Chapter 1.26 CODE ENFORCEMENT

The provisions of this chapter shall apply to enforcement of BIMC Titles 16 and 18, Chapters 7.01 and 15.04 BIMC, and specified provisions outlined in BIMC Title 20. For purposes of this chapter, such titles and chapters shall be referred to as “the applicable titles and chapters of this code.” (Ord. 2018-07 § 4, 2018: Ord. 2015-03 § 1, 2015: Ord. 2008-10 § 6, 2008: Ord. 2003-16 § 3, 2003: Ord. 2002-15 § 3, 2002: Ord. 97-07 § 4, 1997; Ord. 95-02 § 1, 1995)

1.26.020 Duty to enforce – Inspections – Duty to comply.

A. It shall be the duty of the director of planning and community development to enforce the applicable titles and chapters of this code. The director may call upon other city departments and officers to assist in enforcement. Whenever used in this chapter the term “director” includes the code enforcement officer or other official duly authorized by the director.

B. Code Enforcement Officer – Definition. A city official charged with the responsibility to ensure compliance with all state, city and zoning codes and ordinances as adopted by the city council.

C. The director may enter any building or property to perform duties imposed by the applicable titles and chapters of this code in accordance with Chapter 1.16 BIMC.

D. This chapter and the applicable titles and chapters of this code shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.

E. It is the intent of this chapter and the applicable title and chapters of this code to place the obligation of complying with their requirements upon the owner, occupier or other person responsible for the condition of the land and buildings within the scope of the applicable titles and chapters of this code.

F. No provisions of or term used in this chapter or the applicable titles and chapters of this code is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in a civil action. (Ord. 2018-07 § 5, 2018; Ord. 2003-28 § 2, 2003; Ord. 2001-02 § 1, 2001: Ord. 95-02 § 1, 1995)

1.26.025 Investigation and notice of violation.

A. The director shall investigate any structure or use which the director reasonably believes does not comply with the standards and requirements of the applicable titles and chapters of this code.

B. Whenever the director determines that a violation of the code has occurred there shall be served upon the responsible person either:

1. A notice of violation and corrective order; or

2. A notice of infraction.

C. The director shall issue a notice of violation and corrective order; provided, that a notice of infraction shall be issued if the person cited has been served with a prior notice of violation, the person cited has committed prior violations of the code, the person is cited for failing to comply with a stop work order or an emergency order, or the violation creates an immediate threat to public health, safety or welfare.

D. The director may issue a stop work order or emergency order in appropriate cases without regard to whether any other enforcement action has been or will be taken. (Ord. 2001-02 § 2, 2001: Ord. 95-02 § 1, 1995)

1.26.026 Notice of infraction – Service.

The director may issue a notice of infraction if the director reasonably believes that a provision of the applicable titles and chapters of this code has been violated. A notice of infraction may be served either by:

A. The director serves the notice of infraction on the person named in the notice of infraction at the time of issuance; or

B. The director files the notice of infraction with the court, in which case the court shall have the notice served either personally or by mail, postage prepaid, on the person named in the notice of infraction at his or her address. (Ord. 2001-02 § 3, 2001: Ord. 95-02 § 1, 1995)

1.26.027 Notice of infraction – Form – Contents.

The notice of infraction shall include the following:

A. A statement that the notice represents a determination that the infraction has been committed by the person named in the notice and that the termination shall be final unless contested as provided in this chapter;

B. A statement that the infraction is a noncriminal offense for which imprisonment shall not be imposed as a sanction;

C. A statement of the specific infraction for which the notice was issued;

D. A statement that monetary penalties as set forth below have been established for each infraction;

E. A statement of the options provided in this ordinance for responding to the notice and the procedures necessary to exercise these options;

F. A statement that at any hearing to contest the determination the city has the burden of proving by a preponderance of the evidence, that the infraction was committed; and that the person may subpoena witnesses, including the authorized representative who issued and served the notice of infraction;

G. A statement, which the person who has been served with the notice of infraction shall sign, that the person promises to respond to the notice of infraction in one of the ways provided in this chapter;

H. A statement that refusal to sign the infraction as directed in subsection G of this section is a misdemeanor and may be punished by a fine or imprisonment in jail; and

I. A statement that a person’s failure to respond to a notice of infraction as promised is a misdemeanor and may be punishable by a fine or imprisonment in jail. (Ord. 95-02 § 1, 1995)

1.26.028 Notice of infraction – Filing – Hearing in municipal court.

A notice of infraction shall be filed in municipal court within 48 hours of issuance, excluding Saturdays, Sundays, and holidays. Bainbridge Island municipal court shall have jurisdiction to hear and determine these matters. (Ord. 95-02 § 1, 1995)

1.26.029 Notice of infraction – Determination infraction committed.

Unless contested in accordance with this chapter, the notice of infraction represents a determination that the person to whom the notice was issued committed the infraction. (Ord. 95-02 § 1, 1995)

1.26.030 Notice of infraction – Response requesting a hearing – Failure to respond or appear – Order to set aside.

A. A person who receives a notice of infraction shall respond to the notice as provided in this section within 15 days of the date the notice was served.

B. If the person named in the notice of infraction does not contest the determination, the person shall respond by completing the appropriate portion of the notice of infraction and submitting it, either by mail or in person, to the court specified on the notice. A check or money order in the amount of the penalty prescribed for the infraction must be submitted with the response. When a response which does not contest the determination is received, an appropriate order shall be entered in the court’s records, and a record of the response order shall be furnished to the department of planning and community development (DPCD).

C. If the person named in the notice of infraction wishes to contest the determination, the person shall respond by completing the portion of the notice of infraction requesting a hearing and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing. The date of the hearing shall not be earlier than seven days nor more than 90 days from the date of the notice of the hearing, except by agreement.

D. If the person determined to have committed the civil infraction does not contest the determination but wishes to explain mitigating circumstances surrounding the infraction, the person shall respond by completing the portion of the notice of civil infraction requesting a hearing for that purpose and submitting it, either by mail or in person, to the court specified on the notice. The court shall notify the person in writing of the time, place, and date of the hearing, and that date shall not be earlier than seven days nor more than 90 days from the date of the notice of the hearing, except by agreement.

E. The court shall enter a default judgment assessing the monetary penalty prescribed for the civil infraction, and may notify the prosecuting attorney of the failure to respond to the notice of civil infraction or to appear at a requested hearing if any person issued a notice of a civil infraction;

1. Fails to respond to the notice of civil infraction as provided in subsection B of this section; or

2. Fails to appear at a hearing requested pursuant to either subsection C or D of this section. If a default judgment is entered, the court shall notify the DPCD of the entry of the default judgment, and the reason therefor. (Ord. 95-02 § 1, 1995)

1.26.031 Notice, failure to sign, Nonappearance – Failure to satisfy penalty.

A. A person who fails to sign a notice of civil infraction is guilty of a misdemeanor.

B. Any person willfully violating his or her written and signed promise to appear in court or his or her written and signed promise to respond to a notice of civil infraction is guilty of a misdemeanor regardless of the disposition of the notice of civil infraction; provided, that a written promise to appear in court or a written promise to respond to a notice of civil infraction may be complied with by appearance of counsel.

C. A person who willfully fails to pay a fine or to perform community service as required by a court under this chapter may be found in civil contempt of a court after notice and hearing. (Ord. 2001-02 § 4, 2001: Ord. 95-02 § 1, 1995)

1.26.032 Representation by attorney.

A. A person subject to proceedings under this chapter may appear or be represented by counsel.

B. The city prosecutor may, but need not, appear in any proceedings under this chapter. (Ord. 95-02 § 1, 1995)

1.26.033 Infraction – Hearing – Procedure – Burden of proof – Order – Appeal.

A. A hearing held to contest the determination that an infraction has been committed shall be without a jury.

B. The court may consider the notice of infraction and any sworn statements submitted by the authorized representative who issued and served the notice in lieu of his or her personal appearance at the hearing. The person named in the notice may subpoena witnesses, including the authorized representative who has issued and served the notice, and has the right to present evidence and examine witnesses present in court.

C. The burden of proof is on the city to establish the commission of the infraction by a preponderance of evidence.

D. After consideration of the evidence and argument, the court shall determine whether the infraction was committed. If it has not been established that the infraction was committed, an order dismissing the notice shall be entered in the court’s records. If it has been established that a civil infraction has been committed, an appropriate order shall be entered in the court’s records.

E. An appeal from the court’s determination or order shall be to the superior court in the manner provided by the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. The decision of the superior court is subject only to discretionary review pursuant to the Rules of Appellate Procedure. (Ord. 95-02 § 1, 1995)

1.26.034 Infraction – Explanation of mitigating circumstances.

A. A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of an infraction shall be an informal proceeding. The person may not subpoena witnesses. The determination that a civil infraction has been committed may not be contested at a hearing held for the purpose of explaining mitigating circumstances.

B. After the court has heard the explanation of the circumstances surrounding the commission of the civil infraction, an appropriate order shall be entered in the court’s records.

C. There shall be no appeal from the court’s determination or order. (Ord. 95-02 § 1, 1995)

1.26.035 Judgment – Fine – Restitution – Costs – Attorneys’ fees.

A. Upon a finding that a civil infraction has been committed the court shall enter judgment requiring:

1. Payment of a fine of not more than $500.00 for each day of noncompliance.

2. Payment of court costs as defined by rule or statute.

3. Payment to the prevailing party of its reasonable attorneys’ fees as allowed by RCW 7.80.140.

B. Whenever a fine is imposed by a court under this chapter it is immediately payable. If the person is unable to pay at that time, the court may grant an extension of the period in which the penalty may be paid. If the penalty is not paid on or before the time established for payment, the court may proceed to collect the penalty in the same manner as other civil judgments and may notify the prosecuting attorney of the failure to pay. The court shall also notify the department of planning and community development of the failure to pay the penalty, and the department shall not issue the person any future permits for any work until the monetary penalty has been paid.

C. The court may also order a person found to have committed a civil infraction to make restitution. (Ord. 2001-02 § 5, 2001: Ord. 95-02 § 1, 1995)

1.26.036 Order of court – Civil nature – Modification of penalty – Community service.

A. An order entered after the receipt of a response which does not contest the determination, or after it has been established at a hearing that the civil infraction was committed, or after a hearing for the purpose of explaining mitigating circumstances is civil in nature.

B. The court may waive, reduce, or suspend the monetary penalty prescribed for the civil infraction. If the court determines that a person has insufficient funds to pay the monetary penalty, the court may order performance of a number of hours of community service in lieu of a monetary penalty, at the rate of the then state minimum wage per hour. (Ord. 95-02 § 1, 1995)

1.26.037 Notice of infraction does not limit further action.

Issuance or disposition of a notice of infraction shall not limit or preclude any action or proceeding pursuant to Chapter 1.24 BIMC or BIMC 1.26.050, 1.26.060, 1.26.090 or 1.26.100. (Ord. 2001-02 § 6, 2001: Ord. 95-02 § 1, 1995)

1.26.038 Violations – Failure to provide information identifying person.

Willful refusal to provide information identifying a person as required by this section is a misdemeanor. (Ord. 95-02 § 1, 1995)

1.26.039 Reserved.

1.26.040 Reserved.

1.26.050 Stop work order.

Whenever a continuing violation of the applicable titles and chapters of this code will materially impair the director’s ability to secure compliance with such titles and chapters, or when the continuing violation threatens the environment, health or safety of the public, the director or duly authorized representative of the director, may issue a stop work order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a stop work order shall constitute a violation of the applicable titles and chapters of this code. (Ord. 2001-02 § 7, 2001: Ord. 95-02 § 1, 1995)

1.26.060 Emergency order.

A. Whenever any use or activity in violation of the applicable titles and chapters of this code threatens the environment, health or safety of the occupants of the premises or any member of the public, the director may issue an emergency order directing that the use or activity be immediately discontinued and the condition causing the threat to the environment, health or safety be corrected. The emergency order shall be posted in a conspicuous place on the property, if posting is physically possible. A failure to comply with an emergency order shall constitute a violation of the applicable titles and chapters of this code.

B. Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the director is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recovered from the owner or the person responsible or both in the manner provided by law. (Ord. 2001-02 § 8, 2001: Ord. 95-02 § 1, 1995)

1.26.065 Notice of violation – Procedures.

A. The notice of violation shall state separately each standard or requirement violated, shall state what corrective action, if any, is necessary to comply with the standards or requirements, and shall set a reasonable time for compliance. The notice shall state that any subsequent violations may result in criminal prosecution as provided in BIMC 1.26.100. In the event of violations of the standards or requirements of Chapter 16.20 BIMC, the required corrective action shall include, if appropriate, but shall not be limited to, mitigating measures such as restoration of the area and replacement of damaged or destroyed trees.

B. The code enforcement officer filing the notice of violation may file with the court, in which case the court shall have the notice served either personally or by mail, postage prepaid, on the person named in the notice of violation at his or her address, or in accordance with subsection C of this section.

C. The notice shall be served upon the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person or persons is unknown or service cannot be accomplished and the director makes an affidavit to that effect, the service of the notice upon such person or persons may be made by mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known or if unknown, to the address of the property involved in the proceedings.

D. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible.

E. Nothing in this section shall be deemed to limit or preclude any action or proceeding pursuant to BIMC 1.26.050 or 1.26.060.

F. The director may mail, or cause to be delivered to all residential and/or nonresidential units in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, stop work order or emergency order and the applicable requirements and procedures.

G. A notice or an order may be amended at any time in order to correct clerical errors or cite additional authority for a stated violation. (Ord. 2001-02 § 8, 2001: Ord. 97-07 § 5, 1997; Ord. 95-02 § 1, 1995)

1.26.070 Review by the director.

A. Any person affected by a notice of violation issued under BIMC 1.26.050 or 1.26.060 may request a review of the notice by requesting such review within seven days after service of the notice. When the last day of the period so computed is a Saturday, Sunday or federal or city holiday, the period shall run until 4:00 p.m. on the next business day. The request shall be in writing, clearly and concisely identifying the errors of the director, or the basis for any claimed mitigation, and upon receipt of the request, the director shall review the materials and:

1. Determine, in the sole discretion of the director, whether a review meeting should be held; or

2. Respond in writing denying the request for review citing the reasons for the denial. A director’s review may be denied if:

a. The review is being requested for an obvious or flagrant violation for which fines or penalties, but no mitigation, are required;

b. The review is being requested solely to seek a reduction or elimination of fines and penalties;

c. The review is being requested to seek a waiver or reduction of the enforcement fee;

d. The review is being requested for any matter relating to burning violations.

If the director determines a review meeting should be held, the director shall notify any persons served the notice of violation and the complainant, if any, of the date, time and place set for the review, which shall be not less than 10 nor more than 20 days after the request is received. Before the date set for the review, any person affected by the notice of violation may submit any additional written material to the director for consideration at the review. During the administrative review, the order shall be in full force and effect until the order is corrected or the decision is overturned.

B. The review will consist of an informal review meeting held at the department of planning and community development. A representative of the director who is familiar with the case and the applicable ordinances will attend. The director or representative of the director will explain the reasons for the issuance of the notice and will listen to any additional information presented by the persons attending. At or after the review, the director may:

1. Sustain the notice of violation;

2. Withdraw the notice of violation;

3. Continue the review to a date certain for receipt of additional information; or

4. Modify the notice of violation, which may include an extension of the compliance date.

C. The director shall issue an order containing the decision within 10 working days of the date of the completion of the review and shall cause the same to be mailed by regular first class mail to the person or persons named in the notice of violation, mailed to the complainant, if possible, and filed with the Bainbridge Island municipal court and Kitsap County auditor if necessary for recording on the title to the property.

D. The decision of the director may be appealed pursuant to the procedures set forth in BIMC 2.16.130. (Ord. 2001-02 § 9, 2001: Ord. 95-02 § 1, 1995)

1.26.075 Time to comply.

A. When calculating reasonable time for compliance, the director shall consider the following criteria:

1. The type and degree of the violation cited in the notice;

2. The stated intent, if any, of a responsible party to take steps to comply;

3. The procedural requirements for obtaining a permit to carry out corrective action;

4. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and

5. Any other circumstances beyond the control of the responsible party.

B. Unless a request for review before the director is made in accordance with BIMC 1.26.070, the notice of violation shall become the final order of the director. A copy of the notice may be filed with the Bainbridge Island municipal court. The director may choose not to file a copy of the notice or order if the notice or order is directed only to a person other than the owner of the property. (Ord. 2001-02 § 10, 2001: Ord. 95-02 § 1, 1995)

1.26.080 Extension of compliance date – Revocation.

A. The director may grant an extension of time for compliance with any notice or order, whether pending or final, upon finding that substantial progress toward compliance has been made and that the public will not be adversely affected by the extension.

B. An extension of time may be revoked by the director if it is shown that the conditions at the time the extension was granted have changed, if the director determines that a party is not performing corrective actions as agreed, or if the extension creates an adverse effect on the public. The date of revocation shall then be considered as the compliance date. The procedures for revocation, notification of parties, and appeal of the revocation shall be established by rule. (Ord. 2001-02 § 11, 2001: Ord. 95-02 § 1, 1995)

1.26.090 Civil penalty.

A. In addition to any other sanction or remedial procedure which may be available, any person violating or failing to comply with any of the provisions of the applicable titles and chapters of this code shall be subject to a cumulative penalty in the amount of $1,000 per day for each violation from the date set for compliance until the date of compliance.

B. The penalty imposed by this section shall be collected by civil action brought in the name of the city. The director shall notify the city prosecutor in writing of the name of any person subject to the penalty, and the city prosecutor shall, with the assistance of the director or duly authorized representative of the director, take appropriate action to collect the penalty.

C. The violator may show as full or partial mitigation of liability that:

1. The violation giving rise to the action was caused by the willful act, neglect, or abuse of another; or

2. Correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by the inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition or circumstances beyond the control of the violator. (Ord. 2001-02 § 12, 2001: Ord. 95-02 § 1, 1995)

1.26.100 Criminal penalties.

A. In addition to any civil penalty that may be imposed, any person violating or failing to comply with the applicable titles and chapters of this code and having a judgment entered against the person pursuant to BIMC 1.26.090 within the past five years, shall be guilty of a gross misdemeanor, and shall be punished by a fine of not more than $5,000 or by imprisonment for a period not to exceed one year, or by both such fine and imprisonment. Each day of noncompliance shall constitute a separate offense.

B. In addition to any civil penalty that may be imposed, a criminal penalty, not to exceed one year imprisonment and/or $5,000 per violation, may be imposed:

1. For violations of BIMC 16.20.120.D and 18.123.010.D and Section 205(c) of the Uniform Building Code as amended by BIMC 15.04.030;

2. For any other violation of the applicable title and chapters of this code for which corrective action is not possible; and

3. For any refusal to comply with a stop work order or an emergency order. (Ord. 2001-02 § 13, 2001: Ord. 95-02 § 1, 1995)

1.26.110 Additional relief.

The city prosecutor, with the assistance of the director, may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable titles and chapters of this code when civil or criminal penalties are inadequate to effect compliance. (Ord. 2001-02 § 14, 2001: Ord. 95-02 § 1, 1995)