HomeMy WebLinkAboutOrdinance 015 - Amend Code Violation AmountsDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of September 4, 2013
DATE: August 21,2013
FROM: Laurie Craghead Legal 388-6623
TITLE OF AGENDA ITEM:
Consideration of Second reading by Title Only of Ordinance 2013-015, Amending Deschutes County
Code Chapter 1.16 to Include State Violation Fine Amounts and Allow Circuit Court Judges to Order
Injunctive Relief
PUBLIC HEARING ON TIDS DATE? NO
BACKGROUND AND POLICY IMPLICATIONS:
On August 19,2013, the Board conducted the first reading by title only of Ordinance 2013-015. No
changes have been proposed as of the submittal of this agenda request.
The Community Development Department Code Enforcement team is in the process of reviewing and
proposing possible amendments to the county's code enforcement policy manuaL In doing so, the team
reviewed ORS Chapter 153, the statutes adopted in Deschutes County Code ("DCC") Chapter 1.16 as
the process to be used for violations of the DCC. That review revealed that, since 2008, the last time
DCC 1.16.010, the maximum fines section, was updated, the statutory maximum violation fines listed
in ORS 153.018(1) were increased from $720 to $2000 for Class A violations and from $300 to $1000
for Class B violations. Staff believes that increasing the county maximum fines to mirror the statutory
maximum fines will aid in achieving compliance with DCC requirements because the current maximum
$720 fine is not taken seriously by some violators. This ordinance adopts those new statutory
maximum fines.
Additionally, under the current DCC provisions, the only punishment for a violator cited into court is a
fine. Under ORS 153.008(l)(C), "The [county] may provide for punishment in addition to a fine as
long as the punishment does not include a term of imprisonment." Staff be Jieves that having the
additional possible remedy of the court ordering injunctive relief to require a violator to cease the
violation and to engage in compliance actions would greatly enhance the County's ability to obtain
compliance by violators. Violators are more likely to comply with an order of the court to cease or take
action than if only a fine is imposed. Thus, achieving code compliance could be quicker and less
expensive ifit is included as part ofthe original citation process as opposed to having to file a separate
injunction action. This ordinance includes a text amendment to allow a court to enter an order for
injunctive relief.
FISCAL IMPLICATIONS:
The increased funds could aid in the County's Code Enforcement program being more self-sustaining.
Additionally, the ability for the court to order injunctive relief could expedite the code enforcement
I
process as violators are less likely to ignore a court order, thereby saving code enforcement costs to the I
county.
RECOMMENDATION & ACTION REQUESTED:
Motion 1: Second Reading by Title Only of Ordinance 2013-015
Motion 2: Adoption
ATTENDANCE: Laurie Craghead, Nick Lelack
DISTRIBUTION OF DOCUMENTS:
Copy to Laurie Craghead & Nick Lelack
I
kED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending Deschutes County '"
Code Chapter 1.16 to Include State Violation * ORDINANCE NO. 2013-015
Fine Amounts and Allow Circuit Court Judges to *
Order Injunctive Relief *
WHEREAS, since 2008, the state statutory maximum fines in ORS 153.018 for violations have been
increased considerably, but Deschutes County Code ("DCC") 1.16.010(1 )(C) setting the maximum fines for
violations of the DCC has not been updated; and,
WHEREAS, the Board of County Commissioners ("Board") finds that amending DCC 1.16.0 IO(C)(I)
to mirror the statutory maximum fines will aid in providing incentives for code violators to comply with the
DCC; and
WHEREAS, per ORS 153.008(1 )(C), a county may include in its code enforcement ordinance a
provision to authorize the court to order injunctive relief when a violatm is cited into court, but the current DCC
does not include sllch a provision; and
WHEREAS, the Board finds that including the ability for the court to order injunctive relief rather than
having to file a separate injunctive action will expedite the code enforcement process and reduce the costs of the
code enforcement program; now, therefore,
THE BOARD OF COUNTY COMMlSSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Chapter 1.16 is amended to read as described in Exhibit "A,"
attached hereto and by this reference incorporated herein, with new language !,lnderlined and language to be
deleted in strikethrough.
Dated this of ,2013 BOARD OF COUNTY COMMISSIONERS---"-----
OF DESCHUTES COUNTY, OREGON
ALAN UNGER, Chair
TAMMY BANEY, Vicc Chair
ATTEST:
Recording Secretary ANTHONY DEBONE,
PAGE T OF2·0RDINANCENO.2013-015
I
Date ofl st Reading: __ day of _____, 2013.
Date of 2nd Reading: __day of _____, 2013.
Record of Adoption Vote
Commissioner Yes No Abstained Excused
Alan Unger
Tammy Baney
Anthony DeB one
Effective date: __day of ___ ,2013.
I
PAGE 2 OF 2 -ORDINANCE NO. 2013 -015
Chapter 1.16. CODE VIOLATIONS AND ENFORCEMENT
1.16.010. Violations Deemed Class A or B Classification-Penalties.
1.16.020. Continuing Violations.
1.16.030. Violation 1>I'ocedures-Statlltory Provisions Adopted.
1.16.032. Base Fine Amounts and Violation Classification fOl' Water Supply, On-Site Sewage,
Building Code, Subdivision Regulations and Land Use Regulation Violations.
1.16.035. Seal'cIt Wan'ants-Statutory Provisions Adopted.
1.16.040. Other Remedies Not Precluded -In jUlIctive Reliefl Ahatement.
1.16.045. Pl'ivate Right of Action.
1.16.050. Stop Work or Use Tag Violations.
1.16.060. Continua tion of Certain Liabilities.
1.16.070. Code Enforcement Officials-Designation by County Administrator.
1.16.080. Code Enforcement Officials-Appointment Status.
1.16.090. Penalty for False Information on Noise or Animal Control Violation.
1.16.010. Violations Deemed Class A or B Classification-Penalties.
A. Violation of a county ordinance shall be punishable, upon conviction, by fine or by the specific
remedies specified within the County Code.
B. Each county ordinance specifying a county offense shall classify the ordinance violation as a Class A
01' Class B violation.
C. A sentence to pay a fine for a violation of a county ordinance shall be a sentence to pay an amount not
exceedingJh~Maxjmum Fines in ORS_L~JlJ 8.;
h--£.ev€n-1:H:lndi.'{?d··tHld-lwenty-E!ffi!:afs-f{;t!'··H-Gias-s-A-vielatiew,-&1'
~ree-Htlfldred dollan, for a ClassB yiolation.
D. Notwithstanding 1.16.030. for violations of Chapters 13.04, 13.08. 15.04 and 15.10 and Titles J 7 and
.L~.,Jl1o;;__b1!J.l~Jln~.. mn.Q.J.I.I)J.. ~.~IJ..b..~th~M{E~.ullW]1.Lill Q.<}ll.19Jl.nt
(Qnl. 20 13-~§J-,-_4Q.ll;..Ord. 2008-026, § I, 2008; Ord. 2003-021 §3, 2003; Ord. 2002-016 §9, 2002;
86-076 § I. J986)
1.16.015. Stl"ict Liability
A. All of the offenses in the Deschutes County Code are strict liability offenses and do not require the
proof of any culpable mental state unless the code provision defining the offense expressly provides that
culpability is required.
B. It is no defense to prosecution under any provision in this code that the actor was not the person who
actually created, moved, caused, or maintained the unlawful condition or use.
C. A person is liable for prosecution under any provision of this code:
I. 'fthe person created, moved, caused, or maintained an unlawful condition or use;
2. If the person aided or abetted another person in creating, moving, causing, or maintaining an
unlawful condition or use;
3. If the person is in actual or constructive possession of premises on which an unlawful condition or
lise or is found; or
4. If the person has any interest, other than a security interest, in premises on which an unlawful
condition or lise is found.
(Ord. 2008-026, §1,2008)
1.16.020. Continuing Violations.
Chapter 1.16 (6Q/201+;lJ
Page 1 of4 EXHIBIT A TO ORDINANCE 2013015
A. When a violation is of a continuing nature, a separately punishable violation occurs on each calendar
day the violation continues.
B. The complaint for a continuing violation will clearly state the following:
I. The ongoing or uninterrupted nature of the violation;
2. The date the violation is alleged to have first occurred;
3. The dates or range of dates of each day of the continuing or uninterrupted violation; and
4. The amount of the fine for each day's violation.
(Ord. 2008-026, § 1,2008; Ord. 2003-021 §4, 2003; Ord. 2002-016 §9, 2002; 86-076 §2, 1986)
1.16.030. Violation procedures-Statutory provisions adopted.
A. The violation procedures as set forth in ORS 153.030 to 153.145 and 153.990 shall be the
procedures for county ordinance violations, and are adopted hereby by reference.
B. Peace officers may enforce the provisions of Chapter 6.08, Animal Control, when the peace
officer has reasonable grounds to believe that the conduct constitutes a violation of that
chapter.
(Ord. 2009-005 § 1, 2009; Ord. 2008·026, § 1, 2008; Ord. 2003-021 §5, 2003; Ord. 2002-032 § 1,
2002; 2002-016 §9, 2002; 86 076 §3, 1986)
1.16.032. Bnse--ILine--AIll&Unt..,..nud-Violation Classification for Water Supply, On-Site Sewage,
Building Code, Subdivision Regulations and Land Use Regulation Violations.
A. ~~I'l~l-iftg 1.16.030, fi)!' ¥i~lati0ft5-I:)f-GhaftefS--t-l;,G4,+J~..§.J)4--a:H(.~--frl)d-::r.:ttles+f--Hnd
~-&-tHe·base-fi·H&a~netH1HrllRtl-ae-the-fitle-arnffifnh
B-:-Yiolations of Chapters 13.04, 13.08, 13.36, 15.04 and 15.10 and Titles 17 and 18 constitute Class A
violations.
COrd. 2013-015. § 1,2013; Ord. 2002-032 §1,2002)
1.16.035. Search warrants-Statutory Provisions Adopted.
A. The definition of "offense" as set fOlth in ORS 161.505 is adopted:
B. An offense is conduct for which a sentence to a term of imprisonment or to a fine is provided by any
law of this state or by any law or ordinance of a political subdivision of this state. An offense is a crime
or a violation.
C. ORS 133.535 (3), which allows for propelty that has been used, or is possessed for the purposc of being
used, to commit or conceal the commission of an offense to be the subject of search and seizure is
adopted hereby by reference.
D. The procedlll'e established for obtaining search warrants as set forth in ORS 133.545 through 133.703 is
adopted hereby by reference.
(Ord. 2003-021 §6, 2003; Ord. 96-025 §1, 1996)
1.16.040. OthCI' Remedies Not Precluded-Injunctive Relief/Abatement.
Chapter 1.16 2 (a~120I+J)
Page 2 of4 -EXHIBIT A TO ORDINANCE 2013015 I
l
I
!i,_ The procedure established by DCC 1.16.0 10 through DCC 1.16.060 shall be the exclusive procedure for
imposing a fine; provided, however, such sections shall not prohibit, in any manner, alternative
remedies, including but not limited to injunction, nor shall the County be prohibited fr0111 recovering
any expense incurred in any injunction action.
n. In addition to a I1ne.> any citation for I'Lyiolatiol1 of a COUlIt\' o~tlinal1cc may include a rt:qucst for
ini.l)ll.9 ti YQ.x~Ji~ffm~!L0L<JQ.{l.tQ.!1}~JJtgJJb.~..Y!.91 ali~m,
L.The ~ou illY '~J.:.tmc~~~!!!1'!lb:.IL!~m/Jtt~~l.)~illI~~LiJ.lll!lJs.th:e re I ief ~lld!or:.._£1.hatel]l~UL~!.tJh.LJil]J~~
arraigl1ment or tri 111
~:..JlP1~!~ntc:?I.ingjl!g&!JJ£.llL;1g£l.iD.?JJ! l2er~QX!.JQLY iql.§.ti.1}g3 .COllnty ord inanc(,Jh.e cp urL!!!l:ly,j)L!lSig.i.tiQl1
allV other penahv imposed bv law, enter orders for injunctive relief and/or abatement. requ iring the
person to cease aJJiLgesist and to correct the violation(s).
(Q!:Q".f.Q11:JH5",iL.'zJH.3.;.Ord. 86-076 §4, 1986)
1.16.045. Pdvate Right of Action.
A. Any person, whether acting as principal, agent or employee, whose interest is or may be affected by any
violation of a Deschutes County ordinance may, in addition to the other remedies provided by law, file
an violation complaint in the following manner:
I. The private citizen shall prepare and present the violation complaint to the appropriate enforccment
officer.
2. If the enforcement officer fails to act upon the violation complaint within 30 days, the citizen may
submit the violation complaint to Deschutes County Legal Counsel (legal counsel).
3. Legal counsel shall investigate the alleged violation of a cOllnty ordinance and, after consultation
with the appropriate depa.tment head, shall either
a. have the violation complaint served and prosecute, or
b. decline to have the violation complaint served or to prosecute.
4. Legal counsel shall notify the private citizen of said action within ten days from the date the
violation complaint is presented to legal counsel.
5. The private citizen, following notice by legal counsel of legal counsel's decision not to prosecute,
may, within 60 days of such notice, bring an action under the authority granted by DCC 1.16.045, in
the citizen's name against the alleged violator in the same manner and form as provided by a civlJ
violation complaint.
6. Should the private citizen prevail against the violator, any fine imposed and special costs shall be
awarded to the plaintiff private citizen.
B. A decision by legal counsel not to prosecute a zoning ordinance violation shall not be deemed to
constitute a land use decision.
(Ord. 2002-016 §9, 2002; 97·058 §1, 1997)
1.16.050. Stop Work or Use Tag Violations.
After a stop work or lise tag is posted, any person continuing work or use commits a separate violation.
Violation of a stop work or use notice constitutes a Class A violation.
(Ord. 2002-016 §9, 2002; 86-076 §5, 1986)
1.16.060. Continuation of Certain Liabilities.
A. The repeal of Ordinances 82-012 and 86-027 by the ordinance codified in DCC 1.16.010 through
1.16.060 shall not extinguish allY penalty, forfeiture or judgment imposed or liability incurred under
Ordinance 82-0]2, as amended by Ordinance 86-027.
B. Ordinances 82-012 and 86·027 shall remain in full force and effect for the purpose of enforcement of
any penalty, forfeiture or judgment imposed thereunder or liability incurred thereunder.
Page 3 of4 EXHIBIT A TO ORDINANCE 2013015
Chapter I.] 6 3 ({l~l20 1~.J) I
I
t
(Ord. 86-076 §6, 1986)
1.16.070. Code Enfol'cement Officials-Designation by County Administrator.
A. The County Administrator shall designate individuals, in addition to peace officers, who are employees
or agents of the county, to enforce violations of county ordinances.
B. Private individuals who commence actions under subseetion C of this section are not agents or
employees of the county.
C. A private person may commence an action for a noise offense under DCC 8.08, or an animal control
violation under DCC 6.08 by signing the complaint before a magistrate, clerk or deputy clerk of the
court or sheriff's deputy.
D. The action commenced by a private person shall be entered in the court record.
E. If an ORS 153.045 uniform violation citation form is not used, then a complaint under DCC
1.16.070(B) shall contain a statement that the complainant shall certify, under the penalties provided in
DCC 1.16.090, that the complainant has reasonable grounds to believe, and does believe, that the person
cited committed the offense contralY to law.
F. A certificate conforming to DCC 1.16.090 shall be deemed equivalent to a sworn complaint.
G. When the complaint is cel1ified by a private person, the COUl1 shalI cause the summons to be delivered
to the defendant. The cOLll1may require the County Sheriff's Office to serve the summons as provided
in ORS 153.535(1).
(Ord. 2011-023 §I, 2011; Ord. 2008-026, §1, 2008, Ord. 2007-028 §I, 2007; Ord.2002-016 §9, 2002; 98
010 §1, 1998; Ord. 87-005 §l, 1987)
1.16.080. Code Enfol'cement Officials-Appointment Status.
The appointment of a county officer to enforce violations of county ordinances shall be continuous until
such appointment is revoked by the County Administrator or where such officers are employees, upon
separation from employment.
(Ord. 2011-023 § 1,20 II; Ord. 2002-016 §9, 2002; 87-005 §2, 1987)
1.16.090. Penalty fOl' False Infol'mation on Noise or Animal Control Violation,
Any person who, in eonnection with the issuance of a complaint for a noise or animal control violation as
defined in DCC 8.08 or DCC 6.08 respectively, knowingly ce11ifies falsely in the matters set forth therein,
commits a Class A violation.
(Ord. 2002-016 §9, 2002; 98-010 §2, 1998)
Chapter 1.16 4
Page 4 of4 -EXHIBIT A TO ORDINANCE 2013015