The ordinance codified in this chapter shall be known as the "civil infractions ordinance," and may also be referred to herein as "this chapter."
(Ord. 12-01 §1)
A.
The purpose of this chapter is to establish civil procedures for the enforcement of certain provisions of the Tigard Municipal Code (TMC).
B.
The procedures for the judicial enforcement process and the administrative enforcement process established herein are for the purpose of:
1.
Decriminalizing penalties for infractions of certain civil ordinances; and
2.
Providing a convenient and practical forum for the hearing and determination of cases arising out of such infractions.
The civil infractions procedures are intended to be used for all violations of the TMC other than certain violations of Title 7 and Title 10. |
C.
The civil infractions abatement procedures established herein are for the purpose of authorizing the city to proceed to abate such infractions:
(Ord. 12-01 §1)
For the purposes of this chapter, the following definitions shall apply:
means to restore a property to its condition prior to the infraction, or similar condition that is free of the subject infractions. In the case of graffiti, "abate" means to remove graffiti from the public view.
means the city manager or any other city employee designated by the city manager.
means:
The failure to comply with a provision of this code other than certain provisions of Title 7 and Title 10; and
The process of imposing a civil penalty under this chapter.
References to "uniform infraction" throughout the code other than in certain provisions of Title 7 and Title 10 shall be deemed to be references to "civil infraction." |
means the municipal judge or the individual appointed by the municipal judge with the delegated authority to preside over the code enforcement hearings and to perform the related functions as specified by this chapter.
means the individual or individuals appointed or designated by the director of community development or the city manager to enforce the provisions of this chapter. For enforcement of Chapters 10.16 through 10.32, Section 6.02.060 and Chapter 7.60, "code enforcement officer" also includes community service officers of the police department.
means any expenses incurred and charges associated with any action taken by the city under this chapter including but not limited to the cost to the public of the staff time invested and, regarding items confiscated for violation of Sections 6.03.010 and 6.03.020, all expenses incurred and charges associated with the removal, storage, detention, processing, disposition and maintenance thereof.
means the senior financial officer of the city or the designee of the senior financial officer.
means a letter of notification to a responsible party that the city has received a complaint indicating that a violation may exist on the party's property.
means a formal letter or form notifying a respondent or recipient that an administrative fee, administrative costs or costs of abatement have been assessed against them or against property in which they hold an interest.
means a formal letter or form notifying a responsible party that the city has probable cause to believe that a violation has been found to exist on the party's property.
means an order to a respondent or responsible party to abate an infraction from the municipal court as provided in Article II, or from the code enforcement officer as provided in Article III.
means an individual human being and may also refer to a firm, corporation, unincorporated association, partnership, limited liability company, trust, estate or any other legal entity.
means a parcel of land and any improvements on it.
means a person who has received a letter of complaint under the administrative process.
means a person charged with a civil infraction. A respondent will have received a notice of violation or a summons and complaint as provided in Article II or an order to abate as provided in Article III.
means any one of the following:
An owner;
An entity or person acting as an agent for an owner by agreement that has authority over the property, is responsible for the property's maintenance or management, or is responsible for curing or abating an infraction;
Any person occupying the property, including bailee, lessee, tenant or other having possession; or
The person who is alleged to have committed the acts or omissions, created or allowed the condition to exist, or placed the object or allowed the object to exist on the property.
There may be more than one responsible party for a particular property or infraction. |
means failure to comply with a requirement imposed directly or indirectly by this code. "Violation" may also mean civil infraction, except as used in those portions of Title 7 and of Title 10 that do not use the civil infraction procedure.
means an agreement, whether written or verbal, between the city and the recipient or respondent, which is intended to resolve the alleged civil infraction.
(Ord. 12-01 §1)
As used in this chapter, pronouns indicating the masculine gender shall include the feminine and neuter genders; the singular shall include the plural; and "person" shall, where appropriate, include any partnership, corporation, unincorporated association, the State of Oregon or other entity.
(Ord. 12-01 §1)
Any reference to an Oregon state statute incorporates into this chapter by reference the statute in effect on the effective date of the ordinance codified in this chapter.
(Ord. 12-01 §1)
A.
Acts or omissions to act which are designated as an infraction by any city ordinance do not require a culpable mental state as an element of the infraction.
B.
The procedures prescribed by this chapter shall be the exclusive procedures for imposing civil penalties; however, this section shall not be read to prohibit in any way alternative remedies set out in the Tigard Municipal Code which are intended to abate or alleviate code infractions, nor shall the city be prevented from recovering, in any manner prescribed by law, any costs incurred by it in abating or removing ordinance infractions pursuant to any code provision.
C.
The remedies and procedures for abatement of civil infractions provided in this chapter are in addition to all other remedies and procedures provided by law. Nothing in this chapter shall limit or restrict in any way the city's right to obtain abatement by means of a civil infraction, judicial action, an administrative enforcement action, a criminal action, a civil lawsuit or any other form of procedure to obtain abatement.
(Ord. 12-01 §1)
A.
The city shall not be liable to any person for any loss or injury to person or property growing out of any casualty or incident happening to such person or property on account of a property owner, lessee or occupant of property who fails or neglects to promptly comply with the duties imposed by this section.
B.
The city shall be exempt from all liability, including but not limited to common-law liability that it might otherwise incur to an injured party as a result of the city's negligent failure to abate an infraction.
C.
If any property owner, lessee or occupant, by his or her failure or neglect to perform any duty required of him or her by the terms of this section, contributes in causing injury or damages, they shall reimburse the city for all damages or injury it has sustained or has been compelled to pay in such case, including but not limited to reasonable attorney fees for the defense of the same, and such payments as may be enforced in any court having jurisdiction.
(Ord. 12-01 §1)
A.
Citations or complaints issued and filed with the municipal court prior to the effective date of the ordinance codified in this chapter shall be processed in accordance with the provisions in effect at the time the complaint was issued.
B.
Nothing in this chapter shall be construed as a waiver of any prior assessment, bail or fine ordered by the municipal court.
(Ord. 12-01 §1)
The provisions of this chapter are severable. If any section, sentence, clause or phrase of this chapter is adjudged to be invalid by a court of competent jurisdiction, that decision shall not affect the validity of the remaining portions of the chapter.
(Ord. 12-01 §1)
All reports or complaints of infractions covered by this chapter shall be made or referred to an authorized code enforcement officer.
(Ord. 12-01 §1)
A.
Upon receiving a report or complaint or otherwise becoming aware of a violation of this code, the code enforcement officer shall review the facts and circumstances surrounding the alleged infraction and if he or she deems it appropriate will proceed with appropriate enforcement actions.
B.
The code enforcement officer shall not proceed further with the matter if the officer determines that there is not sufficient evidence to support the allegation, or if the officer determines that it is not in the best interest of the city to proceed.
(Ord. 12-01 §1)
The city manager is authorized to draft and adopt administrative rules to define procedures to work with respondents or recipients toward the abatement of civil infractions. Any such administrative rules and regulations shall be adopted pursuant to the provisions of Chapter 2.04, be consistent with this chapter, and shall include the following:
C.
Procedures for review by the civil infractions hearing officer to consider protest by a responsible party of an administrative order to abate consistent with Section 1.16.420.
E.
Procedures for the calculation of administrative fees.
F.
Standards for confidential or anonymous reporting and circumstances in which such reporting is allowed.
(Ord. 12-01 §1)
A.
The city manager or designee may enter property, including the interior of structures, at all reasonable times whenever an inspection is necessary to enforce any regulations of this code, or whenever the city manager or designee has reasonable cause to believe that there exists in any structure or upon any property any condition which constitutes a violation of provisions of this code.
B.
In the case of entry into areas of property that are plainly enclosed to create privacy and prevent access by unauthorized persons, the following steps shall be taken.
1.
The code enforcement officer shall first make a reasonable attempt to locate the owner or other persons having charge or control of the property, present proper credentials and request entry.
2.
If entry is refused or if the owner or other persons having charge or control of the property cannot be located, the code enforcement officer may attempt to obtain entry by obtaining a warrant.
(Ord. 12-01 §1)
A.
A warrant for inspection, investigation, removal or abatement purposes shall only be issued upon cause, supported by affidavit, particularly describing:
1.
The applicant's status in applying for the warrant;
2.
The statute, ordinance or regulation requiring or authorizing the inspection or investigation or the removal and abatement of the violation;
3.
The building or property to be inspected, investigated or entered;
4.
The purpose for which the inspection, investigation, removal or abatement is to be made;
5.
The basis upon which cause exists to inspect, investigate, remove or abate the violation; and
6.
In the case of removal or abatement, a statement of the general types and estimated quantity of the items to be removed or conditions abated.
B.
Cause shall be deemed to exist if:
1.
Reasonable legislative or administrative standards for conducting a routine, periodic, or area inspection or for removing and abating violations are satisfied with respect to any building or upon any property; or
2.
An investigation is reasonably believed to be necessary in order to discover or verify the condition of the property for conformity with regulations; or
3.
There is cause to believe that a violation exists for which removal or abatement is required or authorized by this chapter.
(Ord. 12-01 §1)
A.
Before issuing a warrant, a judge may examine the applicant and any other witness under oath and shall be satisfied of the existence of grounds for granting such application.
B.
If the judge is satisfied that cause for the inspection, investigation, removal or abatement of any infraction exists and that other requirements for granting the application are satisfied, the judge shall issue the warrant, particularly describing:
C.
The warrant shall contain a direction that it be executed on any day of the week between the hours of eight a.m. and six p.m., or where the judge has specifically determined, upon a showing that it cannot be effectively executed between those hours, that it be executed at any additional or other time of the day or night.
D.
In issuing a warrant, the judge may authorize any peace officer, as defined in Oregon Revised Statutes, to enter the described property to remove any person or obstacle and to assist the representative of the city in any way necessary to enter the property and complete the investigation or remove and abate the infraction.
(Ord. 12-01 §1)
A.
In executing a warrant on occupied property the person authorized to execute the warrant shall, before entry into the occupied premises, make a reasonable effort to present the person's credentials, authority and purpose to an occupant or person in possession of the property designated in the warrant and show the occupant or person in possession of the property the warrant or a copy thereof upon request.
B.
In executing a warrant on unoccupied property, the person authorized to execute the warrant need not inform anyone of the person's authority and purpose, as prescribed in subsection A above, but may promptly enter the designated property if it is at the time unoccupied or not in the possession of any person or at the time reasonably believed to be in such condition. In such case a copy of the warrant shall be conspicuously posted on the property.
C.
A warrant must be executed within 10 working days of its issue and returned to the judge by whom it was issued within 10 working days from its date of execution. After the expiration of the time prescribed by this subsection, the warrant unless executed is void.
(Ord. 12-01 §1)
The city manager or designee may cause any items removed pursuant to an abatement warrant to be disposed of in an approved manner whenever the city manager or designee, in his or her sole discretion, finds that the fair and reasonable value of the items at resale would be less than the cost of storing and selling the items. In making the above determination, the city manager or designee may include in the costs of sale the reasonable cost of removing the items to a place of storage, of storing the items for resale, of holding the resale including reasonable staff allowances and all other reasonable and necessary costs of holding the sale.
(Ord. 12-01 §1)
A.
The code enforcement officer may, at any time prior to a first appearance in court, enter into a voluntary compliance agreement with a respondent or recipient. The agreement shall include the time allowed to abate the infraction and shall be binding on the respondent or recipient.
B.
The fact that a person alleged to have committed a civil infraction enters into a voluntary compliance agreement shall not be considered an admission of having committed the infraction for any purpose.
C.
The city shall suspend further processing of the alleged infraction during the time allowed in the voluntary compliance agreement for completion of the necessary corrective action. The city shall take no further action concerning the alleged violation if all terms of the voluntary compliance agreement are satisfied, other than steps necessary to terminate the enforcement action.
D.
Failure to comply with any term of a signed voluntary compliance agreement constitutes an additional and separate infraction which shall be handled in accordance with procedures established by this chapter. After the voluntary compliance agreement has been signed no further notice need be given before a civil infraction summons and complaint based on this infraction is issued. The city may also proceed on the alleged infraction that gave rise to the voluntary compliance agreement.
(Ord. 12-01 §1)
A.
Upon receiving a report or complaint or otherwise becoming aware of a violation of this code, the code enforcement officer may cause a notice of the alleged civil infraction to be given to any responsible party for the property containing the alleged infraction.
B.
Under the judicial enforcement process set forth in Article II, a notice of violation for the alleged civil infraction may be given to the responsible party before a civil infraction summons and complaint is issued for an infraction. Verification of the violation is a requirement for a notice of violation. A notice of violation is not required before a summons and complaint is issued. The use of a notice of violation is at the sole discretion of the code enforcement officer.
C.
Under the administrative enforcement process set forth in Article III, a letter of complaint may be mailed to any responsible party for the property containing the alleged civil infraction. Verification of the violation is not a requirement for issuing a letter of complaint but the issuance of a letter of complaint is a required first step in the administrative process.
(Ord. 12-01 §1)
A.
If a notice of violation or a letter of complaint is given to a recipient or respondent pursuant to this chapter, the code enforcement officer shall give the recipient or respondent a specific timeline within which to cure or to abate the alleged infraction consistent with subsection B of this section.
B.
The time allowed shall not be less than 24 hours for a notice of violation, or five days for a letter of complaint, nor more than 30 days except in cases where compliance is voluntary and the code enforcement officer deems it appropriate to enter into a voluntary compliance agreement with the recipient or respondent.
C.
The code enforcement officer may grant additional time to the respondent if, in the officer's judgment, compliance within the 30-day timeline would constitute a significant hardship to the recipient or respondent or other significant mitigating circumstances exist.
(Ord. 12-01 §1)
A.
Notwithstanding the abatement time periods contained in Section 1.16.140, if the code enforcement officer determines that the alleged infraction presents an immediate danger to the public health, safety or welfare, or that any continuance of the violation would allow the recipient or respondent to profit from the violation or would otherwise be offensive to the public at large, the officer may require immediate remedial action.
B.
If, in such cases, the code enforcement officer is unable to serve a notice of violation or letter of complaint on the recipient or respondent or, if after such service the recipient or respondent refuses or is unable to remedy the infraction, the city may proceed to remedy the infraction as provided in subsection C of this section.
C.
In the case of an immediate danger to the public health, safety or welfare determined under subsection A of this section, the city may abate the infraction and charge the abatement cost back to the recipient or respondent, after obtaining a warrant to enter the property and abate the infraction. If the immediate danger constitutes an emergency threatening immediate death or physical injury to persons, the city may abate the infraction without obtaining a warrant if the delay associated with obtaining the warrant would result in increased risk of death or injury, and may charge the abatement costs back to the recipient or respondent.
(Ord. 12-01 §1)