Chapter 11.01
CIVIL PENALTIES – CODE ENFORCEMENT PROGRAM
Sections:
11.01.040 Existing law continued.
11.01.050 Criminal prosecution right.
11.01.070 Notice of violation.
11.01.080 Violations not subject to warning.
11.01.090 Service of notice of violation.
11.01.120 Habitual offenders and reoccurring violations.
11.01.180 Administrative enforcement order.
11.01.200 Moving traffic violations prohibited.
11.01.010 Short title.
This title shall be known as the “civil penalties – code enforcement program.” This title shall also be known as Title 11 of the Helper City Municipal Code, and may be so cited and pleaded under either designation. [Ord. 2018-1].
11.01.020 Purpose.
The city council of Helper City finds that the enforcement of the Helper City ordinances and applicable state codes is vital to the protection of the public’s health, safety, welfare, and quality of life. The city of Helper (“the city”) intends by this chapter to provide a means for the city and individuals to identify ordinance violations within the city and to provide a means for correcting violations or abating the nuisances in order to protect the health and safety of the public, to foster neighborhood stability, to preserve the appearance, character and beauty of neighborhoods, to encourage community pride, to preserve the value of property, and to protect the general welfare of the city and its citizens, businesses and visitors. The city finds that an enforcement system that allows a combination of judicial and administrative remedies is effective in correcting violations. This chapter creates a standardized procedure for the administrative imposition of certain civil penalties authorized under various sections of the Helper City ordinances. [Ord. 2018-1].
11.01.030 Scope.
The provisions of this title may be applied to all violations of the Helper City ordinance or applicable state codes which occur within Helper City limits and such territory outside Helper City limits over which the city has jurisdiction or control by virtue of any constitutional provision or law. This title establishes as an additional remedy that may be used by the city to achieve compliance with applicable codes. [Ord. 2018-1].
11.01.040 Existing law continued.
The provisions of this title shall not invalidate any other title, chapter, or ordinance of the Helper City ordinances, but shall be read in conjunction with those titles, chapters, and ordinances and shall be used as an additional remedy for enforcement of violations thereof. The enactment of this chapter shall not be construed to limit the city’s right to prosecute any violation as a criminal offense. [Ord. 2018-1].
11.01.050 Criminal prosecution right.
The city shall have sole discretion in deciding whether to file a civil or criminal judicial case or pursue an administrative enforcement action for the violation of any of its ordinances or applicable code requirements. The enactment of this title shall not be construed to limit the city’s right to prosecute any violation as a criminal offense. If the city chooses to file both an administrative action and criminal charges for the same violation on the same day, no civil fees shall be assessed in the administrative action, but all other remedies contained herein shall be available. [Ord. 2018-1].
11.01.060 Definitions.
The following terms, as used in this title, are defined as follows:
“Administrative enforcement hearing” means a hearing held pursuant to the procedures established by this title and at the request of a responsible person.
“Administrative enforcement order” means an order issued by a hearing officer. The order may include an order to abate the violation, pay civil fees and administrative costs, performing compensatory service in lieu of a fine, and/or take any other action as authorized or required by this title and applicable state codes.
“City” means the city of Helper, Utah.
“City council” means the city council of Helper City.
“Civil citation” or “citation” means a notice or citation issued to a responsible person which gives notice of a violation and the civil fee for such violation.
“Date of notice” means:
1. The date of personal delivery of any notice or civil citation to the responsible person; or
2. Four days after any notice or civil citation is mailed via first class mail, postage prepaid, to the responsible person; or
3. The date that a notice or civil citation is affixed to a vehicle found in violation or mailed via first class mail, postage prepaid, to the registered owner of such vehicle at the address as shown in the registration records of the state of Utah.
“Enforcement officer” means an officer, employee, or other person authorized to issue any notice of code violation or civil citation.
“Habitual offender” means any person, premises, or property located within the city where there have occurred two or more convictions of a public nuisance, parking, animal, or other city ordinance related offense on the part of the responsible person within the period of one year prior to the commencement of an action under this title.
“Hearing officer” means a person appointed by the mayor, with the advice and consent of the city council, to preside over administrative enforcement hearings.
“Mayor” means the mayor of Helper City.
“Personal delivery” means hand delivery to the responsible person, or leaving the notice at the responsible person’s house with some person of suitable age and discretion.
“Property owner” means the record owner of real property as shown on the records of the Carbon County recorder or Helper City recorder.
“Responsible person” means the person(s) determined by the city who is responsible for causing or maintaining a violation of the Helper City ordinance or applicable state codes. The term “responsible person” shall include, but is not limited to, a property owner, agent, tenant, lessee, occupant, architect, builder, contractor, or other person who individually or together with another person is responsible for the violation of any provision of the Helper City ordinance or applicable state codes.
“Utah Code” means Utah Code Annotated 1953, as amended.
“Warning period” means two days after the date of notice, unless a greater period of time is given by the enforcement officer. If the notice of violation is delivered by first class mail, the time for correction listed in such notice shall include the additional four days required for delivery.
“Written” includes handwritten, typewritten, photocopied, computer printed, or facsimile. [Ord. 2018-1].
11.01.070 Notice of violation.
If an enforcement officer finds that a violation exists within the city, the enforcement officer may provide a notice of violation to the responsible party. The notice of violation shall indicate the nature of the violation, the action necessary to correct it, and the civil penalty amount for failure to correct the violation within the established warning period. The date of notice applicable to such notice shall serve to start the warning period.
Pursuant to Section 10-3-703, Utah Code Annotated 1953 any criminal citation issued for a violation of city code must be issued by a law enforcement officer as defined by Section 53-13-103, Utah Code Annotated 1953. [Ord. 2018-1].
11.01.080 Violations not subject to warning.
The officer may issue a warning at his discretion. A warning is not required for Chapter 6.05 HMC, Animal Control, Chapter 8.05 HMC, Solid Waste Disposal, Chapter 8.15 HMC, Public Nuisances, Chapter 8.25 HMC, Abatement of Weeds and Unsightly Objects, Chapter 12.05 HMC, Streets and Sidewalks, Chapter 10.10 HMC, Speed Limits – Parking – Pedestrians, any parking violation or any other citable offense. [Ord. 2018-1].
11.01.090 Service of notice of violation.
Whenever a notice or citation is required to be given under this title, the notice shall be served by one of the following methods, unless different provisions are otherwise specifically stated to apply:
A. Personal delivery to the responsible person;
B. First class mail, postage prepaid, to the last known address of the responsible person; or
C. Posting the notice or citation conspicuously on or in front of the property.
Failure of a responsible person to actually receive notice shall not affect the validity of any action taken if notice has been served in the manner set forth above. Service by first class mail shall be deemed served on the fourth day after the date of mailing. [Ord. 2018-1].
11.01.100 Failure to comply.
If a violation within the city remains uncorrected after expiration of the warning period, the responsible party shall be liable for the civil penalties imposed under such title, chapter, article, or section of this code. Such penalty shall be assessed by the issuance of a citation by the enforcement officer. Any penalty assessed herein shall be in addition to such other penalties as may be provided in this code. If a violation goes uncorrected and unpaid beyond. [Ord. 2018-1].
11.01.110 Daily violations.
Each day a violation remains uncorrected after expiration of the warning period shall give rise to a separate civil penalty. The city may combine any action to recover daily penalties with any other civil penalty regarding the same property or person. No civil citation shall be issued for a daily violation that occurs in conjunction with another criminal violation as part of a single criminal episode that will be prosecuted in a criminal proceeding. [Ord. 2018-1].
11.01.120 Habitual offenders and reoccurring violations.
If a violation is corrected but reoccurs on or related to the same responsible person or property twice within one year following the imposition of any civil penalty and the violation is committed by the same person, such violation shall subject that person to the applicable maximum penalty. [Ord. 2018-1].
11.01.130 Payment.
Any person issued a civil citation shall, within 30 days of the date of the notice, pay the civil penalty unless a request for a hearing is filed pursuant to HMC 11.01.150. [Ord. 2018-1].
11.01.140 Extensions of time.
The code enforcement officer or hearing officer may grant extensions of time to comply at their discretion. [Ord. 2018-1].
11.01.150 Appeals.
A. Any person having received a notice of violation or a civil citation may request a hearing before the hearing officer by written request or by phone within 14 calendar days of the date of the notice. Hearings shall be conducted as provided in HMC 11.01.170. Failure to request a hearing within 14 calendar days from the date of service constitutes a waiver of the right to an administrative enforcement hearing and the right to an appeal.
B. Notification shall be made to the enforcement officer when a hearing is requested.
C. The burden of proof shall be upon the person raising the defense.
D. Applicable Defenses. The hearing officer may dismiss the notice or citation if any of the following defenses are applicable:
1. The violation was corrected within the warning period;
2. Notice was not served in compliance with the provisions of this chapter;
3. It is determined that no violation of the ordinance existed under the notice or citation; or
4. At the time of the notice or citation, compliance would have violated the criminal laws of the state.
E. Mitigating Circumstances. If the hearing officer finds that a violation did occur, but that mitigating circumstances did exist, the penalty may be reduced at the hearing officer’s discretion after the violation is corrected. Mitigating circumstances may include:
1. If a change of the actual ownership of the subject property was recorded with the Carbon County recorder’s office after the notice of violation was issued and the new owner is not related by blood, marriage, or common ownership to the prior owner;
2. If the violation or inability to cure were caused by a force majeure event such as war, act of nature, strike, or civil disturbance;
3. Compliance with the notice would have presented an imminent and irreparable injury to persons or property; or
4. Such other mitigating circumstances as may be approved by the hearing officer.
F. Correction after Expiration of Warning Period Not a Defense. It shall not be a defense that the responsible person corrected the violation after expiration of the warning period.
G. Agreement for Delayed or Periodic Payments. If the hearing officer finds that the violation occurred and no applicable defense applies, the city may, in the interest of justice, enter into an agreement for the delayed or periodic payment of the applicable penalties. In the absence of an agreement for delayed or periodic payments, any civil penalty upheld or reduced by the hearing officer shall be paid within 14 calendar days of the date of the hearing officer’s decision.
H. Agreement for Compensatory Service in Lieu of a Fine. If the hearing officer finds that the violation occurred and no applicable defense applies, the city may, in the interest of justice, enter into an agreement for compensatory service in lieu of a fine. Compensatory service hours ordered by the hearing officer may not exceed the number of hours necessary to equal the possible fine as calculated at the rate of $10.00 an hour. Compensatory service may be performed for an organization and shall be considered eligible if the service is performed for:
1. A state or local government agency; or
2. An entity that is approved as a nonprofit organization under Section 501(c) of the Internal Revenue Code, provided the work does not primarily involve any political activity.
The responsible person shall report compensatory service hours to the court in a letter that is on the agency’s or organization’s official letterhead, signed by an authorized representative, that specifies the number of hours and a brief description of the service provided.
I. Appeal to City Council. Any person adversely affected by the decision of the hearing officer may petition the city council for review of the administrative determination pursuant to Section 10-3-703.7, Utah Code Annotated 1953. The petition to city council is for purposes of review and not a trial de novo. Any decision made by the city council is final. [Ord. 2018-1].
11.01.160 Hearing officer.
A. The mayor shall appoint a hearing officer to preside at administrative enforcement hearings. The hearing officer shall have authority to hold an administrative enforcement hearing for violations of the Helper City ordinances and applicable state codes.
B. The hearing officer:
1. Shall have no personal or financial interest in the matter for which the hearing officer is conducting a hearing; and
2. May be a city employee.
C. The hearing officer has continuing jurisdiction over the subject matter of an administrative enforcement hearing for the purposes of granting a continuance, ordering compliance by issuing an administrative enforcement order, modifying an administrative enforcement order or, where extraordinary circumstances exist, granting a new hearing. [Ord. 2018-1].
11.01.170 Hearing procedure.
A. It is the purpose and intent of the city that any responsible person shall be afforded due process of law during the enforcement process. Due process requires adequate notice, an opportunity to request and to participate in a hearing, and an explanation of the reasons justifying any resulting action.
B. Upon request of an administrative enforcement hearing, the hearing officer will schedule a date, time, and place for the hearing. The hearing will be informal according to the rules and procedures established by the hearing officer.
C. The hearing officer may continue a hearing for good cause shown by one of the parties or if the hearing officer determines that due process has not been adequately afforded to such party.
D. Within 30 calendar days of the issuance of a notice of violation or citation, the city may request an administrative enforcement hearing for the purpose of compelling a responsible person to comply with the corrective action required on the notice of violation or citation.
E. Administrative 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. Failure to request discovery is not a basis for continuance. Complainant information will not be disclosed or released unless the complainant appears as a witness at the hearing. Hearings are open to the public.
F. The city bears the burden of proof to establish the existence of a violation of the Helper City ordinances or applicable state codes. Proof will be established by a preponderance of the evidence.
G. Each party will have the opportunity to present evidence. A written statement signed under penalty of perjury may be accepted in lieu of personal appearance. Testimony may be given by telephone or other electronic means.
H. Failure to appear at an administrative enforcement hearing constitutes a waiver to the right of an administrative enforcement hearing and the right to an appeal.
I. Exceptions. The provisions in this title shall not apply to administrative hearings and decisions of public bodies, including, but not limited to, the planning and zoning commission. The hearings of such bodies will be conducted in accordance with their rules and procedures. [Ord. 2018-1].
11.01.180 Administrative enforcement order.
A. A responsible person and the city may enter into a stipulated agreement, signed by both parties, and the agreement will be entered as an administrative enforcement order. Entry of this agreement constitutes a waiver to the right of an administrative enforcement hearing and the right to an appeal.
B. After all evidence and testimony is presented, the hearing officer will issue a written administrative enforcement order that affirms or rejects the notice of violation or citation.
C. The hearing officer may issue an administrative enforcement order that requires the responsible person to take necessary corrective action on the violation or cease from violating the Helper City ordinances or applicable state codes.
D. The hearing officer may issue an administrative enforcement order imposing civil fees. The fees will double in accordance with the fee schedule for each violation until the responsible person complies with the hearing officer’s decision and corrects the violation. As part of an administrative enforcement order, the hearing officer may establish specific deadlines for the payment of fees, and condition the total or partial assessment of civil fees on their ability to take necessary corrective actions by specified deadlines.
E. The hearing officer may issue an administrative enforcement order imposing compensatory service in lieu of a fine.
F. The administrative enforcement order becomes final on the date of signing by the hearing officer.
G. The administrative enforcement order shall be served on all parties by one of the methods listed in HMC 11.01.090.
H. After the entrance of an administrative enforcement order, the enforcement officer will monitor the matter for compliance with the order. [Ord. 2018-1].
11.01.190 Failure to comply.
It shall be unlawful for any responsible person to fail to comply with the terms and deadlines set forth in an administrative enforcement order. A violation of this section is a class B misdemeanor. [Ord. 2018-1].
11.01.200 Moving traffic violations prohibited.
Pursuant to Section 10-3-703, Utah Code Annotated 1953, no moving traffic violation shall be adjudicated as a civil matter. [Ord. 2018-1].