Chapter 1.28
CIVIL VIOLATIONS AND PENALTIES
Sections
1.28.010 Purpose and applicability.
1.28.030 Voluntary correction.
1.28.040 Notice of civil violation.
1.28.050 Hearing before the hearing examiner.
1.28.060 Abatement by the city.
1.28.070 Entry to buildings and premises – Warrants.
1.28.080 Additional enforcement procedures.
1.28.110 Severability – Construction.
1.28.010 Purpose and applicability.
The purpose of this chapter is to establish an efficient system to enforce civil regulations of the city, to provide an opportunity for a prompt hearing and decision on alleged violations of these regulations, and to establish monetary penalties for violations and to establish a process for appeal. This chapter may be applied for the purpose of enforcing any provision of the city’s municipal code that is expressly designated as a regulation under this chapter. The procedures and sanctions established in this chapter are intended to serve as additional enforcement tools or as an alternative to any other procedure or section established in the code and may be followed at the discretion of the city manager or other designated city official in order to achieve compliance with any regulation covered by this chapter. [Ord. 1236 § 1, 1999.]
1.28.020 Definitions.
(1) Use of Words and Phrases. As used in this chapter, unless the context or subject matter clearly requires otherwise, the words or phrases defined in this section shall have the indicated meanings.
(2) “Abate” means to repair, replace, remove, destroy, or otherwise remedy a condition which constitutes a civil violation by such means, in such a manner and to such an extent as the applicable department director determines is necessary in the interest of the general health, safety, and welfare of the community.
(3) “Act” means doing or performing something.
(4) “Civil violation” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs or exists is a separate violation. Traffic infractions pursuant to Title 10 DMMC and civil noise infractions pursuant to Titles 7 and 18 DMMC are specifically excluded from this chapter.
(5) “Development” means the erection, alteration, enlargement, demolition, maintenance, or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts authorized by a city permit, approval, or other regulation.
(6) “Emergency” means a situation that in the opinion of the applicable department director requires immediate action to prevent or eliminate an immediate threat of injury or damage to persons or property.
(7) “Hearing examiner” means the Des Moines hearing examiner or any lawfully appointed deputy hearing examiner.
(8) “Omission” means a failure to act.
(9) “Person” means any individual, firm, association, partnership, corporation or any entity, public or private.
(10) “Person responsible for the violation” means any person who is required by the applicable regulation to comply therewith, or who commits any act or omission which is a civil violation or causes or permits a civil violation to occur or remain upon property in the city, and includes but is not limited to owner(s), lessor(s), tenant(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs.
(11) “Regulation” means and includes the following, as now or hereafter amended:
(a) Title 5 DMMC, regarding city business licenses, taxes and regulation;
(b) Title 7 DMMC, regarding health and sanitation, including without limitation regulations pertaining to solid waste disposal, noise, and junk vehicles;
(c) Title 11 DMMC relating to the city utilities code governing surface water management and the municipal storm water system;
(d) Title 12 DMMC relating to streets, sidewalks and public places, including without limitation the city’s right-of-way use code;
(e) Title 14 DMMC, the city’s building and construction code;
(f) Chapter 15.04 DMMC, the Des Moines harbor code, which includes without limitation all marina rules;
(g) Title 18 DMMC, the city’s zoning code;
(h) Chapter 19.08 DMMC, regarding the city’s park use regulations;
(i) All standards, regulations and procedures adopted pursuant to the above; and
(j) The terms and conditions of any lease, moorage agreement, contract, permit or approval issued by the city, or any concomitant agreement with the city.
(12) “Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years.
(13) “Violation” means an act or omission contrary to a city regulation including an act or omission at the same or different location by the same person and including a condition resulting from such act or omission. [Ord. 1463 § 1, 2009: Ord. 1321 § 1, 2003: Ord. 1236 § 2, 1999.]
1.28.030 Voluntary correction.
(1) Applicability. This section applies whenever the city manager or designee determines that a violation of a regulation has occurred or is occurring.
(2) General. Where, in the judgment of the city manager or designee, it might be beneficial in resolving a code violation, he/she will make a reasonable attempt to secure voluntary correction by contacting the person responsible for the violation, explaining the violation and requesting correction.
(3) Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the city manager or designee.
(a) Content. The voluntary correction agreement is a contract between the city and the person responsible for the violation under which such person agrees to abate the violation within a specified time and according to specified conditions. The voluntary correction agreement shall include the following:
(i) The name and address of the person responsible for the violation; and
(ii) The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
(iii) A description of the violation and a reference to the provision(s) of the city ordinance or regulation which has been violated; and
(iv) The necessary corrective action to be taken, and a date or time by which correction must be completed; and
(v) An agreement by the person responsible for the violation that the city may abate the violation and recover its costs and expenses and a monetary penalty pursuant to this chapter from the person responsible for the violation if terms of the voluntary correction agreement are not met; and
(vi) An agreement that by entering into the voluntary correction agreement the person responsible for the violation waives the right to an appeal of the violation and/or the required corrective action, except that an appeal may be pursued regarding compliance with any required corrective action to the hearing examiner.
(b) Right to a Hearing Waived. The person responsible for the violation waives the right to an appeal of the violation and the required corrective action upon entering into a voluntary correction agreement, except that an appeal may be pursued regarding compliance with any required corrective action to the hearing examiner.
(c) Extension – Modification. An extension of the time limit for correction or a modification of the required corrective action may be granted by the city manager or designee if the person responsible for the violation has shown due diligence or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable.
(d) Abatement by the City. The city may abate the violation in accordance with this chapter if the terms of the voluntary correction agreement are not met.
(e) Collection of Costs. If the terms of the voluntary correction agreement are not met, the person responsible for the violation shall be assessed a monetary penalty commencing on the date set for correction and thereafter, plus all costs and expenses of abatement. [Ord. 1321 § 2, 2003: Ord. 1236 § 3, 1999.]
1.28.040 Notice of civil violation.
(1) Issuance. When the City Manager or designee determines that a violation has occurred or is occurring, the City Manager or the City Manager’s designee may issue a notice of civil violation without having attempted to secure voluntary correction as provided in DMMC 1.28.030 under the following circumstances:
(a) When an emergency exists; or
(b) When a repeat violation occurs; or
(c) When the violation creates a situation or condition which cannot be corrected; or
(d) When the person knows or reasonably should have known that the action is in violation of a City regulation.
(2) Content. The notice of civil violation shall include the following:
(a) The name and address of the person responsible for that violation; and
(b) The street address or description sufficient for identification of the building, structure, premises, or land upon or within which the violation has occurred or is occurring; and
(c) A description of the violation and a reference to the provision(s) of the City regulation which has been violated; and
(d) The required corrective action and a date and time by which the correction must be completed after which the City may abate the unlawful condition in accordance with this chapter or other applicable law; and
(e) The date, time and location by which an affected party may file an appeal before the Hearing Examiner; and
(f) A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if the City Manager or designee approves the completed, required corrective action at least 48 hours prior to the hearing, except that this statement need not be included where the violation constitutes a repeat violation or the violation creates a situation or condition which cannot be corrected; and
(g) A statement that the costs and expenses of abatement incurred by the City pursuant to this chapter and a monetary penalty in an amount per day for each violation as specified in this chapter may be assessed against the person to whom the notice of civil violation is directed.
(3) Service of Notice. The City Manager or the City Manager’s designee shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing a copy of the notice of civil violation to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within King County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made, and if by posting the facts showing that due diligence was used in attempting to serve the person personally or by mail.
(4) Extension. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by order of the Hearing Examiner, or by written agreement of the City Manager or the City Manager’s designee and the person responsible for the violation.
(5) Monetary Penalty. The monetary penalty for each violation per day or portion thereof shall be as follows:
(a) First day of each violation, $100.00;
(b) Second day of each violation, $200.00;
(c) Third day of each violation, $300.00;
(d) Fourth day of each violation, $400.00;
(e) Each additional day of each violation beyond four days, $500.00 per day.
(6) Continued Duty to Correct. Payment of a monetary penalty pursuant to this chapter does not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.
(7) Collection of Monetary Penalty.
(a) The monetary penalty constitutes a personal obligation of the person to whom the notice of civil violation is directed. Any monetary penalty assessed must be paid to the City within 10 calendar days from the date of service of the notice of violation. Service by mail shall be deemed complete upon the third day following the day upon which notice is placed in the mail, unless the third day falls on a Saturday, Sunday, or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday, or legal holiday following the third day.
(b) The City Attorney is authorized to take appropriate action to collect the monetary penalty. [Ord. 1598 § 2, 2014: Ord. 1321 § 3, 2003: Ord. 1236 § 4, 1999.]
1.28.050 Hearing before the Hearing Examiner.
(1) Notice. A person to whom a notice of civil violation is issued may appeal such notice to the Hearing Examiner within 10 calendar days after the notice of civil violation is issued.
(2) Prior Correction of Violation. Except in the case of a repeat violation or a violation which creates a situation or condition which cannot be corrected, the hearing will be canceled and no monetary penalty will be assessed if the City Manager or designee approves the completed required corrective action at least 48 hours prior to the scheduled hearing or agrees to extend the time for correction of the violation as provided in DMMC 1.28.040.
(3) Procedure. The Hearing Examiner shall conduct a hearing on the civil violation pursuant to the Des Moines Hearing Examiner Code, chapter 18.240 DMMC. The applicable department director and the person to whom the notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The determination of the applicable department director as to the need for the required corrective action shall be accorded substantial weight by the Hearing Examiner in determining the reasonableness of the required corrective action.
(4) Decision of the Hearing Examiner.
(a) The Hearing Examiner shall determine whether the City has established by a preponderance of the evidence that a violation has occurred and that the required correction is reasonable and shall affirm, vacate, or modify the City’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
(b) The Hearing Examiner shall issue an order to the person responsible for the violation which contains the following information:
(i) The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;
(ii) The required corrective action;
(iii) The date and time by which the correction must be completed;
(iv) The monetary penalties assessed based on the provisions of this chapter;
(v) The date and time after which the City may proceed with abatement of the unlawful condition if the required correction is not completed.
(c) Assessment of Monetary Penalty. Monetary penalties assessed by the Hearing Examiner shall be in accordance with the monetary penalty schedule in DMMC 1.28.040(5).
(i) The Hearing Examiner shall have the following options in assessing monetary penalties:
(A) Assess monetary penalties beginning on the date the notice of civil violation was issued and thereafter; or
(B) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the Hearing Examiner and thereafter; or
(C) Assess no monetary penalties.
(ii) In determining the monetary penalty assessment, the Hearing Examiner shall consider the following factors:
(A) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;
(B) Whether the person failed to appear at the hearing;
(C) Whether the violation was a repeat violation;
(D) Whether the person showed due diligence or substantial progress in correcting the violation;
(E) Whether a genuine code interpretation issue exists; and
(F) Any other relevant factors.
(iii) The Hearing Examiner may double the monetary penalty schedule if the violation was a repeat violation.
(d) Notice of Decision. The Hearing Examiner shall mail a copy of the decision to the appellant and to the applicable department director within 15 working days of the hearing.
(5) Failure to Appear. If the person to whom the notice of civil violation was issued fails to appear at the scheduled hearing, the Hearing Examiner may enter an order finding that the violation occurred and assessing the appropriate monetary penalty. The City will carry out the Hearing Examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.
(6) Monetary Penalty. The monetary penalty for a violation does not accrue pending the appeal; however, the Hearing Examiner may impose a daily monetary penalty from the date of service of the notice of civil violation if the Hearing Examiner finds that the appeal is frivolous or intended solely to delay compliance.
(7) Appeal to Superior Court – Land Use Decision. Judicial review of a land use decision, as defined in RCW 36.70C.020, made by the Hearing Examiner, must be made pursuant to the provisions of the Land Use Petition Act, chapter 36.70C RCW. [Ord. 1598 § 3, 2014: Ord. 1321 § 4, 2003: Ord. 1236 § 5, 1999.]
1.28.060 Abatement by the city.
(1) The city may abate a condition which was caused by or continues to be a civil violation when:
(a) The terms of any voluntary correction agreement pursuant to this chapter have not been met; or
(b) A notice of civil violation has been issued pursuant to this chapter, the period for filing an appeal with the municipal court has expired, and the required correction has not been completed; or
(c) A notice of civil violation has been issued pursuant to this chapter, a timely appeal was filed, the appellant failed to appear at the scheduled hearing or the municipal court held an appeal hearing as provided in this chapter and the required correction has not been completed by the date specified by an order of the hearing examiner; or
(d) The condition is subject to summary abatement as provided for in this chapter or other specific provisions of city or state law(s).
(2) Summary Abatement. Whenever a violation of a regulation causes a condition the continued existence of which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.
(3) Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition which is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.
(4) Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use and/or occupy the property and shall become due and payable to the city within 10 calendar days. The term “incidental expenses” includes but shall not be limited to personnel costs, both direct and indirect, including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work; and the costs of any required printing and mailing.
(5) Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any tasks necessary to correct the violation. [Ord. 1321 § 5, 2003: Ord. 1236 § 6, 1999.]
1.28.070 Entry to buildings and premises – Warrants.
Whenever necessary to make an inspection to determine whether a civil violation has occurred or is occurring, or to enforce any provision of the Des Moines Municipal Code, or regulation issued thereunder, violation of which is a civil violation under this chapter, the city manager or designee may enter any building or premises at any reasonable time, provided if such building or premises is occupied the city official shall first present credentials and request entry; and if such building or premises is not occupied, the city official shall first make a reasonable effort to locate the owner or other person having charge of the building or premises and request entry. If such entry is refused or the owner or other person having charge of the building or premises cannot be located, the applicable department director or his designee shall have recourse to every remedy provided by law to secure entry, including recourse to the district or superior court for issuance of a warrant authorizing such entry and inspection. [Ord. 1236 § 7, 1999.]
1.28.080 Additional enforcement procedures.
The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Des Moines Municipal Code except as precluded by law. [Ord. 1236 § 8, 1999.]
1.28.090 Conflicts.
In the event of a conflict between this chapter and any other provision of the Des Moines Municipal Code or city ordinance providing for a civil penalty, this chapter shall control. [Ord. 1236 § 9, 1999.]
1.28.100 Meaning of terms.
For the purposes of this code, whenever “civil penalty” is used in any code, ordinance or regulation of the city, the term shall be deemed to have the same meaning as “civil violation,” as used herein. [Ord. 1321 § 6, 2003: Ord. 1236 § 10, 1999.]
1.28.110 Severability – Construction.
(1) If a section, subsection, paragraph, sentence, clause, or phrase of this chapter is declared unconstitutional or invalid for any reason by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this chapter.
(2) If the provisions of this chapter are found to be inconsistent with other provisions of the Des Moines Municipal Code, this chapter is deemed to control. [Ord. 1236 § 11, 1999.]