HomeMy WebLinkAboutOrdnc 023 - Building-Fire CodeDeschutes County Board of Commissioners
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of July 27, 2011
Please see directions for completing this document on the next page.
DATE: July 11, 2011.
FROM: Mark Pilliod/Laurie Craghead. Legal 388-6623
TITLE OF AGENDA ITEM:
First and Second Reading by Title Only and Adoption of Ordinance 2011-023 Amending and Adding to
Deschutes County Code Title 1 to Allow for County Administrator Appointment of Code Enforcement
Officials and to Adopt Administrative Hearings Procedures for Building and Fire Code Violations and
to and Declaring an Emergency.
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
Exhibit A amends Deschutes County Code Chapter 1.16 to change the appointing authority from the
Board of County Commissioners to the County Administrator forthe county's code enforcement
officers.
Exhibit B is a new DCC Chapter 1.17 to create a new local hearings process for building code
violations. Prior to now, the county cited building code violators into Circuit Court. In 2009, the state
legislature adopted Senate Bill 915 that prohibits citing such violations into court and requires a local
administrative hearings process. The creation of this new process is the result of a collaboration
between Legal Counsel and Community Development Code Enforcement teams.
Adoption by emergency is necessary because the Code Enforcement team has held off initiating
enforcement action for some building code violations pending the adoption of this new process.
FISCAL IMPLICATIONS:
None
RECOMMENDATION & ACTION REQUESTED:
Motion 1: Move 1st and 2nd reading by title only of Ordinance 2011-023.
Motion 2: Move adoption of Ordinance 201-023
ATTENDANCE: Mark Pilliod, Tom Anderson
DISTRIBUTION OF DOCUMENTS:
Original to Clerk's office, copies to CDD & Legal.
"****" Denotes provisions in this chatter remaining unchanged by Ordinance 201.1-023.
Chapter 1.16. CODE VIOLATIONS AND ENFORCEMENT
1.16.010.
1.16.020.
1.16.030.
1.16.032.
1.16.035.
1.16.040.
1.16.045.
1.16.050.
1.16.060.
1.16.070.
1.16.080.
1.16.090.
Violations Deemed Class A or B Classification -Penalties.
Continuing Violations.
Violation Procedures -Statutory Provisions Adopted.
Base Fine Amounts and Violation Classification for Water Supply, On -Site Sewage,
Building Code, Subdivision Regulations and Land Use Regulation Violations.
Search Warrants -Statutory Provisions Adopted.
Other Remedies Not Precluded.
Private Right of Action.
Stop Work or Use Tag Violations.
Continuation of Certain Liabilities.
Code Enforcement Officials -Designation by BoardCounty Administrator.
Code Enforcement Officials- Appointment Status.
Penalty for False Information on Noise or Animal Control Violation.
1.16.070. Code Enforcement Officials- Designation by Boti-rd.County Administrator
A. The Board, by order,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 subsection 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 contrary to law.
F. A certificate conforming to DCC 1.16.090 shall be deemed equivalent to a sworn complaint.
G. When the complaint is certified by a private person, the court shall cause the summons to be delivered
to the defendant. The court may require the County Sheriffs Office to serve the summons as provided
in ORS 153.535(1).
(Ord. 2011-023 §1, 2011; Ord. 2008-026 §1, 2008, Ord. 2007-028 §1, 2007; Ord.2002-016 §9, 2002; 98-
010 §1, 1998; Ord. 87-005 §1, 1987)
1.16.080. Code Enforcement 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 BoardCounty Administrator.
(Ord. 201.1-023 §1. 2011: Ord. 2002-016 §9, 2002; 87-005 §2, 1987)
Chapter 1.16 (06/2011)
Page 1 of 1 — Exhibit A to Ordinance 2011-023
REVIEWED
LEGAL COUNSEL
For Recording Stamp Only
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Amending and Adding to Deschutes
County Code Title 1 to Allow for County
Administrator Appointment of Code Enforcement
Officials and to Adopt Administrative Hearings
Procedures for Building and Fire Code Violations
and to and Declaring an Emergency. *
ORDINANCE NO. 2011-023
WHEREAS, Deschutes County Code ("DCC") requires Deschutes County Code Enforcement Officials
other than public safety officers to be appointed by the Board of County Commissioners ("Board"); and
WHEREAS, it is more efficient for the County Administrator to be the appointing authority for Code
Enforcement Officials; and
WHEREAS, in 2009, the Oregon legislature adopted Senate Bill 915 that required local hearings
procedures instead of citations to court for building code violations; and
WHEREAS, Deschutes County Staff initiated a text amendment to add DCC Chapter 1.17 in order to
implement Senate Bill 915; and
WHEREAS, the Board considered this matter and concluded that the proposed changes are consistent
with the County's Comprehensive Plan and that the public will benefit from changes to the land use regulations;
and
WHEREAS, adoption of this ordinance by emergency is necessary because Deschutes County will not
have a means of enforcing alleged violations of the County's adopted building code without this text amendment
in place; now therefore,
THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS
as follows:
Section 1. AMENDMENT. DCC Chapter 1.16., Code Violations And Enforcement, is amended to
read as described in Exhibit "A", attached and incorporated by reference herein, with new language underlined
and deleted language set forth in strilcethrough.
Section 2. ADDING. DCC Chapter 1.17, Code Enforcement Hearings Procedures, is added as in
Exhibit "B," attached and incorporated by reference herein.
///
PAGE 1 OF 2 - ORDINANCE NO. 2011-023
Section 4. EMERGENCY. This Ordinance being necessary for the public peace, health and safety, an
emergency is declared to exist and this Ordinance takes effect on its passage.
Dated this of , 2011. BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ATTEST:
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
Recording Secretary ALAN UNGER, Commissioner
Date of 1st Reading: day of , 2011.
Date of 2"d Reading: day of , 2011.
Record of Adoption Vote:
Commissioner Yes No Abstained Excused
Tammy Baney
Anthony DeBone
Alan Unger
Effective date: day of , 2011.
PAGE 2 OF 2 - ORDINANCE NO. 2011-023
Chapter 1.17 CODE ENFORCEMENT HEARINGS PROCEDURES
1.17.010. Applicability, exception.
1.17.020. Definitions.
1.17.030. Hearings officers.
1.17.040. Instituting civil penalty proceedings.
1.17.050. Notice of violation and proposed civil penalty.
1.17.060. Service of notice.
1.17.070. Setting the hearing, continuances.
1.17.080. Discovery and disclosure.
1.17.090. Hearings and decisions.
1.17.100. Penalty amounts and other orders by the hearings officer.
1.17.110. Collection of civil penalties.
1.17.120. Final decision.
1.17.010. Applicability, exception.
A. Unless another procedure is expressly provided for, this chapter governs the procedure for
the assessment of civil penalties authorized by the code.
B. In all cases, a civil penalty is in addition to any other legal remedy available to redress
violations of the code.
C. This chapter does not apply to proceedings before and civil penalties imposed by the Animal
Control Board of Supervisors.
(Ord 2011-023 §4, 2011)
1.17.020. Definitions.
As used in this chapter, unless the context requires otherwise:
Notice means the notice of violation and proposed civil penalty issued to a violator under DCC
1.17.040.
Violator means a person to whom a notice has been issued.
Hearings officer means a person designed under DCC 1.17.030 to adjudicate civil penalty
proceedings.
Code enforcement official means a person designated as such under DCC 1.16.080(A) or in the
case of enforcement of the Fire Code, a fire chief or the fire chief's designee.
County means Deschutes County. Proceedings to enforce provisions of the Fire Code pursuant to
this chapter shall be commenced in the name of the County.
Person means any individual, partnership, corporation, or association.
Chapter 1.17 1 (06/2011)
Page 1 of 7 — Exhibit B to Ordinance 2011-023
1.17.030. Hearings officers.
A. The Board of County Commissioners shall designate one or more hearings officers to
adjudicate civil penalty proceedings under this chapter.
B. Hearings officers may administer oaths in connection with their duties as hearings officers.
(Ord 2011-023 §4, 2011)
1.17.040. Instituting civil penalty proceedings.
A. Civil penalty proceedings may be instituted by the county official responsible for administering
the county code provisions believed to be violated, a peace officer, or any other person
specifically authorized by ordinance to institute civil penalty proceedings.
B. Civil penalty proceedings are instituted when a notice of violation and proposed civil penalty is
served on the violator as required by this chapter.
(Ord 2011-023 §4, 2011)
1.17.050. Notice of violation and proposed civil penalty.
A. The notice of violation and proposed civil penalty shall be on a form approved by Deschutes
County Legal Counsel.
B. Notices shall contain the following:
1. The name of the violator;
2. The sections of the code allegedly violated. If the applicable county code section(s)
incorporate a state statute, rule, uniform code (such as the building code), or other source of
law, the notice shall also contain citations to the sections of the applicable code, statute, or
rule;
3. A brief description of the violation in such a manner as can be readily understood by a
person making a reasonable effort to do so;
4. The date or range of dates for which the violator is believed responsible for the violation;
5. The location of the violation;
6. The amount of the proposed civil penalty;
7. Statements which advise the violator, in ordinary, nontechnical language of the following:
a. The violator's right to a hearing;
b. The date, time and location of the hearing;
c. The procedures for requesting that the hearing be rescheduled;
d. The procedures at the hearing;
e. The requirement that the violator appear in person at the hearing or submit a written
statement in lieu of appearing in person; and
f. That if the violator does not appear in person at the hearing or does not submit a written
statement in lieu of appearing in person:
i. the full amount of the proposed civil penalty will be assessed;
ii. the violator will be ordered to correct the violation;
iii. Failing to pay a civil penalty or correct a violation after having been ordered or
required to do so is a separate violation of the code and subjects the violator to
Chapter 1.17 2 (06/2011)
Page 2 of 7 — Exhibit B to Ordinance 2011-023
additional civil penalties, court action, liens, garnishments, interest charges, and
other involuntary collection remedies.
8. The date the notice was issued;
9. The address at which the violator may submit to the county written materials related to the
notice; and
10. The name, title, and signature of the person issuing the notice.
C. Corrections.
1. Any errors or omissions in the notice may be corrected at the hearing or at any time prior
thereto.
2. The violator is entitled to be notified of any amendments or corrections to the notice.
D. A violator claiming that an error or omission in the notice constitutes a defense or that the
notice should be set aside shall advise the hearings officer of the claimed error or omission
prior to the close of the hearing and request the notice be set aside.
1. Failure to request that the hearings officer set aside the notice due to an error or omission
constitutes a waiver and will be an absolute bar to raising the issue at any later time or on
appeal.
2. A notice may be set aside by a hearings officer only if the violator is prejudiced by the error
or omission.
3. If the hearings officer sets aside a notice due to an error or omission, the county may
reinstitute civil penalty proceedings based upon the same conduct, condition, or
circumstance alleged in the notice which the hearings officer set aside.
E. Legal Counsel may approve a form that contains information in addition to the information
required by subsection (B) of this section.
(Ord 2011-023 §4, 2011)
1.17.060. Service of notice.
A. Service of a notice of violation shall be accomplished in any manner reasonably calculated,
under all the circumstances, to apprise the violator of the existence and pendency of the
proceedings and give the violator an opportunity to appear and defend.
B. The violator may be served with the original notice or a copy thereof.
1. Copies need not be certified true copies.
2. The following methods of service are presumed to be reasonable under subsection (A) of
this section:
a. By personal delivery of the notice on the violator;
b. By mailing the notice to the violator by first class mail and by any of the following:
certified, registered, or express mail.
i. Mail sent certified, registered, or express mail shall be sent with return receipt
requested.
ii. For purposes of this section "first class mail" does not include any form of mail
which may delay or hinder actual delivery of mail to the addressee;
d. By personal service on a registered agent, officer, director, general partner, or
managing agent of a corporation, limited partnership or personal service upon any clerk
on duty in the office of the registered agent;
Chapter 1.17 3 (06/2011)
Page 3 of 7 — Exhibit B to Ordinance 2011-023
e. By posting a copy of the notice in a conspicuous location upon the apparent main
entrance to the dwelling or property and by mailing first class mail copies of the notice
to the property and the address of the owner currently on file with the county tax
collector.
C. Service shall be deemed complete when personal service is accomplished or in the case of
posted or mailed service the date on which the violator signs a receipt for delivery or 7 days
after the mailing, whichever occurs first.
(Ord 2011-023 §4, 2011)
1.17.070. Setting the hearing, continuances.
A. The date, time and location of the hearing shall be set forth on the notice of violation.
B. The county or the violator may request that the hearing be rescheduled.
C. Requests by the violator to reschedule must be in writing and delivered to the county at the
address designated on the notice.
D. Except as otherwise provided in this section, requests to reschedule may be delivered by
facsimile transmission, but not by e-mail.
E. Requests to reschedule the hearing must be made at least 2 business days prior to the hearing
date.
F. Requests by the County to reschedule the hearing.
1. Request by the County to reschedule the hearing must be made in writing to the hearings
officer with a copy served upon the violator.
2. If the county's request to reschedule is made 7 or more days prior to the hearing the County
may serve the violator by first class mail, otherwise, service must be made in accordance
with DCC 1.17.050.
3. Requests by the County to reschedule must include reasons for the request and the
violator's position on the request.
4. If the County was unable to contact the violator for his or her position, the request must
state the efforts made to obtain his or her position.
5.
G. Decisions on requests to reschedule the hearing submitted within 60 days from the date the
notice of violation is served will be made by the following officials:
1. For violations of the building code, decisions regarding whether or not to grant violator's
request to reschedule a hearing shall be made by the building official or the building
official's designee.
2. For violations of the fire code, decisions regarding whether or not to grant violator's
request to reschedule a hearing shall be made by the fire chief for the district in which the
violator's real property is located or the fire chief designee.
H. Decisions on requests to reschedule the hearing submitted more than 60 days from the date the
notice of violation is served will be made by the hearings officer.
I. Decision on reschedule request.
1. The person making the decision on the rescheduling request shall consider only the
violator's written request to reschedule and information within the file which is available to
the violator.
2. The decision denying the request to reschedule must contain a brief statement of the
reasons for the denial.
Chapter 1.17 4 (06/2011)
Page 4 of 7 — Exhibit B to Ordinance 2011-023
3. A decision granting a rescheduling request shall contain the date, time and location of the
rescheduled hearing
4. Decisions on rescheduling requests will be mailed to the violator by first class mail.
(Ord 2011-023 §4, 2011)
1.17.080. Discovery and disclosure.
Discovery in proceedings under this chapter is governed by ORS 135.805 to 135.873.
(Ord 2011-023 §4, 2011)
1.17.090. Hearings and decisions.
A. The hearings officer shall preside over hearings under this chapter and may set reasonable rules
of procedure designed to facilitate orderly and efficient presentation of evidence provided the
rules do not conflict with this chapter.
B. Except as otherwise provided in this section, the violator must appear in person at the hearing.
C. If the violator is an individual, he or she may submit a written statement in lieu of personal
appearance in accordance with subsection (E) of this section.
D. Violators who are not individuals must designate a director, officer, managing agent, member,
or employee who has the authority to act on the violator's behalf and to give sworn testimony
on the violator's behalf.
1. The designee must appear in person at the hearing.
2. The hearings officer may require the designee to testify under oath to establish his or her
authority.
E. Statements in lieu of appearance.
1. A written statement in lieu of personal appearance must be signed by the violator or on
behalf of the violator and received by the county at the address on the notice at least 1
business day prior to the hearing.
2. Statements may be delivered via facsimile transmission, but not by email.
F. Except as provided in subsection (K) of this section, all testimony must be given under oath.
G. Hearings on notices involving the same person or persons, the same parcel of property, or
common issues of fact or law may be consolidated and heard in a single proceeding;
I. The Oregon Rules of Evidence do not apply to hearings conducted pursuant to this chapter.
1. Any relevant evidence shall be admitted if it is of the type of evidence on which
responsible persons are accustomed to rely in the conduct of serious affairs, regardless of
the existence of a common law or statutory rule which might make improper the admission
of such evidence over objection in civil actions in courts of competent jurisdiction in this
State.
2. Although relevant, evidence may be excluded if the hearings officer determines its
probative value is substantially outweighed by considerations of undue delay or needless
presentation of cumulative evidence.
J. The county may be represented by a fire chief for violations of the Fire Code, by a code
enforcement official for violations of other than the Fire Code, by legal counsel or assistant
legal counsel, by a peace officer, or by any person so authorized by a county department head
or fire chief.
K. Violator represented by an attorney.
Chapter 1.17 5 (06/2011)
Page 5 of 7 — Exhibit B to Ordinance 2011-023
1. The violator may be represented by an attorney licensed to practice law in Oregon or may
represent himself.
2. The appearance of an attorney does not alter the requirement that the violator be personally
present at the hearing.
L. If the violator has personally appeared at the hearing or timely delivered a written statement in
lieu of personal appearance, the county shall proceed first and have the burden of establishing
the violations by a preponderance of evidence.
1. The violator proceeds second and, if personally present, may question the county's
witnesses, present testimony and evidence and make argument.
2. If the violator is not personally present, the hearings officer may not consider any
testimony, argument or evidence on behalf of the violator apart from the violator's written
statement.
3. The county's representative may question the violator's witnesses. The county may offer
rebuttal testimony or argument or both at the discretion of the hearings officer.
M. Penalty only hearing.
1. If the violator admits the violation and requests to be heard only on the issue of the penalty,
the hearings officer may decide to proceed informally and dispense with sworn testimony.
2. In such cases, the hearings officer shall proceed in any manner which provides the county
and the violator a full and fair opportunity to be heard on the issue of the penalty.
N. If the violator fails to appear at the hearing and has not submitted a written statement in lieu of
appearance, the hearings officer shall close the hearing and issue a decision assessing the
proposed civil penalty and ordering the violator to correct the violation immediately.
O. Decisions of the hearings officer shall be written and issued within fourteen (14) days from the
date of the hearing.
1. A decision is issued when it is mailed to the violator first class mail or delivered to the
violator in person.
2. If the preponderance of evidence establishes one or more of the violations alleged in the
notice, the decision shall briefly state the facts which constitute each violation.
3. If the preponderance of evidence does not establish one or more of the violations alleged in
the notice the decision shall so state.
4. The decision shall advise that the violator may seek judicial review by filing a petition for a
writ of review with the circuit court within 60 days of the date of the decision.
P. Orders imposing a civil penalty and orders to correct a violation take effect upon personal
delivery to the violator or upon mailing, whichever occurs first.
(Ord 2011-023 §4, 2011)
1.17.100. Penalty amounts and other orders by the hearings officer.
A. The hearings officer shall impose a civil penalty for each violation established.
1. The amount of the civil penalty shall be the amount proposed in the notice of violation
unless the hearings officer finds based upon the evidence or statements of the violator that a
lesser civil penalty is required to avert an injustice.
2. A decision imposing a lesser penalty shall state with particularity the reasons why a lesser
penalty is justified under this section.
Chapter 1.17 6 (06/2011)
Page 6 of 7 — Exhibit B to Ordinance 2011-023
3. A hearings officer may order the civil penalty be paid immediately or at some other definite
time.
B. In addition to any civil penalty imposed, the hearings officer shall order the violator to correct
each violation.
1. If the violator did not appear at the hearing or submit a written statement in lieu of personal
appearance, the order shall require the violator to correct the violation immediately.
2. Otherwise, the violator shall be ordered to correct the violation within a definite period.
3. The hearings officer may order the violator to take specific corrective action if the hearings
officer determines that doing so would facilitate compliance with the code.
C. A failure to correct a violation as ordered by the hearings officer or pay a civil penalty when
due is subject to a civil penalty of up to $500.00 for each day the violation is not corrected or
civil penalty is not paid.
(Ord 2011-023 §4, 2011)
1.17.110. Collection of civil penalties.
A. Unless otherwise ordered by the hearings officer, civil penalties are due immediately.
B. Unpaid civil penalties accrue interest at a rate of 9% per annum.
C. The county has a lien on the real property where the violation occurred and on any real
property in Deschutes County owned by the violator for the amount of a civil penalty plus
accrued interest.
D. The county may record the hearings officer decision in the county lien records at any time after
60 days from the date the decision was issued.
E. The lien referred to in subsection (B) of this section attaches when the decision is mailed or
personally delivered to the violator, whichever occurs first.
1. An order granting a violator time within which to pay a civil penalty does not affect the
county's lien.
2. In all cases, the lien is for the full civil penalty together with accrued interest regardless of
when payment is due.
(Ord 2011-023 §4, 2011)
1.17.120. Final decision.
The decision of the hearings officer is the final decision of the county.
(Ord 2011-023 §4, 2011)
Chapter 1.17 7 (06/2011)
Page 7 of 7 — Exhibit B to Ordinance 2011-023