. The notice of appeal must be filed within 15 business days after the date notice is delivered to the respondent or the notice is deemed to have been received.

(2) The notice of appeal shall contain:

(a) The name, address and telephone number of the respondent;

(b) A copy of the notice of civil penalty being appealed; and

(i) Why the imposition of the civil penalty is in error, based on one or more of the following:

(A) The respondent had completed correction of the violation within the time stated for imposition of a penalty in an enforcement order;

(B) The enforcement order was issued in violation of, or is inconsistent with, the code;

(D) The enforcement order is in violation of other applicable federal, state, or local law.

(3) The notice of appeal will be accompanied by an appeal fee, as established by resolution of the city council. The appeal fee is not refundable unless the hearings officer finds that the issuance of the civil penalty is not founded in law or fact, in which case the appeal fee will be refunded in full.

(4) The hearing upon the appeal will be limited to the reasons the imposition or amount of the civil penalty is incorrect, as set forth in the notice of appeal. A notice of appeal that is filed after the period provided for filing an appeal will be dismissed by the hearings officer as untimely. Failure to appeal as provided in this section will be a waiver of all right to review of the imposition or amount of the civil penalty. [Ord. 524 § 2 (Exh. A), 2022].

2.50.290 Office of hearings officer created – Qualifications – Duties and powers.

(1) There is hereby created the position of hearings officer. The city council may appoint one or more persons to serve as hearings officer, who will serve at the pleasure of the city council. The hearings officer will have the authority to hear any matter committed to the hearings officer by the code or referred to the hearings officer by the city council.

(2) Hearings officers will have the power to conduct contested case and other quasi-judicial hearings, to administer oaths or affirmations, to serve as a special master and make findings of fact in matters referred by the city council, to prepare a record of proceedings, to make findings of fact and conclusions of law in all proceedings heard by the hearings officer, and to such other actions as necessary to accomplish the objectives of this chapter or the provisions of the code applicable to the matter before the hearings officer. [Ord. 524 § 2 (Exh. A), 2022].

2.50.300 Adoption of rules for contested case proceedings.

The hearings officer may adopt rules, procedures, and forms not inconsistent with this chapter to govern the procedure and the conduct of contested case hearings. All rules will be effective upon adoption by the hearings officer. All rules will be filed with the city recorder, and will be made available to the public upon request. [Ord. 524 § 2 (Exh. A), 2022].

2.50.310 Setting hearings.

Upon the filing of a notice of appeal, the hearings officer will set a date, time, and location for the hearing. The date will be not less than 20 business days or more than 60 business days after the date the notice of appeal is filed. Notwithstanding the foregoing, the hearings officer may authorize a shorter period when it appears that the alleged violation poses an imminent hazard to public health, safety, or welfare. The hearings officer may postpone, continue, or reschedule any hearing with the consent of all parties or on the motion of any party for good cause shown. [Ord. 524 § 2 (Exh. A), 2022].

2.50.320 Notice of hearing.

(1) The hearings officer will send a notice of the hearing, together with a true copy of the notice of appeal, to all parties not less than 20 business days prior to the date set for hearing. If the hearings officer sooner scheduled a hearing because it appears that the alleged violation poses an imminent hazard to public health, safety, or welfare, then such notice will be sent as soon as practical but no less than five business days prior to the date set for the hearing. The notice of hearing will specify the date, time, and location of the hearing.

(2) Notice of the hearing will also be provided to:

(a) The tenants, residents and lessees of any building or structure if the hearings officer’s decision or order could result in the vacation, closure, or demolition of a building or structure;

(b) Any other person who has an interest in property, as reflected in the county deed records, that would be adversely affected by the hearings officer’s decision or order;

(3) The failure of any person to receive actual notice of the hearing will not invalidate any decision or order of the hearings officer. [Ord. 524 § 2 (Exh. A), 2022].

2.50.330 Stay of enforcement order.

(1) Unless otherwise provided by law, any respondent who timely files a notice of appeal may file a request to stay the enforcement order with the hearings officer.

(2) The request to stay shall contain:

(a) The name, address and telephone number of the respondent;

(b) A copy of the enforcement order being appealed;

(d) If the respondent is represented by an attorney, the name, address and telephone number of the attorney; and

(e) A statement of facts making a showing that:

(i) The respondent will suffer irreparable injury if the stay is not granted;

(ii) There is a reasonable basis to claim that the enforcement order was issued in error; and

(iii) Granting the stay will not result in substantial public harm.

(3) The request must be delivered to the enforcement officer and any other party identified in the request at the same time the request is filed with the hearings officer.

(4) The hearings officer may conduct further proceedings pertaining to the request for stay, including taking further evidence. The enforcement officer may present additional evidence in response to the request for a stay.

(5) The hearings officer will issue an order granting or denying the request for stay within 15 calendar days after receipt. The hearings officer will:

(a) Grant the stay upon finding of irreparable injury to the respondent and the existence of a reasonable basis for the claim that the enforcement order was issued in error. The hearings officer may impose reasonable conditions upon the stay, including, but not limited to, posting of a bond, irrevocable letter of credit, or other undertaking;

(b) Deny the stay upon a finding that the respondent failed to show irreparable injury or failed to show the existence of a reasonable basis for the claim that the enforcement order was issued in error; or

(c) Deny the stay upon a finding that substantial public harm would result from granting the stay, notwithstanding the respondent’s showing of irreparable injury and showing of the existence of a reasonable basis for the claim that the enforcement order was issued in error. [Ord. 524 § 2 (Exh. A), 2022].

2.50.340 Informal resolution.

(1) Unless precluded by law, informal disposition of any contested case may be made, with or without a hearing, by stipulation, agreed settlement, or consent order; provided, however, after issuance of a notice of hearing, no building occupied as a residential structure may be vacated based on an informal disposition, unless approved by the hearings officer.

(2) Any informal disposition of a contested case must be in writing and signed by the party or parties. The hearings officer will incorporate that disposition into a final order. The hearings officer will deliver or mail a copy of the order to each party, or, if applicable, to the party’s attorney of record. An order that incorporates an informal disposition is a final order in a contested case, but is not subject to judicial review. [Ord. 524 § 2 (Exh. A), 2022].

2.50.350 Subpoenas.

(1) The hearings officer may issue subpoenas to any party upon a showing of general relevance and reasonable scope of the evidence sought. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of city, will receive fees and mileage as provided in ORS 44.415.

(2) If any person fails to comply with any subpoena or any party or witness refuses to testify on any matters on which the party or witness may be lawfully interrogated, any judge, on the application of the hearings officer, may compel obedience by proceedings for contempt as in the case of disobedience of the requirements of a subpoena issued from such court or a refusal to testify therein. [Ord. 524 § 2 (Exh. A), 2022].

2.50.360 Discovery.

(1) Production of Documents and Things. Upon written request by the respondent or the enforcement officer, and a showing of the general relevance, the hearings officer will enter an order directing the other party to provide a list of witnesses, grant permission to enter upon land to inspect the land or other property, and any books, papers, documents, photographs, or tangible objects which the party intends to offer into evidence at hearing. Before requesting a discovery order, the party must seek discovery through an informal exchange of information.

(a) All discovery requests will be made not less than 15 business days prior to the hearing. All discovery will be provided not less than eight business days prior to the hearing.

(b) Failure to provide requested discovery will prevent the introduction of such evidence, unless the party can demonstrate good cause why the discovery was not provided.

(2) The hearings officer’s order may require the party requesting discovery to pay the reasonable costs associated with producing the discovery.

(3) Nothing in this section will require the production of any documents subject to any privilege recognized under the Oregon Evidence Code, including, without limitation, documents subject to attorney-client privilege, or require the production of a document that is exempt from disclosure under Oregon Public Records Law.

(4) Depositions. On petition of any party, the hearings officer may order the testimony of any material witness be taken by deposition in the manner prescribed by law for depositions in civil actions or by the use of audio or audio-visual recordings. The petition will set forth the name and address of the witness whose testimony is desired, a showing of the materiality of the testimony of the witness, an explanation of why a deposition rather than informal or other means of discovery is necessary, and a request for an order that the testimony of such witness be taken before an officer named in the petition for that purpose. If the witness resides within the state and is unwilling to appear, the hearings officer may issue a subpoena to require the person’s appearance at the deposition. Unless expressly provided by law or expressly agreed upon by the enforcement officer, a hearings officer may not authorize a party to take a deposition that is to be paid for by city. The cost of a deposition will be borne by the party seeking to take the deposition. [Ord. 524 § 2 (Exh. A), 2022].

2.50.370 Late filing of documents.

Unless otherwise provided by law, when a party or enforcement authority fails to file any document in a contested case proceeding, other than a notice of appeal, within the time specified for filing such document, the late filing may be accepted if the hearings officer, upon written explanation of the reason for the late filing, determines that there was good cause for failure to file the document within the required time. [Ord. 524 § 2 (Exh. A), 2022].

2.50.380 Prehearing notice.

(1) Prior to the commencement of a contested case hearing, the hearings officer will inform each party, either orally or in writing, of the following:

(a) A general description of the hearing procedure;

(b) That a record will be made of the proceedings, the manner of making the record, and its availability to the parties;

(d) That city may be represented by an attorney;

(e) That the hearings officer will preside over the hearing and will make a final decision, and that the hearings officer has the authority to make a final independent determination on the merits;

(f) That a party may, during the course of the proceedings, request a recess if the party determines representation by an attorney is necessary for the protection of the party’s rights; and

(g) A description of the process for judicial review of the hearings officer’s decision.

(2) The failure to give notice of any item specified in subsection (1) of this section will not invalidate any order of the hearings officer unless, upon judicial review, a court finds that the failure prejudiced the substantial rights of the party. In the event of such a finding, the court will remand the matter to the hearings officer, who will reopen the hearing and take whatever steps are necessary to remedy any prejudice to the rights of the party. [Ord. 524 § 2 (Exh. A), 2022].

2.50.390 Hearings procedure.

(1) The contested case hearing will be conducted, subject to the discretion of the hearings officer, as follows:

(a) Opening statements of the parties or the parties’ legal counsel;

(b) The evidence of the party with the initial burden of proof in support of its action;

(d) Any rebuttal evidence; and

(e) Any closing arguments.

(2) The hearings officer, the enforcement officer, the respondent, and legal counsel for the parties may question witnesses.

(3) Parties may be represented by counsel, who may respond to and present evidence and argument on all issues involved in the hearing.

(4) Exhibits will be marked, numbered and maintained by the hearings officer as part of the record of the proceedings.

(5) The hearings officer may request that any closing arguments be submitted in writing or be made orally. [Ord. 524 § 2 (Exh. A), 2022].

2.50.400 Rules of evidence.

The following rules of evidence will apply in contested case proceedings:

(1) Oregon Evidence Code Inapplicable. Except as otherwise specifically provided herein, the technical rules relating to evidence and witnesses set forth in the Oregon Evidence Code will not apply in contested case proceedings.

(2) Witnesses and Evidence. Each party will have the right to:

(a) Call and examine witnesses on any matter relevant to the issues of the hearing;

(b) Introduce documentary and physical evidence;

(d) Present rebuttal evidence; and

(e) Be represented by anyone who is lawfully permitted to do so.

(3) Admissibility of Evidence. Any relevant evidence may be received which is of the type that a reasonably prudent person would rely on in the conduct of his serious affairs. Relevant evidence means evidence having any tendency to make the existence or nonexistence of any fact that is of consequence to the appeal more probable or less probable than it would be without the evidence.

(4) Testimony on Oath or Affirmation. Testimony will be taken upon oath or affirmation, which may be administered by the hearings officer.

(5) Burden of Proof. The burden of proof will be by a preponderance of the evidence, and the initial burden of proof will be as follows:

(a) In an appeal from the issuance of an enforcement order, city will have the burden of proving the reasons why the enforcement order was properly issued.

(b) In an appeal from the imposition or the amount of a civil penalty, city will have the burden of proving the imposition, or the amount, of the civil penalty was correct.

(c) In an appeal from the denial of an issuance or renewal of a license or permit, the applicant for the license or permit will have the burden of proving entitlement to the license or permit, or renewal thereof.

(d) In an appeal from the revocation or suspension of a license or permit, city will have the burden of proving that the revocation or suspension was proper.

(6) Burden of Production. The burden of presenting evidence to support a fact or proposition rests with the proponent of the fact or proposition.

(7) Exclusion of Evidence. Irrelevant or unduly repetitious evidence may be excluded.

(8) Privileges. Privileges afforded by state law will be recognized by the hearings officer.

(9) Objections. 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 will do so either on the record before a final order is issued or in the final order. The hearings officer will accept an offer of proof made for excluded evidence, which will contain sufficient detail to allow the reviewing court to determine whether the evidence was properly excluded. The hearings officer may direct that the offer be oral or written and at what stage in the proceeding it can be made, and may premise reasonable limits on the offer of proof, including time devoted to an oral offer or number of pages in a written offer.

(10) Ex Parte Communications.

(a) An ex parte communication is an oral or written communication outside of the contested case proceeding, and without the knowledge or consent of other parties or the parties’ legal counsel, made directly or indirectly to the hearings officer that relates to a legal or factual issue in the pending contested case proceeding. Ex parte communications to the hearings officer are prohibited.

(b) If an ex parte oral or written communication occurs with the hearings officer, the hearings officer will disclose the existence and substance of the ex parte contact on the record, and will not consider the substance of the ex parte contact as part of the hearings officer’s decision-making process.

(11) Official Notice.

(a) Official notice may be taken, either before or after the submission of a case for decision, of official records, statutes, administrative rules and regulations, and ordinances.

(b) Official notice may be taken of general, technical, or scientific facts within the knowledge of the hearings officer, provided the parties are informed of the hearings officer’s intent to take official notice and the parties are given the opportunity to present rebuttal evidence. If rebuttal evidence is presented, the hearings officer will rule in the final order on whether the facts are to be considered evidence in the proceeding.

(12) Inspection of Premises. The hearings officer may inspect any building or premises involved in the proceeding; provided, that notice of the inspection is given to the parties prior to the time the inspection is made, all parties have an opportunity to be present at the inspection, and material facts observed and conclusions drawn from such observation are stated for the record at the time of the completion of the inspection. [Ord. 524 § 2 (Exh. A), 2022].

2.50.410 Transmittal of questions to the enforcement officer.

The hearings officer may submit questions regarding the enforcement officer’s interpretation of the applicable provisions of the code, transmitted in writing to the enforcement officer. The submission will include a summary of the matter in which the question arises and will be served on the enforcement officer and the respondent. [Ord. 524 § 2 (Exh. A), 2022].

2.50.420 Exclusion of witnesses – Removal of disruptive individuals.

The hearings officer may exclude witnesses from the hearing, except for a party, a party’s authorized representative, and/or the enforcement officer. A hearings officer may expel any person from the contested case hearing if that person engages in conduct that disrupts the hearing. [Ord. 524 § 2 (Exh. A), 2022].

2.50.430 Record.

(1) The record in a contested case will include:

(a) All pleadings and intermediate rulings;

(b) Evidence and testimony received;

(d) A statement of matters officially noticed;

(e) Questions and offers of proof, objections and rulings thereon;

(f) Proposed findings and exceptions; and

(g) Any proposed order, and the final order prepared by the hearings officer.

(2) A tape recording or other electronic recording will be made of all testimony. The recording need not be transcribed unless requested for purposes of rehearing or judicial review. The party requesting transcription will be charged the cost of transcription. [Ord. 524 § 2 (Exh. A), 2022].

2.50.440 Final order.

(1) The hearings officer will issue a final order within 60 calendar days after the close of the hearing. Every final order will be in writing.

(2) Unless otherwise stipulated by the parties, a final order will be accompanied by findings of fact and conclusions of law. The findings of fact will consist of a concise statement of the underlying facts supporting the findings as to each contested issue and as to each ultimate fact required to support the final order. The findings of fact and conclusions of law may be orally stated on the record by the hearings officer and those findings and conclusions incorporated in the written order by reference.

(3) The hearings officer will deliver a copy of the final order and any accompanying findings and conclusions to each party, or, if applicable, to the party’s attorney of record.

(4) Every final order will include a citation to the statutes under which the order may be subject to judicial review. [Ord. 524 § 2 (Exh. A), 2022].

2.50.450 Default – Requests to set aside default.

(1) The hearings officer will issue a final order by default when a party fails to appear at the time and premises set for the hearing. The hearings officer may issue a final order by default only upon a prima facie case made by the enforcement officer on the record. The hearings officer will deliver a copy of the order to each party and, if applicable, to a party’s attorney of record.

(2) The hearings officer may grant a request to set aside an order of default, if such request is filed with the hearings officer no later than 60 calendar days after the entry of the final order of default and the party demonstrates by clear and convincing evidence that the cause for failure to appear at the hearing was beyond the party’s reasonable control. In determining whether to grant a request to set aside a default under this subsection, the hearings officer may conduct such further inquiry into the reasons for the party’s failure to appear as the hearings officer deems appropriate.

(3) If the request to set aside the default is granted, the hearings officer will enter an order granting the request and set the matter for hearing. If the request is denied, the hearings officer will enter an order setting forth the reasons for the denial. [Ord. 524 § 2 (Exh. A), 2022].

2.50.460 Reconsideration or rehearing.

(1) A party may file a petition for reconsideration or rehearing within 30 calendar days after the final order was mailed. A copy of the petition will also be served on all parties to the proceeding within such 30-day period. The petition may be granted or denied by summary order and, if no action is taken, will be deemed denied.

(2) The petition will set forth the specific grounds for reconsideration, and may be supported by a written argument. If the petitioner establishes good and sufficient reason for reconsideration, the hearings officer will issue an order for rehearing.

(3) If the hearings officer determines there are good and sufficient reasons for rehearing, the hearings officer will decide the scope of the rehearing. The hearings officer may limit the scope of the rehearing to specific issues and may issue a new or amended final order, or reaffirm the original final order.

(4) The hearings officer at any time and upon a showing of due diligence, may set aside, modify, reverse, vacate, or stay any final order, or reopen any proceeding for additional hearing, when necessary to prevent a clear and manifest injustice to a party or other person adversely affected by such order. [Ord. 524 § 2 (Exh. A), 2022].

2.50.470 Remedies.

(1) On review, the hearings officer may affirm, set aside, modify, reverse, or vacate the decision or determination appealed from or remand the decision or determination to the enforcement officer for such reconsideration, additional consideration, or further action as the hearings officer may direct. The hearings officer may issue an order to the respondent found in violation of any applicable provision of the code to comply with the applicable provision, within such time as the hearings officer may by order allow. By way of illustration, but not limitation, the order may require such party to do any or all of the following:

(a) Make all necessary repairs, modifications, and/or improvements to any structure, real property, or equipment involved;

(b) Abate or remove any nuisance;

(d) Install any equipment necessary to achieve compliance;

(e) Order a building or structure vacated or demolished, when it reasonably appears that such measures are required to protect public health, safety, or welfare and direct that the property owner undertake any and all interim measures, as may be necessary to protect public health, safety, or welfare;

(f) Pay a civil penalty of up to $2,000 per day that the violation continues; provided, however, that if there is a violation of any code provision identical to a state statute with a lesser penalty attaching, punishment will be limited to the lesser penalty prescribed under state law; and/or

(g) Undertake any other action reasonably necessary to correct the violation or mitigate the effects thereof.

(2) Assessments.

(a) A notice and statement of costs incurred by city and civil penalties assessed under this section to a responsible person will be delivered to the respondent.

(b) The notice and statement of costs will contain:

(i) An itemized statement of costs incurred by city;

(ii) If a civil penalty was assessed, a statement of the amount of the penalty per day;

(iii) A statement of the right to file objections to the amount of costs with the hearings officer; and

(iv) A statement that if no objections are filed to the notice and statement of costs within the time allowed, the respondent will have waived the right to review of the notice and statement of costs.

(3) The enforcement officer will serve a copy of the notice and statement of costs with the hearings officer along with the respondent. If no objection to such statement is filed by the respondent with the hearings officer within 15 business days after the date notice is delivered to the respondent or the notice is deemed to have been received by the respondent, the hearings officer will certify such statement and forward the same to the finance director, who will forthwith enter the same in city’s lien docket subject to SMC 2.50.270.

(a) If an objection to the notice and statement of costs is received within the 15-day period, the hearings officer will schedule and hold a hearing on the objection. The hearing will be limited to whether the costs incurred by city were correct, proper and reasonable, or whether the civil penalty was correctly calculated.

(b) After the hearing, the hearings officer will certify the costs, or such part of the costs as the hearings officer determines were correct, proper and reasonable, and forward it to the finance director who will enter it into city’s lien docket subject to SMC 2.50.270. The hearings officer will also certify to the finance director the correct amount of any civil penalty imposed, and the finance director will enter the civil penalty into city’s lien docket subject to SMC 2.50.270.

(d) In addition to the lien imposed under this section, any person found to be in violation of the code will be personally liable for costs incurred by city pursuant to subsection (1) of this section, and for any civil penalty imposed by the hearings officer. [Ord. 524 § 2 (Exh. A), 2022].

2.50.480 Appeal of hearings officer’s decision or order.

Appeal of a final decision, order, or civil penalty of the hearings officer will be by writ of review to the Circuit Court of Deschutes County, Oregon, as provided in ORS 34.010 through 34.100, and not otherwise. [Ord. 524 § 2 (Exh. A), 2022].

2.50.490 Enforcement.

Violation of any decision or order of the hearings officer or any code enforcement officer is a violation of this chapter punishable by a civil penalty of no less than $250.00 but not to exceed $2,000. Each separate violation and each day a violation persists constitutes a separate offense. In addition to any other remedies, city may institute appropriate suit or legal action in any court of competent jurisdiction to enforce the provisions of any decision or order of the hearings officer or any code enforcement officer. [Ord. 524 § 2 (Exh. A), 2022].

2.50.500 Notice – Service – Computation of time.

(1) Notice or service of any document required or permitted under this chapter may be given by any method or combination of methods which, under the circumstances, is reasonably likely to apprise the parties, including, without limitation:

(a) By personal service;

(b) By first class, certified, or registered mail to the last known address of the party, to the residence or business address of the respondent as set forth in the notice of appeal, and to the enforcement officer at the enforcement officer’s business address. The notice will be deemed received three business days after the date mailed if sent to an address within the state, and seven business days after the date mailed if sent to an address outside the state;

(d) By any method authorized by the Oregon Rules of Civil Procedure for the service of summons.

(2) Any notice or document served by mail will be deemed received three business days after the date mailed if sent to an address within the state, and seven business days after the date mailed if sent to an address outside the state. Refusal to accept the registered or certified mail will not be deemed to, and will not, render the notice invalid.

(3) If the deadline to provide notice, deliver a document, or perform any other act under this chapter falls on a weekend or federal or state holiday, the deadline will be extended to the next week day that is not a federal or state holiday. [Ord. 524 § 2 (Exh. A), 2022].