Chapter 19.35 ADMINISTRATIVE AND HEARING EXAMINER APPEALS FOR CIVIL CODE VIOLATIONS

The health officer or disinterested director, or their designee, shall be the administrative hearings officer and conduct a hearing pursuant to the compliance code and rules of procedure, as adopted by the board of county commissioners and board of health. The administrative hearing shall be informal.

For civil code violations listed under JCC § 8.01.030 or state statutes and regulations which authorize enforcement by a local board of health, enforcement of which is not otherwise covered by the Jefferson County Code, the health officer or their designee shall conduct and adjudicate the administrative hearing.

§ 19.35.025 Administrative hearing procedure.

For all other civil code violations not involving the violations in JCC § 19.35.015, a disinterested director or their designee shall conduct and adjudicate the administrative hearing.

(Ord. 9-20 § 1 (Appx. A))

A person responsible or aggrieved person may begin to appeal a civil code violation by filing a notice of appeal with the department issuing the civil code violation. The notice of appeal shall request an appeal hearing and specify the grounds for the appeal, including the alleged errors.

There shall be no filing fee for an administrative hearing, nor shall any cost associated with the administrative hearing be assigned to the person responsible or aggrieved person, regardless of the outcome of the hearing. This subsection does not limit the authority of the administrative hearings officer to affirm or assign monetary penalties or costs associated with the code compliance case, excluding the cost of conducting the administrative hearing.

§ 19.35.030 Service of the administrative hearing notice.

The administrative hearing shall be conducted within 45 days of the request for the administrative hearing, unless the person responsible agrees to an extension.

(4)

Administrative hearings shall be informal. The administrative hearing shall occur in accordance with this title and shall be conducted in accordance with the compliance code and rules of procedure. The county shall have the burden of proving by a preponderance of the evidence that a violation has occurred. Formal rules of evidence shall not apply to administrative hearings.

(5)

Staff shall develop a departmental report outlining the alleged violation, history of compliance efforts, and any other evidence necessary to demonstrate the civil violation occurred.

(6)

The administrative hearing shall be conducted on the record and shall allow for testimony from county staff, person responsible and any witnesses called by the county staff or person responsible. The county or the person responsible may submit evidence for consideration by the administrative hearing officer. Administrative hearings shall not allow public testimony, written or oral.

(7)

Final Agency Decision.

(a)

At the conclusion of the administrative hearing, the administrative hearings officer shall either: (i) affirm the director's decision; (ii) dismiss the director's decision; or (iii) modify the director's decision.

(b)

The administrative hearings officer shall make findings and conclusions of law sufficient to permit further review.

(c)

A copy of the administrative hearings officer's decision shall be mailed to the person responsible and the county, and if the person responsible is a tenant to the owner of the property where the violation is occurring.

(d)

Monetary Penalties. The administrative hearings officer may assess monetary penalties in accordance with JCC § 19.30.010 and subsection (8) of this section.

(i)

The administrative hearings officer has the following options in assessing monetary penalties:

(A)

Assess monetary penalties as outlined in the director's decision;

(B)

Assess monetary penalties beginning on the correction date set by the director or an alternate correction date set by the administrative hearings officer;

(C)

Assess less than the established monetary penalty set forth in JCC § 19.30.010, based on the criteria of subsection (7)(d)(i)(E) of this section; or

(D)

Assess no monetary penalties.

(E)

In determining the monetary penalty assessment, the administrative hearings officer shall consider the following factors:

(I)

Whether the person responsible responded to notices and cooperated to correct the civil code violation;

(II)

Whether the person responsible failed to appear at the hearing;

(III)

Whether the civil code violation was a repeat violation;

(IV)

Whether the person responsible showed due diligence or substantial progress in correcting the civil code violation; and

(V)

Any other relevant factors.

(e)

If a notice of noncompliance with a voluntary compliance agreement, notice of violation, stop work order, or a notice of violation, or any other decision is not timely appealed within 15 days of mailing the decision, then the director's decision shall be a final decision.

(8)

Failure to Appear. If the person responsible fails to appear at the scheduled hearing or present a written statement in time for consideration at the hearing, the administrative hearings officer shall enter an order of default with findings and assess the appropriate monetary penalty pursuant to JCC § 19.30.010. The county may enforce the administrative hearings officer's decision and recover all related expenses. A copy of the order of default shall be mailed to the person responsible and against whom the default order was entered, to the county, and, if the person responsible is a tenant, to the landlord or owner of the property where the civil code violation is occurring.

(9)

Appeal to Hearing Examiner. A final decision by the administrative hearings officer may be appealed to the Jefferson County hearings examiner within 15 days of mailing the administrative hearings officer's decision. If the decision of the administrative hearings officer is not appealed to the hearing examiner within 15 days then the decision of the administrative hearings officer shall become a final agency decision and order.

(Ord. 9-20 § 1 (Appx. A))

The notice of the administrative hearing shall contain the date, time, and location of the administrative hearing, a copy of the civil code violation, and the name and telephone number of the director.

The notice of the administrative hearing shall be served on the person responsible for the civil code violations and, if applicable, the landowner of the subject property by personal service or by mailing a copy of the same to the last known address of each party.

§ 19.35.035 Administrative hearing decisions.

The person effectuating or achieving the service shall declare in writing the date and address the personal service or mailing was made. Service by mail shall be deemed effective upon the third business day following the day of mailing.

(Ord. 9-20 § 1 (Appx. A))

In the event the administrative hearings officer determines that a civil code violation occurred or is occurring, the administrative hearings officer shall issue an order to the person responsible for the civil code violation or nuisance which contains the following information:

The decision regarding the civil code violation or nuisance, including findings of fact and conclusions of law based on those findings in support of the decision;

The monetary penalties and costs of enforcement, which will become a personal debt of the person responsible;

§ 19.35.040 Administrative hearing – Duty of the administrative hearings officer.

A statement informing the person responsible for the civil code violation that entry of this decision does not relieve that person of the obligation to cure, remove or remedy the civil code violation; and

(4)

How the decision may be appealed.

(Ord. 9-20 § 1 (Appx. A))

The administrative hearings officer shall issue a decision within 15 days of the administrative hearing, unless the administrative hearings officer determines that more time is necessary. The decision shall be mailed by first class or hand-delivered to the person responsible and the code compliance coordinator.

(Ord. 9-20 § 1 (Appx. A))

§ 19.35.045 Hearing examiner appeal.

The person responsible or an aggrieved person may appeal the decision of the administrative hearings officer, as authorized in JCC § 19.35.020, to the Jefferson County hearing examiner within 15 days of mailing the administrative hearings officer's decision. A $250.00 filing fee is required to file an appeal with the hearing examiner. This fee may be waived for indigent appellants by the Jefferson County commissioners, as outlined in Resolution 74-95. An appeal to hearing examiner must be filed with the office of the hearing examiner.

(Ord. 9-20 § 1 (Appx. A))

§ 19.35.050 Hearing examiner appeal procedure.

Procedure.

(a)

The person responsible or an aggrieved person may appeal the decision of the administrative hearings officer by filing a notice of appeal with the office of the hearing examiner and paying the $250.00 filing fee within 15 days of mailing the administrative hearings officer's decision.

(b)

The notice of appeal shall contain: (1) full name; (2) mailing address; (3) email address (if available); (4) file number, license number, or other identifying number; (5) a concise statement of the factual and legal basis for the appeal citing specifically the alleged errors in the administrative official's decision; and (6) the specific relief sought.

The hearing examiner appeal shall be conducted within 60 days of the notice of appeal, unless the person responsible agrees to an extension.

The hearing examiner appeal shall occur in accordance with this title and shall be conducted in accordance with the Chapter 2.30 JCC (Hearing Examiner) and Hearing Examiner Rules of Procedure. The county shall have the burden of proving by a preponderance of the evidence that a violation has occurred. Formal rules of evidence shall not apply to administrative hearings.

(4)

Staff shall develop a departmental report outlining the alleged violation, history of compliance efforts, and any other evidence necessary to demonstrate the civil violation occurred.

(5)

The administrative hearing shall be conducted on the record and shall allow for testimony from county staff or the person responsible and any witnesses called by the county or the person responsible. The county or the person responsible may submit evidence for consideration by the examiner. Hearing examiner appeals shall not allow public testimony, written or oral.

(6)

Final Agency Decision.

(a)

At the conclusion of the hearing, the examiner shall either: (i) affirm the administrative hearings officer's decision; (ii) dismiss the administrative hearings officer's decision; or (iii) modify the administrative hearings officer's decision.

(b)

The examiner shall make findings and conclusions of law sufficient to permit further review, consistent with Chapter 2.30 JCC and the Hearing Examiner Rules of Procedure.

(c)

A copy of the examiner's decision shall be mailed to the person responsible, the county, and if the person responsible is a tenant to the owner of the property where the violation is occurring.

(d)

Monetary Penalties. The examiner may assess monetary penalties in accordance with JCC § 19.30.010.

(i)

The examiner has the following options in assessing monetary penalties:

(A)

Assess monetary penalties as outlined in the decision;

(B)

Assess monetary penalties beginning on the correction date set by the director, administrative hearings office, or an alternate correction date set by the examiner;

(C)

Assess less than the established monetary penalty set forth in JCC § 19.30.010, based on the criteria of subsection (6)(e) of this section; and

(D)

Assess no monetary penalties.

(e)

In determining the monetary penalty assessment, the examiner shall consider the following factors:

(i)

Whether the person responsible responded to notices and cooperated to correct the civil code violation;

(ii)

Whether the person responsible failed to appear at the hearing;

(iii)

Whether the civil code violation was a repeat violation;

(iv)

Whether the person responsible showed due diligence or substantial progress in correcting the civil code violation; and

(v)

Any other relevant factors.

(7)

Failure to Appear. If the person responsible fails to appear at the scheduled hearing examiner appeal or present a written statement in time for consideration at the hearing, the examiner shall enter an order of default with findings and assess the appropriate monetary penalty pursuant to JCC § 19.30.010. The county may enforce the examiner's decision and recover all related expenses, including attorney fees and staff time, plus the costs of the hearing and any monetary penalty from the person responsible pursuant to JCC § 19.30.020. A copy of the order of default shall be mailed to the person responsible and against whom the default order was entered, to the county, and, if the person responsible is a tenant, to the landlord or owner of the property where the civil code violation is occurring.

(8)

Costs. If the person responsible substantially prevails at the hearing examiner appeal with the examiner dismissing the administrative hearings officer's decision or substantially modifying the administrative hearings officer's decision, then the hearing examiner filing fee shall be refunded and no costs for the hearing examiner appeal shall be assigned to the person responsible. If the person responsible does not substantially prevail at the hearing, the examiner may assign all hearing and related costs to the person responsible including attorney's fees and staff time. This subsection does not limit the authority of the examiner to affirm or assign monetary penalties or costs associated with the code compliance case.

(9)

Judicial Review. A final decision by the hearing examiner shall be final and conclusive, unless proceedings for review of the decision are properly commenced in superior court within the time period specified by state law. A final decision by the hearing examiner affirming or reinstating a notice or stop work order renders the notice or stop work order a final agency order.

(Ord. 9-20 § 1 (Appx. A))

§ 19.35.055 Final decisions.

If the decision of the administrative hearings officer is not appealed to the hearing examiner within 15 days of mailing the decision then the decision of the administrative hearings officer shall become a final agency decision and order.