Chapter 4.40
CITATIONS
Sections:
4.40.050 Remedy – Civil fines.
4.40.060 Response to citation – Presumption of violation if no response.
4.40.070 Mitigating circumstances hearing – Notice – Conduct – Determination – Finding.
4.40.080 Violation contest hearing – Notice – Conduct – Determination – Finding.
4.40.090 Hearings open to the public.
4.40.010 Authority.
Whenever a Director has determined, based on investigation of documents and/or physical evidence, that a civil code violation has occurred, the Director may issue a citation to any person responsible for code compliance. The Director shall make a determination whether or not to issue a citation within 30 days of receiving a complaint alleging a violation or otherwise discovering that a violation may potentially exist. Subsequent complaints shall be treated as new complaints for purposes of this section. (Ord. O-13-534 § 5).
4.40.020 Effect.
A. A citation represents a determination that a civil code violation has been committed and that the person cited is a person responsible for code compliance. The determination is final unless contested as provided in this title.
B. Subject to MVMC 4.20.100, a citation subjects the person responsible for code compliance to the civil fine prescribed by Chapter 4.70 MVMC.
C. Subject to MVMC 4.20.110, a citation may subject the person responsible for code compliance to an illegal dumping cleanup restitution payment.
D. The person issued a citation shall respond to the citation as provided in MVMC 4.40.060 and 4.40.070 within 14 days of the date of service of the citation.
E. Failure to respond to the citation within 14 days shall render the citation a final determination that the conditions described in the citation existed and constituted a civil code violation and that the person cited is liable as a person responsible for code compliance.
F. Imposition of a civil fine creates a joint and several personal obligation in all persons responsible for code compliance who are served with the citation. The City Attorney may collect the civil fines assessed by any appropriate legal means.
G. Issuance of a citation in no way limits a Director’s authority to issue a notice and order or stop work order to the same person responsible for code compliance pursuant to this title. Payment of the civil fine assessed under the citation does not relieve a person responsible for code compliance of his or her duty to correct the violation or to pay any and all civil penalties accruing under a notice and order or stop work order issued pursuant to this title. (Ord. O-13-534 § 5).
4.40.030 Contents.
A citation shall contain the following:
A. A reasonable description of the location of the property on which the violation occurred;
B. The name and address of the person responsible for code compliance;
C. A brief description of the violation or violations found;
D. A statement of the specific ordinance, City code provision, permit condition, notice and order provision, or stop work order provision that was violated;
E. The date that the citation was served;
F. A statement that the citation represents a determination that a civil code violation has occurred and that the person cited is subject to civil fines;
G. A statement of the amount of the civil fine assessed;
H. A statement of the options provided in this title for responding to the citation and the procedures necessary to exercise these options;
I. A statement that, at any hearing to contest the determination that a civil code violation has occurred, the City has the burden of proving, by a preponderance of the evidence, that the violation was committed;
J. A statement that, at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the violation, the person cited will be deemed to have committed the violation;
K. A statement that the person cited must respond to the citation as provided in this chapter within 14 days;
L. A statement that failure to respond to the citation or to appear at a requested hearing renders the citation a final determination that the conditions described in the citation existed and constituted a civil code violation and that the person cited is liable as a person responsible for code compliance;
M. A statement advising that a failure to respond to the citation or appear at a requested hearing may be referred to the City Attorney for prosecution; and
N. A statement, made under penalty of perjury as provided in RCW 9A.72.085, setting forth facts supporting issuance of the citation. (Ord. O-13-534 § 5).
4.40.040 Revocation.
A Director may revoke or modify a citation issued under this title if the original citation was issued in error or if a party to a citation was incorrectly named. Such revocation or modification shall identify the reasons and underlying facts for revocation. (Ord. O-13-534 § 5).
4.40.050 Remedy – Civil fines.
A citation shall carry a civil fine to be determined with reference to the schedule contained in Chapter 4.70 MVMC. The payment of civil fines does not relieve a person responsible for code compliance of any obligation to cure, abate or stop a violation. (Ord. O-13-534 § 5).
4.40.060 Response to citation – Presumption of violation if no response.
A. A person issued a citation must respond within 14 days after service of the citation in one of the following ways:
1. If the person issued the citation does not contest the determination, the person shall pay the amount of the civil penalty plus cleanup restitution payment, if applicable, specified in the citation. The record shall show a finding that the person cited is the person responsible for code compliance;
2. If the person issued the citation does not contest the determination, but wishes to explain the circumstances surrounding the commission of the violation, the person shall request in writing a mitigation hearing and provide a mailing address to which notice of the hearing may be sent; or
3. If the person issued the citation wishes to contest the determination that a violation occurred or that the person issued the citation is responsible for the violation, the person shall request in writing a contested hearing and provide a mailing address to which notice of the hearing may be sent.
B. The person issued the citation shall respond to the citation by mail to the address provided on the citation. The response shall be postmarked no later than 14 days after the date the citation was served.
C. If a person fails to respond to a citation within 14 days, the person shall be deemed to have committed the violation stated in the citation. The Director may assess the penalty and restitution payment specified in the citation. (Ord. O-13-534 § 5).
4.40.070 Mitigating circumstances hearing – Notice – Conduct – Determination – Finding.
A. If a person requests a hearing in response to a citation to explain mitigating circumstances surrounding the commission of the violation the Department shall notify the Hearing Examiner that a mitigation hearing has been requested. The Director, working in conjunction with the City Attorney, shall:
1. Schedule a hearing to be held within 30 calendar days after the Department provides notice of the request; and
2. At least 10 calendar days before the date of the hearing, provide notice of the time, place and date of the hearing by first class mail to the address provided in the request for hearing.
B. The Hearing Examiner shall conduct an informal nonevidentiary hearing. The person cited may produce witnesses, but witnesses may not be compelled to attend. The Director may also attend and provide additional information, but no such attendance is required.
C. The Hearing Examiner shall determine whether the person’s explanation justifies reduction of the civil penalty or restitution. In considering whether to reduce the civil penalty or restitution, the Hearing Examiner may consider mitigating factors necessary to achieve an equitable result and further the legitimate interests of the Department.
D. After hearing the explanation of the person cited and any other information presented at the hearing, the Hearing Examiner shall enter an order finding that the person cited committed the violation and assessing civil penalties and cleanup restitution payment, if applicable, in an amount determined by the Hearing Examiner. The Hearing Examiner’s decision constitutes the final agency action. (Ord. O-13-534 § 5).
4.40.080 Violation contest hearing – Notice – Conduct – Determination – Finding.
A. If a person requests a hearing in response to a citation to contest the finding that a violation occurred or to contest that the person issued the citation is responsible for the violation, the Department shall notify the Hearing Examiner that a contested hearing has been requested. The Director, in conjunction with the City Attorney, shall:
1. Schedule a hearing to be held within 30 calendar days after the Department provides notice of the request; and
2. At least 10 calendar days before the date of the hearing, provide notice of the time, place and date of the hearing by first class mail to the address provided in the request for hearing.
B. Except as otherwise provided in this section, contested hearings shall be conducted pursuant to Chapter 2.65 MVMC and the rules of procedure of the Hearing Examiner. The Hearing Examiner may only issue subpoenas for witnesses (not violators, who, subject to subsection (G) of this section, are required to appear), and order limited discovery; however, such discovery shall not delay the date set for the contested hearing, nor be grounds for a continuance of the scheduled hearing. Depositions of violators and witnesses shall not be allowed.
C. If the rights of the alleged violator to receive notice that meets due process requirements are not prejudiced:
1. A citation shall not be deemed insufficient by reason of formal defects or imperfections, including a failure to contain a detailed statement of the facts constituting the specific violation which the person cited is alleged to have committed; and
2. A citation may be amended prior to the conclusion of the hearing so as to conform to the evidence presented.
D. The burden of proof is on the City to establish by a preponderance of the evidence that the violation was committed. The Hearing Examiner shall consider the citation and any other written report made as provided in RCW 9A.72.085, submitted by the person who issued the citation or whose written statement was the basis for the issuance of the citation in lieu of that person’s personal appearance at the hearing as prima facie evidence that a violation occurred and that the person cited is responsible. The statement and any other evidence accompanying the report shall be admissible without further evidentiary foundation. Any additional certification or declarations authorized under RCW 9A.72.085 shall also be admissible without further evidentiary foundation. The person cited may rebut the evidence and establish that the violation did not occur or that the person contesting the citation is not responsible for the violation.
E. If the citation is sustained at the hearing, the Hearing Examiner shall enter an order finding that the person cited committed the violation. If an ongoing violation remains uncorrected, the Hearing Examiner shall impose the applicable penalty. The Hearing Examiner may reduce the penalty if the violation has been corrected. If the Hearing Examiner finds by a preponderance of the evidence that the violation did not occur, an order shall be entered dismissing the citation.
F. The Hearing Examiner decision is a final agency action.
G. All persons cited as responsible for code compliance are required to appear for a scheduled hearing. An appearance by an attorney representing a cited person shall not be sufficient to satisfy this provision, unless the person cited is domiciled outside of Washington State. A cited person’s failure to appear for a scheduled hearing shall result in an order being entered that the person cited is the person responsible for code compliance and said order shall assess the applicable civil penalty and, if applicable, cleanup restitution payment. (Ord. O-13-534 § 5).
4.40.090 Hearings open to the public.
Hearings held for mitigation purposes pursuant to MVMC 4.40.070 or to contest a citation pursuant to MVMC 4.40.080 are open to the public. (Ord. O-13-534 § 5).