Article I. General Provisions-Sections 2-14-072 thru 2-14-100
2-14-072 Adjudication by mail.
The rules adopted by the director for the conduct of administrative adjudication proceedings may provide that a respondent may elect to contest an alleged violation through an adjudication by mail rather than at an administrative hearing.
- Before any administrative adjudication proceeding may be conducted, the parties shall be afforded notice in compliance with this section.
- Unless otherwise provided by law or rule, the issuer of a notice of violation or notice of hearing shall specify on the notice his or her name and department; where known, the name and address of the person or entity charged with the violation; the date, time and place of the violation; and the section of the code or departmental rule or regulation which was allegedly violated; and shall certify the correctness of the specified information by signing his or her name to the notice. A notice of hearing shall also include the date, time and location of the hearing and the penalties for failure to appear at the hearing.
- Unless otherwise provided by law or rule, a notice of violation or notice of hearing shall be served upon the alleged violator no less than seven calendar days prior to the date of the hearing: (i) by first class or express mail or by overnight carrier at the violator's residence address or, if the violator is a business entity, at any address identified for its registered agent or at its principal place of business; or (ii) by personal service, including personal service upon an employee or agent of the alleged violator at a place of business of the alleged violator or otherwise if such service is reasonably calculated to give the alleged violator actual notice; or (iii) if service cannot be made by either of subsection (c)(i) or (ii) above, when the alleged violator is the owner or manager of the property by posting a copy of the violation notice on the front entrance of the building or other structure where the violation is found, or if the property is unimproved or fenced off, by posting a copy of the violation notice in a prominent place upon the property where the violation is found.
- In all non-emergency situations, if requested by the defendant, the defendant shall have at least 15 days after the date of mailing or other service of a notice of violation or notice of hearing to prepare for a hearing. For purposes of this section, "non-emergency situation" means any situation that does not reasonably constitute a threat to the public interest, safety, or welfare.
2-14-076 Administrative hearings.
- Any administrative adjudication proceeding conducted by the Department of Administrative Hearings shall afford the parties an opportunity for a hearing before an administrative law officer.
- An attorney who appears on behalf of any person shall file with the administrative law officer a written appearance on a form provided by the Department of Administrative Hearings for such purpose.
- In no event shall the case for the city be presented by an employee of the Department of Administrative Hearings; provided, however, that documentary evidence, including the notice of violation, which has been prepared by another Department or agency of the city may be presented at the hearing by the administrative law officer.
- The administrative law officer may grant continuances only upon a finding of good cause.
- All testimony shall be given under oath or affirmation.
- The administrative law officer may issue subpoenas to secure the attendance and testimony of relevant witnesses and the production of relevant documents. Issuance of subpoenas shall be subject to the restrictions contained in section 2-14-080.
- Subject to subsection (j) of this section, the administrative law officer may permit witnesses to submit their testimony by affidavit or by telephone.
- The formal and technical rules of evidence shall not apply in the conduct of the hearing. Evidence, including hearsay, may be admitted only if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs.
- No violation may be established except upon proof by a preponderance of the evidence; provided, however, that a violation notice, or a copy thereof, issued and signed in accordance with 2-14-074 shall be prima facie evidence of the correctness of the facts specified therein.
- Upon the timely request of any party to the proceeding, any person, who the administrative law officer determines may reasonably be expected to provide testimony which is material and which does not constitute a needless presentation of cumulative evidence, shall be made available for cross-examination prior to a final determination of liability.
- The record of all hearings before an administrative law officer shall include: (i) a record of the testimony presented at the hearing, which may be made by tape recording or other appropriate means; (ii) all documents presented at the hearing; (iii) a copy of the notice of violation or notice of hearing; and (iv) a copy of the findings and decision of the administrative law officer.
- Upon conclusion of a hearing, the administrative law officer shall issue a final determination of liability or no liability. Upon issuing a final determination of liability the administrative law officer may: (i) impose penalties and/or fines that are consistent with applicable provisions of the Municipal Code; (ii) issue orders that are consistent with applicable provisions of the Municipal Code; and/or (iii) assess costs reasonably related to instituting the administrative adjudication proceeding; provided, however, that in no event shall the administrative law officer have the authority to impose a penalty of imprisonment or, except in cases to enforce the collection of any tax imposed and collected by the city, where this limitation shall not apply, impose a fine in excess of $50,000 exclusive of costs of enforcement or costs imposed to secure compliance with this code.
- In the issuance of a final determination of liability, an administrative law officer shall inform the respondent of his or her right to seek judicial review of the final determination.
- If at the time set for a hearing the recipient of a notice of violation or a notice of hearing, or his or her attorney of record, fails to appear, the administrative law officer may find the recipient in default and proceed with the hearing and accept evidence relevant to the existence of a code violation and conclude with a finding, decision, and order. A copy of the order of default shall be served in any manner permitted by section 2-14-074(c).
- The recipient of a notice of violation or a notice of hearing who is found to be in default may petition the administrative law officer to set aside the order of default and set a new hearing date in accordance with Section 2-14-108.
- An administrative law officer may issue a subpoena only if he or she determines that the testimony of the witnesses or the documents or items sought by the subpoena are necessary to present evidence that is: (i) relevant to the case; and (ii) relates to a contested issue in the case.
- A subpoena issued under this chapter shall identify: (i) the person to whom it is directed; (ii) the documents or other items sought by the subpoena, if any; (iii) the date for the
appearance of the witnesses and the production of the documents or other items described in the subpoena; (iv) the time for the appearance of the witnesses and the production of the documents or other items described in the subpoena; and (v) the place for the appearance of the witnesses and the production of the documents or other items described in the subpoena.
- In no event shall the date identified for the appearance of the witnesses or the production of the documents or other items be less than seven days after service of the subpoena.
- Within 3 business days of being served with a subpoena issued in accordance with this chapter, the recipient of the subpoena may appeal the order authorizing the issuance of the subpoena to an administrative law officer, who shall not be the same administrative law officer who ordered the issuance of the subpoena.
2-14-090 Compliance bond.
In order to ensure that code violations are remedied or fines are paid in a timely manner, an administrative law officer, upon issuing a final determination of liability, may require a code violator to post with the city a compliance bond or, as appropriate, to consent to the granting and recording of a lien against titled property. Bonds and liens shall be approved by the city comptroller and the corporation counsel as to form and amount. Whenever it is necessary for the city to make repairs or otherwise expend funds relating to a code violation for which a bond was posted, or whenever fines or costs remain unpaid after a code violator has exhausted or failed to exhaust judicial review procedures, the administrative law officer may, after giving the parties notice and opportunity to be heard, issue an order permitting the city to draw against the bond in an appropriate amount, or to foreclose on the lien. The administrative law officer shall order the bond or the titled property or proceeds from the titled property, less the costs incurred by the city, returned to the code violator upon proof of compliance with the applicable code provisions and the payment of applicable fines or costs.
2-14-100 Violations of orders.
- Elements of the offense. A person violates this section if he or she:
(1) receives notice and an opportunity to be heard under this Code; and
(2) knowingly fails to comply with an order issued by an administrative law officer under this chapter, including any requirement of a subpoena.
Each day that the violation occurs shall be considered a separate and distinct offense.
- Defenses. It shall be an affirmative defense to this section that a court of competent jurisdiction stayed the order issued by the administrative law officer prior to the effective date of the order.
- Prohibited Defenses. 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.
- Sentence. A person convicted under this section shall be punished by:
(1) a fine of not less than $200 and not more than $500 for each offense;
(2) incarceration for not more than 180 days for each offense; and/or
(3) an order to perform community service for a period not to exceed 200 hours for each offense.
However, whenever the order giving rise to the offense is an order of abatement pursuant to Chapter 7-4, Section 8-4-090 or Section 13-12-145 of this Code, the sentence shall include a mandatory minimum sentence of no less than four days incarceration.
- Venue. The corporation counsel shall institute actions under this section in a court of competent jurisdiction.