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HomeMy WebLinkAboutOrdinance-2007-1385 TITLE: CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER STITES Council Bill No. 04 Ordinance No. --1385 Series of 2007 AN ORDINANCE AMENDING CHAPTER 2 OF THE WHEAT RIDGE CODE OF LAWS TO INCLUDE A NEW ARTICLE V, CONCERNING THE ADMINISTRATIVE MODEL PROCESS OF CERTAIN CODE OF LAWS PROVISIONS, AND AMENDING CHAPTER 15 OF THE WHEAT RIDGE CODE OF LAWS TO PROVIDE THAT A NOTICE OF VIOLATION ISSUED PURSUANT TO CHAPTER 2, ARTICLE V, SHALL CONSTITUTE A NOTICE TO ABATE A NUISANCE WHEREAS, the City Council finds that the violation of certain provisions of the City's Code of Laws (the "Code") affects the livability of the City's neighborhoods and that residential, commercial and industrial neighborhoods in the City each experience problems with such violations; and WHEREAS, the City Council wishes to encourage compliance with ordinances that affect the quality of life in the City by requiring those who violate said ordinances to bear the cost of enforcement; and WHEREAS, the City Council finds that increased enforcement of these ordinances would benefit the residents and businesses of the City;.and WHEREAS, the City Council finds that there is a need for an alternative method of enforcement for certain specified violations of the Code; and WHEREAS, the City Council further finds that an appropriate method of enforcement for such violations is an administrative citation program which imposes administrative penalties for certain violations of the Code; and WHEREAS, the City Council further finds that certain amendments should be made to the Code to accommodate the addition of the administrative citation program; and WHEREAS, the City Council wishes to amend Chapter 2 of the Code to include a new Article V to allow for the administrative enforcement of the Code and to amend Section 15-8 of the Code to provide that a notice of violation served pursuant to the administrative enforcement article shall constitute service of a notice to abate; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Chapter 2 of the Code, entitled "Administration," is hereby amended by adding a new Article V, Administrative Enforcement, as follows: ARTICLE V. ADMINISTRATIVE ENFORCEMENT Sec. 2-80. Purpose; scope The purpose of this Article is to encourage prompt compliance with this Code and prompt payment of penalties for violations thereof. This Article provides for administrative penalties that may be imposed for violation of the following portions of this Code: Chapter 5, Buildings and Building Regulations; Chapter 13, Motor Vehicles and Traffic; Chapter 15, Nuisances; Chapter 26, Zoning. Sec. 2-81. Definitions. For the purposes of this Article the following terms shall have the meanings assigned to them below. A. "Administrative Hearing Officer" or "AHO" means the person with exclusive authority to hear appeals from administrative citations issued under this Ordinance. B. "Applicable sections" means those sections in the Code of Laws contained within the Chapters listed in Section 2-80. C. "Code officer" shall mean the City Manager or the City Manager's designee, including but not limited to a community service officer, the building official, the property inspector or any other city official or employee charged with enforcing the provisions of this Article. D. "Manager" shall mean the City Manager or the City Manager's designee. E. "Municipal Court" means the Municipal Court for the City of Wheat Ridge, Colorado. F. "Responsible party" shall mean a person or entity who has violated this Code or, in the case of property subject to an administrative citation under this Article, who has possession or control of any real property or premises, whether as owner, occupant or tenant, or in the case of a motor vehicle, as owner or operator of the same. Sec. 2-82. Authority. 2 (a) Any Responsible Party violating applicable sections may be issued an administrative citation by a code officer as provided in this Article. (b) Notwithstanding any other provision of this Code, responsible parties cited under the provisions of this Article shall have only the appeal rights granted herein. (c) Administrative citations shall be issued only after the responsible party has received a notice of violation and has been given time to comply as stated in the notice of violation. (d) Each day a violation exists or continues shall constitute a separate and distinct violation for which a separate administrative citation may be issued. However, once an administrative citation has been issued for a violation of an applicable section, no additional administrative citation shall be issued for the same violation for ten days or, if the responsible party appeals, until after the appeal has been heard and the responsible party has not complied with an order of the Administrative Hearing Officer within ten (10) days of its issuance or such other time as the AHO has specified. (e) A fine assessed by means of an administrative citation issued by the code officer shall be payable directly to the Office of the City Treasurer, and if not timely paid, shall be collected in accordance with the procedures specified in this Article. (f) Enforcement actions for violations of applicable sections are intended to be alternative in nature. At anyone time, the City may pursue a civil, criminal, or administrative action against a responsible party. The City may also choose to pursue an alternative action upon staying the original action. Sec. 2-83. Notice of violation. (a) Upon becoming aware of a violation of an applicable section, a code officer may issue a notice of violation to the responsible party. The notice shall state the date and location of the violation, the approximate time the violation was observed, identifying, where applicable, the property in violation by address or legal description. The notice shall refer to the applicable section violated, describe the violation, and describe the action required to correct the violation. The notice shall require the responsible party to correct the violation within ten (10) days, and shall explain the consequences of failure to correct said violation, including the issuance of an administrative citation. (b) Service of a notice of a violation on the responsible party shall be by any of the following means: 3 1. If the responsible party resides at the site of the violation, the code officer may personally deliver a copy of the notice of violation to the responsible party at that site; or 2. A copy of the notice may be mailed by first class mail to the last known address of the responsible party as reflected in the county real estate records; or 3. A copy of the notice of violation may be posted in a conspicuous place on the unoccupied premises. Sec. 2-84. Administrative citation. (a) If the responsible party has failed to correct the violation noted in the notice of violation within the time provided on such notice, a code officer may issue an administrative citation to the responsible party on a form approved by the City Manager (b) The code officer may require that the responsible party provide evidence of identity and residential or working address. (c) The code officer shall attempt to issue the administrative citation to the responsible party at the site of any violation. The code officer may issue the administrative citation to the responsible party by the methods described in Section 2-83, subsection (b), above. (d) The code officer shall attempt to obtain the signature of the person receiving the administrative citation on the citation. If that person refuses or fails to sign the administrative citation, the failure or refusal to sign shall not affect the validity of the citation and subsequent proceedings. (e) Notice shall be deemed served on the earliest of: (i) the date of receipt by the responsible party, if personally served; (ii) the fourth day after the mailing of the administrative citation; or (iii) the date the administrative citation was posted. Sec. 2-85. Contents of administrative citation. (a) The administrative citation shall state the location of the violations and the date and approximate time the violations were observed. Where applicable, the administrative citation shall identify the property in violation by address or legal description. (b) The administrative citation shall refer to the applicable sections violated and describe the violations. (c) The administrative citation shall describe the action required to correct the violations. 4 (d) The administrative citation shall require the responsible party to correct the violations immediately and shall explain the consequences of failure to correct said violations. (e) The administrative citation shall state the amount of fine imposed for the violations. (f) The administrative citation shall explain how the fine shall be paid, the time period by which it shall be paid, and the consequences of failure to pay the fine. (g) The administrative citation shall briefly state the process for appealing the administrative citation. (h) The administrative citation shall contain the signature of the code officer and the signature of the responsible party if it can be obtained. Sec. 2-86. Appeal of administrative citation. (a) A person served with an administrative citation may file a notice of appeal within five (5) calendar days from the service of the administrative citation. Compliance with this time limit shall be a jurisdictional prerequisite to any appeal brought under this Article, and failure to comply shall bar any such appeal. (b) The notice of appeal shall be made in writing and shall be filed with the Municipal Court in person, by facsimile transmission or by mail. Regardless of the manner of filing such appeal, the notice of appeal must be filed with the Municipal Court within five (5) calendar days from the date the administrative citation was served. (c) As soon as practicable after receiving the written notice of appeal, the Municipal Court shall assign an AHO who shall schedule a date, time and location for the hearing. (d) Written notice of the date, time and location of the hearing shall be personally served upon or sent by first class mail to the responsible party at least five (5) calendar days prior to the date of the hearing. The hearing shall be held no more than fourteen (14) days after the date upon which the administrative citation was issued. (e) In computing the day a notice of appeal must be filed or the day by which a hearing must be held, the first day is excluded and the last day is included. If the last day of any period is a Saturday, Sunday, or legal holiday, the period is extended to the first day thereafter which is not a Saturday, Sunday, or legal holiday. 5 Sec. 2-87. Administrative hearing officers. (a) The Administrative Hearing Officer must be an attorney licensed to practice law in the State of Colorado with a minimum of three years of experience. (b) Any person designated to serve as an AHO is subject to disqualification for bias, prejudice, interest, or for any other reason for which a judge may be disqualified in a court of law. Sec. 2-88. Administrative appeals. (a) Administrative appeals are intended to be informal in nature. Formal rules of evidence and discovery do not apply. The procedure and format of the administrative hearing shall follow the procedures provided in this Section. (b) The parties to an administrative appeal shall be the responsible party and the Wheat Ridge Police Department. Parties may be represented by legal counsel. Each parties may call and question witnesses, cross-examine witnesses and present evidence in support of its case. (c) The AHO, at the request of any party to the hearing, may subpoena witnesses, documents and other evidence where the attendance of the witness or the admission of evidence is deemed necessary to decide the issues at the hearing. All costs related to the subpoena, including witness and mileage fees, shall be borne by the party requesting the subpoena. The form of, and the process for issuing, subpoenas shall be the same as in the Municipal Court. (d) The AHO shall have the power to call and question witnesses, review and consider the relevancy of documentary or other tangible evidence, and rule on evidentiary questions. (e) The only issue to be decided by the AHO is whether the code officer exceeded his/her authority in issuing the administrative citation. The City bears the burden of proof to establish the existence of a violation of the Code. In the case of a nuisance abatement hearing, the City bears the burden of proof to establish the existence of a public nuisance. The City's meeting of this burden of proof shall constitute prima facie evidence that the code officer did not exceed his/her authority. The appellant shall have the burden of rebutting such evidence. (f) The standard of proof required In an administrative appeal is a preponderance of the evidence. 6 (9) Copies, photographs, and photocopies may be admitted into evidence or substituted in evidence in place of original documents. (h) Hearings shall be recorded by electronic means and transcripts of such recordings shall be made at the expense of the party requesting the transcript. (i) Whenever it appears that a petition is not filed within the time permitted by the particular law or ordinance involved, or that the AHO for some other reason lacks jurisdiction, the case may be dismissed on the motion of any party or on the AHO's own motion. U) The decision of the AHO shall be known as an administrative enforcement order. (k) The AHO may uphold the administrative citation and all penalties or dismiss the administrative citation and all penalties or may waive or conditionally reduce the penalties assessed by the administrative citation. The AHO may also impose conditions and deadlines to correct the violations or require payment of any outstanding penalties. (I) In the event that the AHO does not dismiss the administrative citation, the AHO shall assess reasonable administrative costs of not less than one hundred dollars ($100), but not to exceed two hundred dollars ($200). (m)The administrative enforcement order shall become final on the date of mailing the order to the responsible party. A copy of the order shall be provided to the City. Sec. 2-89. Failure to obey subpoena. It is unlawful for any person to refuse to obey a subpoena issued by an AHO. Failure to obey a subpoena constitutes contempt and may be criminally prosecuted and have penalties imposed in the same manner as violation of a Municipal Court subpoena. Sec. 2-90. Failure to attend administrative appeal. Any responsible party who fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the issues related to the hearing, provided that proper notice of the hearing has been provided. Sec. 2-91. Failure to comply with administrative enforcement order It is unlawful for a responsible party who has been served with a copy of the final administrative enforcement order to fail to comply with the order. Failure to comply with a final administrative enforcement order may be criminally 7 prosecuted and have penalties imposed similar to those for failure to comply with an order of the Municipal Court. Sec. 2-92. Penalties assessed. (a) The Manager shall develop guidelines for fines based upon the Manager's assessment of the cost to the City for enforcing the provisions of this Article. Such guidelines shall be approved by the City Council. Thereafter, the Manager shall publish a schedule of fines for administrative citations. The schedule of fines shall be graduated in amount, with the smallest fine being assessed for the first administrative citation and increasingly larger fines for second, third and subsequent administrative citations. No single fine assessed for an administrative citation shall exceed $1,000. The schedule of fines shall be amended no more than once per year. (b) If the responsible party fails to correct the violation, subsequent administrative citations may be issued for violations of the same applicable section. The fine assessed for each administrative citation issued for violations of the same applicable section(s) shall not exceed the amount set in the Manager's schedule of fines regardless of the number of violations per citation. (c) Payment of the fine shall not excuse the failure to correct the violations nor shall it bar further enforcement action by the City. (d) All fines assessed shall be payable to the City of Wheat Ridge. Sec. 2-93. Failure to pay fines (a) The failure of any responsible party to pay the fines assessed by an administrative citation within the time specified on the citation or administrative enforcement order, if an administrative hearing was held, may result in the imposition of a late fee of fifty dollars ($50.00), a twenty percent (20%) charge to defray the cost of collection, and interest at a rate of ten percent (10%) per annum on all unpaid amounts. . (b) In the event of failure to pay all fines assessed, the Manager may refer the matter for collection by whatever means are available to the City. (c) In the case of delinquent charges, assessments or taxes, including fines and the costs of nuisance abatement, the Manager shall, pursuant to C.R.S. S 31-20-105, certify the same to the treasurer of the county to be collected and paid over by the treasurer of the county in the same manner as taxes are collected. 8 (d) An action or other process provided by law may be maintained by the City to recover or collect any amounts, including late fees, interests, and administrative costs, owing under this article. Section 2. Section 15-8. Abatement, subsection (a) is hereby amended as follows: a) Notice to abate. Any authorized city officer, upon the discovery of any nuisance on public or private property in the city, may, in the exercise of his discretion, notify the responsible party in writing, requiring the responsible party to remove and abate from the property the thing or things therein described as a nuisance. SERVICE OF A NOTICE OF VIOLATION BY A CODE OFFICER PURSUANT TO SECTION 2-83 OF THIS CODE SHALL BE CONSIDERED SERVICE OF A NOTICE TO ABATE AND THE CITY MAY BEGIN THE ABATEMENT PROCESS WITH THE APPLICATION FOR ABATEMENT ORDER. For any nuisance which does not threaten eminent danger of damage or injury, and for which a discretionary notice to abate has been issued, the reasonable time for abatement shall not exceed seven (7) days unless it appears from the facts and circumstances that compliance could not reasonably be made within seven (7) days or that a good faith attempt at compliance is being made. Section 3. Safety Clause. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Wheat Ridge, that it is promulgated for the health, safety, and welfare of the public and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 4. Effective Date. This Ordinance shall take effect On June 15, 2007, as permitted by the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on this 23rd day of April , 2007 ordered published in full in a newspaper of general circulation in the City of Wheat Ridge and Public Hearing and consideration on final passage set for May 14 , 2007, at 7:00 o'clock p.m., in the Council Chambers, 7500 West 29th Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of 8 to 0 ,this 14th day of May ,2007. 9 or on this ED by the May SIGN 2007. ATTEST: ~ /d..J City Clerk M4.chael Sn0lf , 2007 April 26, t. n' 7 2007 . t Publica 10.. . May 1 . Firs Publication.. secondR'dge Transcript 15 2007 Wheat I . June . Effective Date. 15th May day of -'1~-,),' II> / / ~ . " J.;{,tCt.0 Lf') /,/- J1ry~rTUlliO, Mayor - To ~Z~.y - A~0A _ ~-<<d hi CitYAttorney Gerald E. Da , 10