Chapter 4.10 ADMINISTRATIVE CODE ENFORCEMENT PROCEDURES

Any condition caused, maintained, or permitted to exist in violation of any provisions of the city code or applicable state codes that constitutes a violation may be abated by the city pursuant to the procedures set forth in this chapter. [Ord. O-05-2013 (Exh. A)].

4.10.020 Notice of violation.

A. Whenever the enforcement officer determines that a violation of the city code or applicable state codes has occurred or continues to exist, the enforcement officer may choose to proceed under the administrative abatement procedures. If this procedure is used, a notice of violation shall be issued to a responsible person. The notice of violation shall include the following information:

1. Name of property owner;

2. Street address of violation;

3. Date violation observed;

4. All code sections violated and description of condition of the property that violates the applicable codes;

5. A statement explaining the type of remedial action required to permanently correct outstanding violations, which may include corrections, repairs, demolition, removal, or other appropriate action;

6. Specific date to correct the violations listed in the notice of violation, which date shall be at least 10 days from the date of service;

7. Explanation of the consequences should the responsible person fail to comply with the terms and deadlines as prescribed in the notice of violation, which may include, but are not limited to, criminal prosecution, civil penalties, revocation of permits, recordation of the notice of violation, withholding of future municipal permits, abatement of the violation, costs, administrative fees, and any other legal remedies;

8. That civil penalties will begin to accrue immediately on expiration of the date to correct violations;

9. The amount of the civil penalty on each violation and that the penalty will accrue daily until the property is brought into compliance;

10. That only one notice of violation is required for any 12-month period, and that civil penalties begin immediately upon any subsequent violations of the notice. The responsible person may request a hearing on the renewed violations by following the same procedure as provided for in the original notice;

11. The following procedure to request a hearing: The request for hearing shall be made in writing and filed with the administrative law judge within 10 calendar days from the date of service. The request shall contain the case number, the address of the violation, and the signature of the responsible party;

12. The consequences for failure to request a hearing, including that failure to request a hearing as provided shall constitute a waiver of the right to a hearing and a waiver of the right to challenge the action.

B. The notice of violation shall be served by one of the methods of service listed in EMMC 4.05.120.

C. More than one notice of violation may be issued against the same responsible person, if it encompasses different dates, or different violations. For a notice of violation related to weeds, the enforcement officer is not required to make more than one notice for each annual season of weed growth for weeds growing on a property. [Ord. O-05-2013 (Exh. A)].

4.10.030 Failure to bring property into compliance.

If a responsible person fails to bring a violation into compliance prior to the date to correct the violations set forth in the notice of violation, civil penalties shall be owed to the city for each and every subsequent day of violation. [Ord. O-05-2013 (Exh. A)].

4.10.040 Inspections.

It shall be the duty of the responsible person served with a notice of violation to request an inspection when his or her property has been brought into compliance. It is prima facie evidence that the violation remains on the property if no inspection is requested. Civil penalties accumulate daily until the property has been inspected and a notice of compliance is issued. Reinspection fees shall be assessed if more than one inspection is necessary. [Ord. O-05-2013 (Exh. A)].

Article II. Emergency Abatement

4.10.050 Authority.

A. Whenever the enforcement officer determines that an imminent life safety hazard exists that requires immediate correction or elimination, the enforcement officer may exercise the following powers without prior notice to the responsible person:

1. Order the immediate vacation of any tenants, and prohibit occupancy until all repairs are completed;

2. Post the premises as unsafe, substandard, or dangerous;

3. Board, fence, or secure the building or site;

4. Raze and grade that portion of the building or site to prevent further collapse, and remove any hazard to the general public;

5. Make any minimal emergency repairs as necessary to eliminate any imminent life safety hazard; or

6. Take any other action appropriate to eliminate the emergency.

B. The enforcement officer has the authority, based on cause, to enter the property without a search warrant or court order to accomplish the above listed acts to abate the safety hazard.

C. The responsible person shall be liable for all costs associated with the abatement of the life safety hazard. Costs may be recovered pursuant to this title. [Ord. O-05-2013 (Exh. A)].

4.10.060 Procedures.

A. The enforcement officer shall pursue only the minimum level of correction or abatement as necessary to eliminate the immediacy of the hazard. Costs incurred by the city during the emergency abatement process shall be assessed and recovered against the responsible person through the procedures outlined in the remedies section of this title.

B. The enforcement officer may also pursue any other administrative or judicial remedy to abate any remaining violations. [Ord. O-05-2013 (Exh. A)].

4.10.070 Notice of emergency abatement.

After an emergency abatement, the city shall notify the owner or responsible person of the abatement action taken. This notice shall be served within 10 days of completion of the abatement. [Ord. O-05-2013 (Exh. A)].

Article III. Demolitions

4.10.080 Authority.

Whenever the enforcement officer, chief building inspector or fire marshal determines that a property or building requires demolition, any one of them may demolish or remove the offending structure, or exercise any or all of the powers listed in EMMC 4.10.050 once appropriate notice has been given to a responsible person pursuant to the Uniform Abatement of Dangerous Buildings Code or Uniform Fire Codes as required under state law. The responsible person shall be liable for all costs associated with the demolition. Costs may be recovered pursuant to this title. [Ord. O-05-2013 (Exh. A)].

4.10.090 Procedures.

Once the enforcement officer has determined that the chief building inspector or the fire marshal has complied with all of the notice requirements of the applicable laws, the property will be abated pursuant to the abatement remedy. Other applicable remedies may also be pursued. [Ord. O-05-2013 (Exh. A)].

Article IV. Administrative Citations

4.10.100 Declaration of purpose.

The city council finds that there is a need for an alternative method of enforcement for minor violations of the city code and applicable state codes. The city council further finds that an appropriate method of enforcement is an administrative citation program.

The procedures established in this chapter shall be in addition to criminal, civil, or any other legal remedy established by law that may be pursued to address violations of the city code or applicable state codes. [Ord. O-05-2013 (Exh. A)].

4.10.110 Authority.

A. Any person violating any minor provision of the city code or applicable state codes may be issued an administrative citation by an enforcement officer as provided in this chapter.

B. A civil penalty shall be assessed by means of an administrative citation issued by the enforcement officer, and shall be payable directly to the city treasurer’s office.

C. Penalties assessed by means of an administrative citation shall be collected in accordance with the procedures specified in the remedies section of this title. [Ord. O-05-2013 (Exh. A)].

4.10.120 Procedures.

A. Upon discovering any violation of the city code or applicable state codes an enforcement officer may issue an administrative citation to a responsible person in the manner prescribed in this chapter or as prescribed in EMMC 4.05.120. The administrative citation shall be issued on a form approved by the administrative law judge.

B. If the responsible person is a business, the enforcement officer shall attempt to locate the business owner and issue an administrative citation to the business owner. If the enforcement officer can only locate the manager of the business, the administrative citation may be given to the manager of the business. A copy of the administrative citation may also be mailed to the business owner or any other responsible person in the manner prescribed in EMMC 4.05.120.

C. Once the responsible person has been located, the enforcement officer shall attempt to obtain the signature of that person on the administrative citation. If the responsible person refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation and subsequent proceedings.

D. If the enforcement officer is unable to locate the responsible person for the violation, then the administrative citation shall be mailed to the responsible person in the manner prescribed in EMMC 4.05.120.

E. If no one can be located at the property, then the administrative citation may be posted in a conspicuous place on or near the property and a copy subsequently mailed to the responsible person in the manner prescribed by EMMC 4.05.120.

F. The administrative citation shall also contain the signature of the enforcement officer.

G. The failure of any person with an interest in the property to receive notice shall not affect the validity of any proceedings taken under this chapter. [Ord. O-05-2013 (Exh. A)].

4.10.130 Contents of administrative citation.

A. The administrative citation shall refer to the date and location of the violations and the approximate time the violations were observed.

B. The administrative citation shall refer to the code sections violated and the titles of those sections.

C. The administrative citation shall state the amount of penalty imposed for the violations.

D. The administrative citation shall explain how the penalty shall be paid, the time period by which the penalty shall be paid, and the consequences of failure to pay the penalty.

E. The administrative citation shall identify the right and the procedures to request a hearing.

F. The citation shall contain the signature of the enforcement officer and the signature of the responsible person, if he or she can be located, as outlined in EMMC 4.10.120. [Ord. O-05-2013 (Exh. A)].

4.10.140 Civil penalties assessed.

A. The administrative law judge shall establish policies to assist in the assessment of civil penalties for administrative citations.

B. Civil penalties shall be assessed immediately for each violation listed on the administrative citation at the rate established in the Eagle Mountain City consolidated fee schedule.

C. Payment of the penalty shall not excuse the failure to correct the violations, nor shall it bar further enforcement action by the city. [Ord. O-05-2013 (Exh. A)].

Article V. Administrative Code Enforcement Hearing Procedures

4.10.150 Declaration of purpose.

The city council finds that there is a need to establish uniform procedures for administrative code enforcement hearings conducted pursuant to the city code. It is the purpose and intent of the city council to afford due process of law to any person who is directly affected by an administrative action. Due process of law includes notice, an opportunity to participate in the administrative hearing, and an explanation of the reasons justifying the administrative action. These procedures are also intended to establish a forum to efficiently, expeditiously, and fairly resolve issues raised in any administrative code enforcement action. [Ord. O-05-2013 (Exh. A)].

4.10.160 Authority and scope of hearings.

Enforcement of city code violations may be conducted through the administrative code enforcement hearing program, presided over by the administrative law judge. The administrative law judge shall develop policies and procedures to regulate the hearing process for any violation of the city code and applicable state codes that are handled pursuant to the administrative abatement procedures, the emergency abatement procedures, the demolition procedures, or the administrative citation procedures. [Ord. O-05-2013 (Exh. A)].

4.10.170 Request for administrative code enforcement hearing.

A. A person served with one of the following documents or notices has the right to request an administrative code enforcement hearing, if the request is filed within 10 calendar days from the date of service of one of the following notices:

1. Notice of violation;

2. Notice of itemized bill for costs;

3. Administrative citation; or

4. Notice of emergency abatement.

B. The request for hearing shall be made in writing and filed with the administrative law judge. The request shall contain the case number, the address of the violation, and the signature of the responsible party.

C. As soon as practicable after receiving the written notice of the request for hearing, the administrative law judge shall schedule a date, time, and place for the hearing.

D. Failure to request a hearing as provided shall constitute a waiver of the right to a hearing and a waiver of the right to challenge the action. [Ord. O-05-2013 (Exh. A)].

4.10.180 Default hearings and orders.

A. If the responsible person fails to request a hearing before the expiration of the 10-day deadline the case shall be set for a default hearing. The administrative law judge shall schedule a default hearing. The responsible person shall be notified of the date, time, and place of the hearing by one of the methods listed in EMMC 4.05.120.

B. A default hearing shall be scheduled for all cases that have outstanding or unpaid civil penalties, fines, fees and/or costs due to the city before collection, if a hearing on that case has not already been held.

C. At the default hearing, the responsible person shall have the opportunity to present evidence to show that good cause exists, as defined in this title, to do one or more of the following:

1. Waive or reduce the fines which have accumulated;

2. Postpone an abatement action by the city; or

3. Excuse the responsible person’s failure to request a hearing within the 10-day period.

D. If the responsible person fails to establish good cause to take one or more of the actions set forth in subsection C of this section, the administrative law judge shall review the notice of violation and any other relevant information included in the case file. The administrative law judge shall not accept any other evidence.

1. If the evidence shows that the violations existed, the administrative law judge shall enter an order requiring abatement of the violations, and the payment of all fines and fees. Fines shall run until the city issues a notice of compliance stating when the violations were actually abated. [Ord. O-05-2013 (Exh. A)].

4.10.190 Notification of administrative code enforcement hearing.

A. Written notice of the day, time, and place of the hearing shall be served to a responsible person as soon as practicable prior to the date of the hearing.

B. The format and contents of the hearing notice shall be in accordance with rules and policies promulgated by the administrative law judge.

C. The notice of hearing shall be served by any of the methods of service listed in EMMC 4.05.120. [Ord. O-05-2013 (Exh. A)].

4.10.200 Disqualification of administrative law judge.

The administrative law judge is subject to disqualification for bias, prejudice, interest, or any other reason for which a judge may be disqualified in a court of law. Rules and procedures for disqualification and replacement shall be promulgated by the administrative law judge. [Ord. O-05-2013 (Exh. A)].

4.10.210 Powers of the administrative law judge.

A. The administrative law judge has the authority to hold hearings, determine if violations of city ordinances exist, order compliance with city ordinances, and enforce compliance as provided in this title on any matter subject to the provisions of this title.

B. The administrative law judge may continue a hearing based on good cause shown by one of the parties to the hearing. The administrative law judge must enter on the record the good cause on which a continuance is granted.

C. The administrative law judge, at the request of any party to the hearing, may sign subpoenas for witnesses, documents, and other evidence where the attendance of the witness for the admission of evidence is deemed necessary to decide the issues at the hearing. All costs related to the subpoena, including witness and mileage fees, shall be borne by the party requesting the subpoena. The administrative law judge shall develop policies and procedures relating to the issuance of subpoenas in administrative code enforcement hearings, including the form of the subpoena and related costs.

D. The administrative law judge has continuing jurisdiction over the subject matter of an administrative code enforcement hearing for the purposes of granting a continuance; ordering compliance by issuing an administrative code enforcement order using any remedies available under the law; ensuring compliance of that order, which includes the right to authorize the city to enter and abate a violation; modifying an administrative code enforcement order; or, where extraordinary circumstances exist, granting a new hearing.

E. The administrative law judge has the authority to require a responsible person to post a code enforcement performance bond to ensure compliance with an administrative code enforcement order. [Ord. O-05-2013 (Exh. A)].

4.10.220 Procedures at administrative code enforcement hearing.

A. Administrative code enforcement hearings are intended to be informal in nature. Formal rules of evidence and discovery do not apply; however, an informal exchange of discovery may be required. The request must be in writing. Failure to request discovery shall not be a basis for a continuance. Complainant information is protected and shall not be released unless the complainant is a witness at the hearing. The procedure and format of the administrative hearing shall follow the procedures promulgated by the administrative law judge.

B. The city bears the burden of proof at an administrative code enforcement hearing to establish the existence of a violation of the city code or applicable state codes.

C. The standard of proof to be used by the administrative law judge in deciding the issues at an administrative hearing is whether the preponderance of the evidence shows that the violations exist.

D. Each party shall have the opportunity to cross-examine witnesses and present evidence in support of his or her case. A written declaration signed under penalty of perjury may be accepted in lieu of a personal appearance. Testimony may be given by telephone or other electronic means.

E. All hearings are open to the public. They shall be recorded by audio tape. Hearings may be held at the location of the violation.

F. The responsible person may appear in person, through an officer, agent, or attorney, to introduce evidence on the responsible person’s behalf. Any oral or documentary evidence may be received, but all privileged, irrelevant, immaterial, or unduly repetitious evidence may be excluded at the discretion of the administrative law judge. If an attorney will be representing the responsible person at the hearing, notice of the attorney’s name, address, and telephone number must be given to the city at least one day prior to the hearing. If notice is not given, the hearing may be continued at the city’s request, and all costs of the continuance assessed to the responsible person.

G. No new hearing shall be granted, unless the administrative law judge determines that extraordinary circumstances exist which justify a new hearing. [Ord. O-05-2013 (Exh. A)].

4.10.230 Failure to attend administrative code enforcement hearing.

Any party whose property or actions are the subject of any administrative code enforcement hearing and who fails to appear at the hearing is deemed to waive the right to a hearing, and will result in a default judgment for the city; provided, that proper notice of the hearing has been provided. [Ord. O-05-2013 (Exh. A)].

4.10.240 Administrative code enforcement order.

A. The parties may enter into a stipulated agreement, which must be signed by both parties. This agreement shall be entered by the administrative code enforcement order. Entry of this agreement shall constitute a waiver of the right to a hearing and the right to appeal.

B. Once all evidence and testimony are completed, the administrative law judge shall issue an administrative code enforcement order that affirms, modifies or rejects the notice or citation. The administrative law judge may increase or decrease the total amount of civil penalties and costs that are due pursuant to the Eagle Mountain City consolidated fee schedule and the procedures in this title.

C. The administrative law judge may order the city to enter the property and abate all violations, which may include removing animals kept in violation of the city code.

D. The administrative law judge may revoke a kennel permit, an animal license, or the right to possess animals as provided in the city code.

E. As part of the administrative code enforcement order, the administrative law judge may condition the total or partial assessment of civil penalties on the responsible person’s ability to complete compliance by specified deadlines.

F. The administrative law judge may schedule subsequent review hearings as may be necessary or as requested by a party to the hearing to ensure compliance with the administrative code enforcement order.

G. The administrative law judge may order the responsible person to post a performance bond to ensure compliance with the order.

H. The administrative code enforcement order shall become final on the date of the signing of the order.

I. The administrative code enforcement order shall be served on all parties by any one of the methods listed in EMMC 4.05.120. [Ord. O-05-2013 (Exh. A)].

4.10.250 Failure to comply with order.

A. Upon the failure of the responsible person to comply with the terms and deadlines set forth in the administrative code enforcement order, the city may use all appropriate legal means to recover the civil penalties and administrative costs to obtain compliance.

B. After the administrative law judge issues an administrative code enforcement order, the administrative law judge shall monitor the violations and determine compliance. [Ord. O-05-2013 (Exh. A)].

Article VI. Administrative Enforcement Appeals

4.10.260 Appeal of administrative code enforcement hearing decision.

A. Any person adversely affected by any decision made in the exercise of the provisions of this chapter may file a petition for review of the decision or order by the district court within 30 days after the decision is rendered.

B. No person may challenge in district court an administrative law judge’s decision until that person has exhausted his or her administrative remedies.

C. Within 120 days after submitting the petition, the party petitioning for appeal shall request a copy of the record of the proceedings, including transcripts of hearings when necessary. The administrative law division shall not submit copies of files or transcripts to the reviewing court until the party petitioning for appeal has paid all required costs. The petitioning party’s failure to properly arrange for copies of the record, or to pay the full costs for the record, within 120 days after the petition for review was filed shall be grounds for dismissal of the petition.

1. If a transcript of a hearing cannot be prepared because the tape recording is incomplete or unintelligible, the district court may, in its discretion, remand the matter to the administrative law judge for a supplemental proceeding to complete the record. The district court may limit the scope of the supplemental proceeding to issues that, in the court’s opinion, need to be clarified.

D. The district court’s review is limited to the record of the administrative decision that is being appealed. The court shall not accept nor consider any evidence that is not part of the record of that decision.

E. The courts shall:

1. Presume that the administrative law judge’s decision and orders are valid; and

2. Review the record to determine whether or not the decision was arbitrary, capricious, or illegal. [Ord. O-05-2013 (Exh. A)].