[1]
Editor's Note: Section 2 of Ord. No. 2013-324 provides:
Section 2. Conflicting provisions within any of the following sections
or chapters of the Davenport Municipal Code are superseded by the
provisions contained in Chapter 2.86: Chapter 5.01, Section 5.06.130,
Chapter 5.22, Chapter 6.04, Chapter 8.12, Chapter 8.14, Chapter 8.15,
Chapter 8.16, Chapter 8.17, Chapter 8.19, Chapter 8.50, and Chapter
10.76.
[Ord. 2013-324 § 1 (part)]
It is the purpose and intent of the City Council to establish
rules and procedures for the conduct of administrative hearings required
by this municipal code in order to insure administrative due process
is accorded to affected parties. The provisions of this chapter shall
apply to administrative appeals as provided throughout the City code
except for administrative appeals filed in conjunction with any state-mandated
appeal procedure or administrative appeals filed regarding Chapter
13.16 Wastewater Facilities and all of Title 15 - Buildings and Construction.
[Ord. 2018-269 § 1; Ord. 2013-324 § 1
(part)]
A.
Any person who has received notice from
any authorized department of the City may have an administrative appeal
before a hearing officer to determine whether the evidence presented
establishes the validity of the code violation alleged in the notice,
whether the costs or fees imposed should be upheld or reduced, whether
a nuisance exists, or similar adjudicatory findings. Such written
request shall be submitted to the City of Davenport legal department
within 14 days or as otherwise provided in the notice from the date
of service of the notice and order or notice of violation. The written
request shall state the name and address of the person requesting
the hearing to which all further notices shall be mailed or served
and shall state the basis for the appeal.
B.
The person requesting an appeal may have
their appeal heard at an external adjudication hearing or at a City
representative adjudication hearing. The fee for an external adjudication
hearing is $100 and must be paid at the time of filing the written
request for an appeal. No fee shall be collected for a City representative
adjudication hearing, but the right to a later external adjudication
hearing on the same matter is waived.
C.
Any authorized department of the City may
initiate an external adjudication hearing by forwarding a copy of
a notice of violation, notice and order or notice of hearing, which
has been properly served, to the City Clerk. Initiation of an administrative
hearing in this manner shall not require an administrative hearing
fee to be paid at the time of the request.
D.
Failure to request a hearing within 14
days from the date of the mailing of the notice and order, notice
of violation, notice of costs or billing for costs shall be deemed
to constitute waiver of the right to a hearing and it will be thereafter
judged that the allegation(s) contained in the notice and order or
similar notice shall be considered to be factually true, and binding
and enforceable upon all parties henceforth.
[Ord. 2018-269 § 2]
A.
A person may request and receive waiver
of the administrative hearing fee established in Section 2.86.020A
if the person has an income level at or below 125% of the United States
poverty level as defined by the most recently revised poverty income
guidelines published by the United States Department of Health and
Human Services.
B.
A determination of whether a person is
granted a waiver of administrative hearing fee shall be made on the
basis of an affidavit of financial status and supporting documentation
submitted at the time of the person's request for the hearing. The
affidavit shall be signed under the penalty of perjury and shall contain
sufficient information and be attached with sufficient supporting
documentation to allow the determination to be made of whether the
person should be granted a waiver of administrative hearing fee. Sufficiency
shall be determined in the sole discretion of the reviewing party.
For purposes of the determination of income, a person's spouse's income
shall be included in the calculation.
C.
If the person is entitled to an appeal
based on their ownership rights in a particular piece of property,
the person must provide proof of ownership. Any other person with
an ownership interest shall also comply with the requirements of this
section.
D.
In making the determination of a person's
ability to pay for the administrative hearing fee, the person's income
is considered and the reviewing party may also consider the availability
of any assets subject to execution, including but not limited to cash,
personal property, stocks, bonds, real property, and any other property
which may be applied to the satisfaction of judgments and the seriousness
of the charge or nature of the case.
E.
The determination of the waiver of administrative
hearing fee should be in writing sent to the person requesting such
waiver by regular mail, hand delivery, or as mutually agreed upon
in advance within 10 days after the request is received.
F.
If the hearing fee waiver is denied, the
time period within which the person may request an administrative
hearing shall be the time period set forth in Section 2.86.020A or
10 days from the date the notice of denial was sent, whichever is
later.
G.
The External Hearing Officer may apply
the hearing fee to the appellant if the appellant is unsuccessful
in their appeal and may apply the costs to the appellant if the appellant
defaults as defined in 2.86.050.
[Ord. 2018-269 § 3; Ord. 2013-324 § 1
(part)]
A.
The hearing should be held as soon as practicable,
striving to set the hearing within the timeframe encompassing five
days after the date of the request for hearing and 60 days after the
date of the request for hearing. The person requesting the hearing
should be notified in writing of the date and place of the hearing
at least three days in advance thereof. Notice of the date and place
of the hearing shall be mailed to the person requesting the hearing
by first class mail to the address provided on the request to appeal
or as mutually agreed upon in advance.
B.
In an emergency situation or in a situation
involving the impoundment of an animal or a vehicle, the hearing shall
be scheduled as soon as practicable without being subject to the minimum
five day scheduling limitations imposed by the prior section. For
purposes of this section, "emergency situation" means any situation
that could reasonably constitute a threat to the public health, safety
or welfare.
[Ord. 2018-269 § 4; Ord. 2013-324 § 1
(part)]
A.
Before any administrative hearing may be
conducted as provided for in this chapter, the parties shall be afforded
notice as provided for in this section or in Section 2.86.030.
B.
Unless otherwise provided by a specific
provision of the code, the authorized department issuing a notice
and order or notice of violation shall specify therein the following
information:
1.
The name of the department and the
name of the enforcement officer from said department involved in the
enforcement action for which the notice was sent;
2.
The name and address of the person
charged with the violation;
3.
The date, time, and place of the
violation;
4.
The section(s) of the code which
are alleged to be violated;
5.
A statement that the recipient of
the notice may request a hearing by submitting a written request for
administrative appeal hearing to the City Clerk within 14 days of
the date of the mailing of the notice or as otherwise provided in
the notice.
C.
In the event the City abated a nuisance
or removed solid waste, abandoned or other similarly offensive or
dangerous property due to an emergency situation, a notice shall be
given of the right to a hearing regarding the necessity of the emergency
abatement and/or the costs incurred in resolving the emergency situation.
Such notice shall contain the following information:
1.
A description, to the extent possible,
of the conditions which constituted the nuisance or emergency situation;
2.
A description of the location of
the nuisance or emergency situation;
3.
A statement that the City entered
onto said real estate or public right-of-way and caused the nuisance
or emergency situation to be abated by the removal of it or by other
remedial act, and that the costs of the removal or remediation will
be assessed against the real estate from which the removal or remediation
occurred or against the real estate abutting the public right-of-way
where the nuisance or emergency situation existed, for collection
in the same manner as a property tax or as a personal judgment.
4.
An itemization of the costs incurred
in the removal or remediation;
5.
That the person notified or the person's
duly authorized agent may file a written request for hearing as set
forth in this chapter.
6.
That failure to request a hearing
within 14 days of the mailing of the notice or within the time frame
as otherwise stated in the notice shall be considered a waiver of
the right to a hearing and it will be thereafter conclusively presumed
that the nuisance existed and the costs incurred by the City are valid
and will be assessed against the property or abutting property without
further notice.
D.
Unless otherwise provided, whenever a notice
of abatement or notice and order to correct a violation is required
to be given under the municipal code the notice shall be served by
one of the following methods: (1) by personal service, (2) by certified
mail, postage prepaid, return receipt requested, or (3) as mutually
agreed upon in advance. Notice shall be mailed to the last known address
of the person to be notified according to the records of the City
of Davenport. If the notice concerns real property, the notice shall
be mailed to the last address shown on the Scott County Treasurer's
records. If service cannot be made by personal service or mailing,
service may be made by posting the notice conspicuously on or in front
of the property. For posting to be effective the enforcement department
must be able to demonstrate three failed attempts to effect service
by personal service within the three days for an emergency or 15 days
for a nonemergency case.
E.
Posting notice or duplicate service by
regular mail shall be deemed effective on the third day after posting
or mailing; service by certified mail shall be deemed effective as
of the date of the signed receipt. Personal service is effective on
the date of service.
F.
The failure of any party or person with
an interest in the property or proceeding to acknowledge notice that
has been duly served, sent or posted in accordance with this section
shall not affect the validity of any proceedings taken under this
chapter.
G.
Proof of service of any notice required
may be made by certificate or affidavit of an officer or employee
of the City or by affidavit of any person over the age of 18 years.
The proof of service shall show that service was done in conformity
with this code or Iowa Court rules for service of process.
[Ord. 2018-269 § 5; Ord. 2013-324 § 1
(part)]
B.
Nonemergency. Service of notice of hearing
shall be as provided in the previous section.
C.
Emergency. For any matter that poses an
immediate threat of danger to the health, safety or general welfare
of persons or persons within the City one copy of the notice of hearing
shall be posted at the property address of the violation and one copy
shall be mailed as provided in the previous section; or one copy of
the notice may be personally served.
[Ord. 2018-269 § 6; Ord. 2013-324 § 1
(part)]
A.
Where the person requesting an appeal has
requested an external adjudication hearing, the hearing officer shall
be an attorney who has been licensed to practice law for at least
five years and who is licensed to practice law in the state of Iowa
and in good standing; or an attorney who was licensed to practice
law in the state of Iowa but has recently retired as a member in good
standing; or a judge recently retired from the judicial branch of
the state of Iowa in good standing. Where the person requesting an
appeal has requested a City representative adjudication hearing, the
hearing officer shall be the City Administrator or their designee.
The appellant that may be affected by the decision rendered at the
conclusion of the hearing shall be allowed to select the administrative
hearing officer from a list of possible administrative hearing officers.
If the person or entity elects not to select the administrative hearing
officer from the list or if a hearing is requested pursuant to 2.86.020C,
the hearing officer who shall preside over the hearing shall be the
hearing officer on the list who has not heard an appeal for the longest
length of time and who is otherwise available within the scheduling
limitations established by this chapter. No hearing officer shall
preside over any hearing for which the hearing officer has a conflict
of interest.
B.
The hearing officer shall preside over
all adjudicatory hearings and shall have the following powers and
duties:
1.
To issue subpoenas to secure the
attendance and testimony of relevant witnesses and the production
of relevant documents.
2.
To administer oaths, hear testimony
and receive evidence relevant to the existence of a City code violation;
3.
To preserve and authenticate the
record of the hearing and all exhibits and evidence introduced at
a hearing;
4.
To sign and issue written findings,
decisions and orders concerning issues presented at a hearing.
C.
All hearings are open to the public.
D.
All appellants shall demonstrate proper
decorum and those whose behavior is not disruptive to the hearing
process shall have the right to present testimony and to cross-examine
witnesses.
E.
Parties and witnesses may be questioned
by the administrative hearing officer in order to clarify previous
testimony or to gather information that the hearing officer believes
will be relevant to the decision that has not been otherwise proffered
by either party.
F.
The strict rules of evidence applicable
to judicial proceedings shall not apply to administrative hearings
under this chapter. Evidence may be admitted if it is of a type commonly
relied upon by reasonably prudent persons in the conduct of their
affairs. Official notice may be taken of all matters of which district
courts of the state of Iowa may take judicial notice. Hearsay evidence
may be received at the sole discretion of the hearing officer, but
shall be considered and weighed as the hearing officer deems appropriate
in consideration of relevant evidentiary objections and concerns.
G.
The administrative hearing officer may
grant continuances only upon a finding of good cause.
H.
All testimony shall be given under oath
or affirmation.
I.
The administrative hearing officer may
permit non-party witnesses to submit their testimony by affidavit
or telephone, but shall consider and weigh such testimony as the officer
deems appropriate considering any relevant evidentiary objections.
J.
The administrative hearing officer's decision
shall be established upon proof by a clear and convincing evidence
for all appeals.
K.
The record of any hearing before the administrative
hearing officer shall include: the administrative hearing officer's
notes of testimony presented at the hearing - which may be hand written
or made by tape recording or other appropriate means; all documents
presented and admitted into the record by the administrative hearing
officer; a copy of the notice and order or notice of violation or
other document upon which the hearing is based; and a copy of the
findings and decision of the administrative hearing officer.
L.
Upon the evidentiary record developed at
the hearing and any matter of which judicial notice may be taken,
the administrative hearing officer shall make a determination on the
basis of the evidence presented at the hearing. The determination
shall be made in writing and may be captioned as the "Findings, Decision
and Order" or some similar heading. The determination shall include:
(i) the hearing officer's findings of fact, (ii) a decision resolving
the matter on appeal based upon the findings of fact, and (iii) an
order stating how the parties are to proceed based upon the decision
entered which may include, but are not limited to: imposing a fee,
penalty or lien ordering actions to be undertaken in order to bring
the situation into code compliance, imposing sanctions, expressing
actions that the City may undertake if compliance is not accomplished
within a reasonable time. If the hearing officer finds in favor of
the appellant the hearing officer may award a refund of the administrative
hearing appeal fee. The determination of the administrative hearing
officer is the final administrative decision of the City and binding
upon the City.
M.
In the issuance of a final determination,
the administrative hearing officer shall inform the appellant of his
or her right to seek judicial review of the final determination.
N.
The case for the City may be presented
by any City employee or agent or by an attorney designated by the
Corporation Counsel. The case for the appellant may be presented by
the appellant or by the appellant's attorney.
O.
Both parties involved in a hearing may
present evidence and examine and cross-examine witnesses who testify
at the hearing.
P.
In any proceeding, proof that cleanup of
a particular property occurred as a result of a notice and order or
notice of violation, together with proof that the particular appellant
named was the owner, agent, tenant or lessee of the property upon
which the violation occurred, shall be deemed a rebuttable presumption
that such person was the person who committed the violation alleged
in the notice and order or notice of violation and is responsible
for the cost or billing of such clean up.
Q.
The owner(s), agent(s), contract buyer(s)
tenant(s), or lessee(s) of any residential dwelling, commercial property
or real estate upon whom a notice or billing has been served and upon
which a violation subject to the provisions of this chapter is found,
shall be jointly and severally responsible for compliance and liable
for any damages, costs or liens.
[Ord. 2018-269 § 7; Ord. 2013-324 § 1
(part)]
If at the time set for hearing the
appellant, or his or her attorney of record in the absence of the
appellant, fails to appear, the administrative hearing officer may
find the appellant in default and proceed with the hearing and accept
evidence relevant to the matter and conclude with a finding, decision
and order. A copy of a default order shall be served in any manner
permitted in Section 2.86.030.
An appellant who is found to be in
default may petition the administrative hearing officer to set aside
an order entered by default and request that the administrative hearing
officer set a new hearing date. Such request shall only be granted
upon the appellant's presentation of information sufficient to establish
good cause for the appellant's failure to appear at the time of the
hearing. Good cause is a sound, effective and truthful reason; it
is something more than an excuse, a plea or apology; something beyond
the appellant's control. Omission of proper attention, disregard,
indifference, negligence shall not constitute good cause. Failure
to effect service of notice of a hearing on an appellant who has moved
without notifying the administrative hearing officer of the change
of address does not constitute good cause upon which a default order
may be set aside. Such petition must be filed within 10 days after
the date of the issuance of the order of default unless the administrative
hearing officer determines that the appellant's failure to appear
at the hearing was because the appellant was not provided with proper
service of notice of said hearing. A person will not be entitled to
a waiver of an administrative hearing fee if they have been found
in default at administrative hearings two or more times in the past
when the person has received a waiver of fee for those two hearings
at which they defaulted.
[Ord. 2018-269; Ord. 2013-324 § 1 (part)]
A.
A person violates this chapter if he or
she knowingly failed to comply with an order issued by an administrative
hearing officer under this chapter which has become a final order
by law.
B.
Each day that the violation occurs shall
be considered a separate and distinct offense.
C.
It is an affirmative defense to this section
that a court of competent jurisdiction stayed the order issued by
the administrative hearing officer prior to the effective date of
the order. It is not a defense to this section that a person (1) came
into compliance or attempted to come into compliance with the order
after the date the order, by its terms, required compliance, or (2)
sought judicial review of the order but failed to obtain a stay of
the order prior to the date the order, by its terms, required compliance.
D.
A person convicted of violating this section
shall be punished by the imposition of a fee of not less than $200
and not more than $500. A violation of this chapter may be charged
as a simple misdemeanor offense or a municipal infraction offense.
[Ord. 2013-324 § 1 (part)]
Any decision entered by the administrative
hearing officer shall constitute a final determination and decision
for purposes of judicial review and shall be subject to review as
provided by Iowa law.
[Ord. 2013-324 § 1 (part)]
Proceeding with an administrative
hearing and/or seeking a civil penalty as authorized in this chapter
shall not preclude the City from seeking alternative relief from the
court in the same action or as a separate action, including seeking
an order for abatement or injunctive relief.
[Ord. 2013-324 § 1 (part)]
The administrative hearing officer's
decision shall attach to the appellant as well as to the appellant's
property, if applicable, so that a finding of a code violation against
one person cannot be avoided by conveying or transferring the property
to another person. Any subsequent transferee or owner of the property
takes said property subject to the findings, decision and order of
the administrative hearing officer, which is a matter of public record.
Any cost or fee imposed by the administrative
hearing officer, having become the final decision due to the exhaustion
of or failure to exhaust judicial review procedures, shall be a debt
due and owing to the City and, as such, may be collected in accordance
with applicable law. Any subsequent owner or transferee of property
takes it subject to this debt accordance to state law.
Nothing in this chapter shall be
interpreted to prevent the City from enforcing or seeking to enforce
any order of the court or the administrative hearing officer in any
manner which is in accordance with applicable law.
[Ord. 2013-324 § 1 (part)]
A.
Any fee, penalty, sanction or cost imposed
or any part remaining unpaid after the administrative hearing procedures
shall be a debt due and owing to the City and, as such, may be collected
in accordance with applicable law.
B.
After expiration of the period within which
judicial review may be sought from an administrative hearing officer's
final determination, unless stayed by a court of competent jurisdiction,
the findings, decision and order of the administrative hearing officer
may be enforced.
