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Home My WebLink AboutOrdnc 003 - Amend Fines for Certain Violations Deschutes County Board of County Commissioner 1300 NW Wall St., Ste 200, Bend, OR 97701-1960 (541) 388-6570 – Fax (541) 385-3202 – www.deschutes.org AGENDA REQUEST AND STAFF REPORT For Board Business Meeting of May 14, 2014 ________________________ Please see directions on the next page for completing this document DATE: May 1, 2014 FROM: Laurie Craghead Dept.: Legal Ph.: 541-388-6623 TITLE OF AGENDA ITEM: Consideration of First Reading by Title Only of Ordinance 2014-003, Amending Deschutes County Code 1.16.010 to Change “Base Fine” to “Presumptive Fine” ” and Set the Maximum Fine as the Presumptive Fine and Minimum Fine for Certain Violations, PUBLIC HEARING ON THIS DATE? NO Has public notice been given? N/A BACKGROUND AND POLICY IMPLICATIONS: In Deschutes County Code (“DCC”) Chapter 1.16, the County adopted the procedures in ORS Chapter 153 for issuing citations and prosecuting violations of County Code violations. For many years, the statutes referred to a “base fine,” which was a fine amount that was to be the initial amount of the fine to be written on the citation and the lowest fine to be set by the court for a violation. That amount was less than the maximum fine. The statutes, however, allowed counties to set their own base fines. The County Code set the base fine for Code violations at the maximum fine for violations of “Chapters 13.04, 13.08, 15.04 and 15.10 and Titles 17 and 18”. Those are the water, septic, building, outdoor lighting and land use chapters and titles, respectively. Staff recently discovered that the statutes were changed to eliminate references to a base fine and create a “presumptive fine” and a “minimum fine.” The presumptive fine is defined in the statute in an amount that is lower than the maximum fine for a Class A through D violations but higher than a new statutory minimum fine. The presumptive fine is what law enforcement officers write on citations for statutory violations and what the court will set a violation fine at unless other factors present themselves justifying the maximum or minimum fines. The presumptive fine is also now being used for citations for County Code violations since the County Code incorporates the violation procedures of ORS Chapter 153 without specifying a different presumptive fine. As with the prior base fines, the statutes allow counties to set their own presumptive fines. In order to maintain the same policy of not allowing a lower fine than the maximum fine for violations of the above listed chapters and titles, DCC 1.16.010 should be amended to change the “base fine” to “presumptive” fine. Per the Board’s request when this ordinance was originally before the Board, the proposed text amendment includes a provision that a judge or a hearings officer may impose a lower fine than the maximum if extenuating circumstances exists. Examples of such extenuating circumstances are provided in the text and those are: indigence of the defendant, severity of the violation, number of times defendant has been previously cited for Deschutes County Code violations; length of time of the violation has existed; and reason(s) the violation has not been cured. Additionally, DCC Chapter 13.36 was added to the list of code provisions for which the presumptive fine is to equal the maximum fine. That is the Nuisance and Abatement chapter primarily for the improper disposal of waste and solid waste. Furthermore, Title 19 was added to achieve consistency in the fines for all the land use and development code titles. FISCAL IMPLICATIONS: Higher presumptive fines for the designated violation may mean more revenue for the County because the courts will not be able to impose a lesser fine. Additionally, they might result in fewer code enforcement costs if the public knows that the fine will remain steep. On the other hand, not allowing the court to impose only the presumptive fine if the person pleads guilty instead of going to trial and risk a higher fine may result in more people pleading not guilty and opting for the more expensive trial. Few alleged violators, however, have ever plead guilty at the arraignment stage, even when the fine was at previous level of $720. Thus, the normal course has been for the court to set a trial date. RECOMMENDATION & ACTION REQUESTED: MOTION 1: Move approval of first by title only of Ordinance 2014-003. Second Reading and adoption in 2 weeks with effective date 90 days after that. ATTENDANCE: Laurie Craghead DISTRIBUTION OF DOCUMENT: Copy to Lori Furlong and Darryl Nakahira. PAGE 1 OF 2 - ORDINANCE NO. 2014 -003 For Recording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code 1.16.010 to Change “Base Fine” to “Presumptive Fine” and Set the Maximum Fine as the Presumptive Fine and Minimum Fine for Certain Violations * * * * * ORDINANCE NO. 2014-003 WHEREAS, in 2011, ORS Chapter 153 was amended to remove references to a “base fine” and to include provisions for a “presumptive fine” which is a fine amount to be written on a citation and is the amount presumed to be charged a defendant unless the court orders a higher fine not to exceed the statutory maximum fine or a lower fine not to be below the statutory minimum fine for a particular violation; and WHEREAS, Deschutes County Code (“DCC”) 1.16.010 currently requires that the “base fine” for a DCC violation will not be lower than the maximum fine “for violations of Chapters 13.04, 13.08, 15.04 and 15.10 and Titles 17 and 18”; and WHEREAS, the Board of County Commissioners (“Board”) finds that amending DCC 1.16.010(D)(1) is necessary to change the term “base fine” to “presumptive fine” to set both the presumptive fine and minimum fine at the Maximum Fine level in order to maintain the previous code intent of no fine be below the Maximum Fine for violations of Chapters 13.04, 13.08, 13.36, 15.04 and 15.10 and Titles 17 and 18; now, therefore, THE BOARD OF COUNTY COMMISSIONERS 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 underlined and language to be deleted in strikethrough. Dated this _______ of ___________, 2014 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON _____________________________________________ TAMMY BANEY, Chair _________________________________________ ANTHONY DEBONE, Vice Chair ATTEST: ______________________________ Recording Secretary _________________________________________ ALAN UNGER, Commissioner Date of 1st Reading: _____ day of ____________, 2014. REVIEWED ______________ LEGAL COUNSEL PAGE 2 OF 2 - ORDINANCE NO. 2014 -003 Date of 2nd Reading: _____ day of _____________, 2014. Record of Adoption Vote Commissioner Yes No Abstained Excused Tammy Baney ____ ____ ____ ____ Anthony DeBone ____ ____ ____ ____ Alan Unger ____ ____ ____ ____ Effective date: _____ day of ____________, 2014. Chapter 1.16 1 (3/2014) Page 1 of 1 – EXHIBIT A TO ORDINANCE 2014-003 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 or 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 exceeding the Maximum Fines provided in ORS 153.018. D. Notwithstanding this section and DCC 1.16.030, for violations of Chapters 13.04, 13.08, 13.36, 15.04 and 15.10 and Titles 17, and 18, and Title 19 the base Presumptive and Minimum fine amounts shall be the Maximum Fine amounts described in DCC 1.15.010(D. E. For violations of County Code provisions not listed in DCC 1.16.010(D), the Presumptive and Minimum Fine amounts shall be as provided in ORS Chapter 153. F. Notwithstanding DCC 1.16.010(D), the court or the hearings officer may impose a fine lower than the fine provided in those two sections upon a finding of mitigating factors including, but not limited to, indigence of the defendant, severity of the violation, number of times defendant has been previously cited for Deschutes County Code violations; length of time of the violation has existed; and reason(s) the violation has not been cured. (Ord. 2014-003, §1, 2014; Ord. 2013-015, §1, 2013; Ord. 2008-026, §1, 2008; Ord. 2003-021 §3, 2003; Ord. 2002-016 §9, 2002; 86-076 §1, 1986)