The purpose of this chapter is to provide an opportunity for a prompt hearing and decision on all enforcement actions for which an appeal to the Hearing Examiner is provided pursuant to Tacoma Municipal Code (“TMC”) Chapter 1.82, Uniform Code Enforcement. The Office of the Hearing Examiner, created pursuant to TMC Chapter 1.23, shall have jurisdiction to hear all appeals filed pursuant to TMC Chapter 1.82 and exercise such authority as provided pursuant to this chapter. The provisions of this chapter are not intended to apply to or replace appeals of administrative land use decisions including, by way of example and not limitation, any administrative order, requirement, permit, decision, or determination on land use proposals made by the Planning Director, or a shoreline permit decisions or exemptions or any other action or land use decision.
(Ord. 28510 Ex. B, 2018-05-15)
A. 
Appeal – Request for hearing.
1. 
Review of civil violation. A person to whom a notice of civil violation is issued pursuant to TMC Chapter 1.82 (“appellant”) may appeal such notice to the Hearing Examiner within ten calendar days after the date the notice of civil violation is served as determined in accordance with TMC Chapter 1.82; provided that, a notice of civil violation issued for a violation of TMC Chapter 13.11, Shoreline Management, or any rule or regulation adopted pursuant to TMC Chapter 13.11, Shoreline Management, or any project permit or approval issued or granted pursuant to TMC Chapter 13.11, Shoreline Management, may be appealed in accordance with the time period and procedures set forth in Chapter 90.58 RCW and Chapter 173-27 WAC, as now or may hereafter be amended.
2. 
Review of compliance order. A person to whom a compliance order is issued pursuant to TMC Chapter 1.82 (“appellant”) may appeal such order to the Hearing Examiner within ten calendar days after the date the notice of compliance order is served as determined in accordance with TMC Chapter 1.82; provided that, a compliance order pursuant to TMC Chapter 13.11, Shoreline Management, or any rule or regulation adopted pursuant to TMC Chapter 13.11, Shoreline Management, or any project permit or approval issued or granted pursuant to TMC Chapter 13.11, Shoreline Management, may be appealed in accordance with the time period and procedures set forth in Chapter 90.58 RCW and Chapter 173-27 WAC, as now or may hereafter be amended. A request for expedited informal review shall not operate to toll the time period for filing an appeal of a stop-work or stop-use order.
B. 
Appeal – Filing.
1. 
Filing; where. A notice of appeal shall be filed in writing with the Office of the City Hearing Examiner during regular business hours by the appellant, or, in the case of a corporation, a duly authorized agent of the appellant. The Hearing Examiner may adopt rules consistent with this chapter allowing electronic filing of a notice of appeal.
2. 
Weekends; holidays. If the final day to file a notice of appeal is on a weekend or holiday, the appeal will be timely if filed before the close of business on the next business day following the holiday or weekend. For purposes of this section, holiday shall mean those weekdays during which the City offices are closed for established holidays.
3. 
Jurisdiction of hearing examiner. The Hearing Examiner shall not have jurisdiction to hear an appeal for which the notice of appeal is not filed within the time periods set forth in this chapter.
4. 
Remission; mitigation. A person to whom a notice of civil violation or compliance order has been issued, which civil violation or compliance order is subject to an application for mitigation or remission which application has been timely filed under the applicable provisions of the TMC, may appeal the underlying notice of violation and/or compliance order, and the decision on the application for mitigation or remission, by filing an appeal within ten calendar days after the date of service of the decision on the application for mitigation or remission.
C. 
Content of notice – Filing.
1. 
Notice of appeal of civil violation. The written notice of appeal of a civil violation and request for hearing shall identify with specificity, (a) the name of the appellant, (b) the mailing address at which the appellant may receive notices related to the hearing, (c) the notice of civil violation sought to be appealed, (d) the violation or violations being appealed, and (e) a statement identifying the relief the appellant is seeking from the Hearing Examiner. If the notice of civil violation is issued in conjunction with a compliance order and the appellant intends to appeal the compliance order, the notice of appeal and request for hearing must also comply with TMC § 1.84.020C.2 below. The notice of appeal shall be signed by the appellant or a duly authorized representative of the appellant,, and in the case of a corporation, a duly authorized agent of the appellant.
2. 
Compliance order. The written notice of appeal of a compliance order and request for hearing shall identify with specificity, (a) the name of the appellant, (b) the mailing address at which the appellant may receive notices related to the hearing, (c) the compliance order sought to be appealed, (d) the parts of the order that the appellant alleges are in error, (e) a concise statement of each alleged error(s) of law and/or error(s) of fact that form the basis for the appeal, (f) a concise statement of facts upon which the appellant relies to sustain the statement of error, and (g) a statement identifying the relief the appellant is seeking from the Hearing Examiner. If the compliance order is issued in conjunction with a notice of civil violation and the appellant intends to appeal the notice of violation, the notice of appeal and request for hearing must also comply with TMC § 1.84.020C.1 above. The notice of appeal shall be signed by the appellant, or a duly authorized representative of the appellant, and in the case of a corporation, a duly authorized agent of the appellant. The filing of such an appeal shall not alter the time for compliance with the compliance order unless modified by the Hearing Examiner following a hearing.
D. 
Hearing to be scheduled. The Office of the Hearing Examiner will determine and schedule the time and date for a hearing before the Hearing Examiner. Extensions may be granted by the Hearing Examiner for good cause shown or when there is mutual agreement of the parties or to accommodate the schedule of the Hearing Examiner.
(Ord. 28510 Ex. B, 2018-05-15)
A. 
Hearing – Procedure. The Hearing Examiner shall conduct an adjudicative hearing on the appeal pursuant to the rules of procedure of the Hearing Examiner. The City and the appellant shall be the parties in the hearing and each party may call witnesses and may be represented by legal counsel, may present testimony, confront and cross-examine adverse witnesses, and submit evidence and information in accordance with procedures prescribed by the Hearing Examiner. The Hearing Examiner shall give substantial weight to any discretionary decision, or any construction of the TMC or related regulation, rendered by the compliance officer or responsible public official. The written administrative record underlying the contested action or determination may be submitted to the Hearing Examiner and made a part of the record on appeal.
B. 
Burden of proof. The City shall have the burden of proof to demonstrate by a preponderance of the evidence that the violation or violations that are the subject of the appeal was or were committed and that the appellant is the responsible person. In the case of an appeal of a compliance order, the appellant shall have the burden of proof to demonstrate by a preponderance of the evidence that the compliance order was imposed, issued or determined in error.
C. 
Proceedings.
1. 
Prehearing conference. A prehearing conference may be required by the Hearing Examiner in accordance with TMC § 1.23.080, Prehearing conference.
2. 
Conduct of proceedings. All hearings shall be conducted in accordance with TMC § 1.23.100, Conduct of proceedings.
3. 
Subpoenas. The Hearing Examiner shall have authority to issue and enforce subpoenas as provided in TMC § 1.23.105, Hearing Examiner Subpoenas.
D. 
Stay of action pending appeal. An appellant may request the Hearing Examiner to stay or suspend an action by the City to implement the decision under review pending the outcome of the administrative appeal. The request must set forth a statement of grounds for the stay and the factual basis for the request. The Hearing Examiner may grant a stay only if the Hearing Examiner finds that:
1. 
The party requesting the stay is likely to prevail on the merits;
2. 
Without the stay, the party requesting it will suffer irreparable harm;
3. 
The grant of a stay will not substantially harm other parties to the proceedings;
4. 
The grant of a stay will not cause or contribute to an imminent threat of harm to persons or property; and
5. 
The request for the stay is timely in light of the circumstances of the case.
The Hearing Examiner may grant the request for a stay upon such terms and conditions, including the filing of security, as are necessary to prevent harm to other parties by the stay.
(Ord. 28510 Ex. B, 2018-05-15)
A. 
Determination. The Hearing Examiner shall, as to each violation subject to appeal, determine whether the City has established by a preponderance of the evidence that the violation was committed and that the appellant is the responsible person, and shall affirm or vacate the City’s decision regarding such violation or violations. The Hearing Examiner shall, as to each compliance order subject to appeal, determine whether the appellant has established by a preponderance of the evidence that the order was imposed, issued, or determined in error based upon one or more of the following:
1. 
The order was imposed, issued, or determined in excess of the authority or jurisdiction of the City or compliance officer; or
2. 
The order was imposed, issued, or determined upon unlawful procedure; or
3. 
The order was affected by material error of law or fact; or
4. 
The order was clearly erroneous in view of the entire record as submitted; or
5. 
The order was arbitrary or capricious.
The Hearing Examiner may, as to each compliance order subject to appeal, (a) affirm the decision of the compliance officer, (b) remand the matter back to the compliance officer for further action consistent with the decision of the Hearing Examiner, (c) reverse the order or determination if the substantial rights of the appellant may have been prejudiced because the order or determination was in violation of one or more factors set forth above, or (d) modify the order or decision to the extent necessary to correct the error.
B. 
Issue order. The Hearing Examiner shall issue an order to the parties, which order shall contain the following information:
1. 
The decision regarding the matter being appealed, including findings of fact and conclusions based thereon in support of the decision; and/or
2. 
The required corrective action; and/or
3. 
The date and time by which the correction must be completed; and/or
4. 
The monetary penalties assessed; and/or
5. 
A remand and order for further action.
C. 
Notice of decision. The Hearing Examiner shall give notice of the decision to the appellant and the applicable City official within a reasonable period of time following the hearing. This decision shall be considered the final decision in the absence of a motion for reconsideration as provided at TMC § 1.84.040F.
D. 
Failure to appear. If the appellant fails to appear at the scheduled hearing, the Hearing Examiner shall enter an order of dismissal of the appeal, unless good cause is found to extend the hearing date or the City agrees to extend the hearing date, or the Hearing Examiner finds that notice of the hearing was not provided to the appellant.
E. 
Failure to comply. It shall be unlawful to fail to comply with a final non-appealable decision of the Hearing Examiner. For purposes of this section, non-appealable means that all administrative and judicial appeals have been exhausted. Violations of a final non-appealable decision of the Hearing Examiner are subject to enforcement pursuant to TMC Chapter 1.82. Willful noncompliance with a final non-appealable decision of the Hearing Examiner shall constitute a misdemeanor and shall be punished by a fine of up to $1,000 or 90 days in jail, or by both such fine and imprisonment. Each day that a violation continues shall constitute a separate and continuing offense.
F. 
Reconsideration. An appellant may seek reconsideration of the decision of the Hearing Examiner in conformance with the provisions of TMC § 1.23.140. If a timely motion is filed meeting the jurisdictional requirements for reconsideration of the decision of the Hearing Examiner, the decision of the Hearing Examiner shall not be final until the decision of the Hearing Examiner upon the motion for reconsideration is served personally or by mailing.
G. 
Final decision. A party aggrieved by a final decision of the Hearing Examiner may appeal or seek review of the decision in accordance with applicable law. Unless another period of time applies under applicable law or court rule, any appeal of the decision of the Hearing Examiner must be filed within 21 calendar days from the date the Hearing Examiner’s final decision was served, personally or by mailing.
H. 
Subsequent repeat violation – Failure to abate – Misdemeanor. The commission of a subsequent violation or the failure or refusal to take corrective action pursuant to a decision of the Hearing Examiner after receipt of written notice of such decision shall constitute a misdemeanor. The City Attorney, or designee, shall have discretionary authority to file a subsequent violation as either a civil violation pursuant to this chapter, or a civil infraction, or a misdemeanor.
(Ord. 28510 Ex. B, 2018-05-15)