Chapter 6.40
RULES OF PROCEDURE
Sections:
6.40.010 Scope of rules.
6.40.020 Commencement of action.
6.40.030 Hearing on violations – Notice.
6.40.040 Appearance and entry of plea.
6.40.050 Notice of counsel or other designated representative.
6.40.060 Representative of the town.
6.40.070 Discovery.
6.40.080 Continuance.
6.40.090 Oath.
6.40.100 Questioning of witnesses.
6.40.110 Rules of evidence.
6.40.120 Witnesses.
6.40.130 Order of proceedings.
6.40.140 Record of proceedings.
6.40.150 Default by town.
6.40.160 Findings and written judgment.
6.40.170 Default by defendant.
6.40.180 Setting aside default judgment.
6.40.190 Review by superior court.
6.40.010 Scope of rules.
These rules shall apply in all cases involving the adjudication of civil animal control violations before a hearing officer, as established pursuant to this title. [Ord. 2005-09 § 1; prior code § 6-8-1.]
6.40.020 Commencement of action.
Every action or proceeding brought before the hearing officer for a civil violation of this title shall be commenced by the filing of a citation by the town enforcement agent. [Ord. 2005-09 § 1; prior code § 6-8-2.]
6.40.030 Hearing on violations – Notice.
The hearing officer shall hold a hearing on each civil violation reported by the town enforcement agent. Notice of the hearing shall be served personally on the defendant at least 10 days before the hearing. [Ord. 2005-09 § 1; prior code § 6-8-3.]
6.40.040 Appearance and entry of plea.
A. The defendant may admit responsibility by appearing in person or by submitting to the hearing officer a short statement signed by the defendant admitting the allegations of the complaint. Upon receipt of the admission of responsibility, or upon the defendant’s appearance and admission, the hearing officer shall set a time and place for the determination of the civil sanction for the violation and shall mail notice of same to defendant and to the town enforcement agent. At the hearing for the determination of sanctions, the defendant and the town enforcement agent or the complainant shall each be given an opportunity to state his position on the amount of the sanction to be imposed by the hearing officer.
B. The defendant may deny responsibility by appearing in person or by submitting to the hearing officer a denial signed by the defendant. Upon receipt of said denial, or upon the defendant’s appearance and denial, the hearing officer shall set the matter for hearing and notify the defendant, at the address set forth on the citation, or any different address provided by the defendant, of the date, time and place of the hearing. [Ord. 2005-09 § 1; prior code § 6-8-4.]
6.40.050 Notice of counsel or other designated representative.
A. If a defendant denies the allegations contained in the citation, the hearing officer shall promptly provide the defendant written notice that his right to be represented by counsel or by other designated representative is waived unless he notifies the hearing officer in writing at least five days prior to the hearing date of his election to be represented by counsel or by other designated representative. Such notice to defendant shall specify the appropriate place and manner for filing his notice of counsel or of other designated representative.
B. Absent extraordinary circumstances, failure of a defendant to timely notify the hearing officer of an election to be represented by counsel or other designated representative constitutes a waiver of the right to counsel or other designated representative. [Ord. 2005-09 § 1; prior code § 6-8-5.]
6.40.060 Representative of the town.
The town need not be represented by counsel at the hearing. Absent extraordinary circumstances, the town’s right to be represented by counsel or other designated representative is waived unless, at least five days prior to the hearing date, the town notifies the hearing officer and the defendant, at the address set forth on the complaint or any different address provided by the defendant, of the town’s election to be represented by counsel or other designated representative. [Ord. 2005-09 § 1; prior code § 6-8-6.]
6.40.070 Discovery.
A. No pretrial discovery shall be permitted absent extraordinary circumstances.
B. Immediately prior to the hearing, each party shall produce for inspection by the opposing party any prepared exhibits and written or recorded statements of any witness which may be offered at the hearing. Failure to comply with this rule may result, in the hearing officer’s discretion, in the granting of a recess or a continuance to permit such inspection or in the denial of admission of the evidence not so exchanged. [Ord. 2005-09 § 1; prior code § 6-8-7.]
6.40.080 Continuance.
A. The hearing officer may, upon any motion of any party or on his own motion, continue the hearing for a period not exceeding 30 days, if it appears that the interests of justice so require.
B. Absent extraordinary circumstances, no hearing shall be continued by the hearing officer without notice to all parties.
C. The hearing officer shall notify all parties in writing of the new hearing date. [Ord. 2005-09 § 1; prior code § 6-8-8.]
6.40.090 Oath.
All testimony shall be given under oath or affirmation. [Ord. 2005-09 § 1; prior code § 6-8-9.]
6.40.100 Questioning of witnesses.
A. The hearing officer may, on his own motion, call and examine witnesses, including the defendant.
B. No person may be examined at a hearing except by the hearing officer, the defendant, the defendant’s attorney, the town enforcement agent, or the town’s attorney. [Ord. 2005-09 § 1; prior code § 6-8-10.]
6.40.110 Rules of evidence.
The Arizona Rules of Evidence shall not apply before the hearing officer. Any evidence offered may be admitted subject to a determination by the hearing officer that the offered evidence is relevant and material and has some probative value to a fact at issue. Nothing in this rule is to be construed as abrogating any statutory provisions relating to privileged communications. [Ord. 2005-09 § 1; prior code § 6-8-11.]
6.40.120 Witnesses.
All witnesses for the town’s case in chief, other than the defendant, shall be required to testify prior to the defendant being required to testify or to produce any evidence. However, a witness not called to testify in the town’s case in chief may be called in rebuttal to testify to an issue raised by the defense. [Ord. 2005-09 § 1; prior code § 6-8-12.]
6.40.130 Order of proceedings.
The order of proceedings shall be as follows:
A. Testimony of town’s witnesses;
B. Testimony of defendant’s witnesses;
C. Testimony of town’s rebuttal witnesses, if any;
D. Testimony of defendant’s surrebuttal witnesses, if any;
E. Argument of the parties, if permitted by the hearing officer;
F. Ruling by the hearing officer. The ruling may include the findings, conclusions and opinion of the hearing officer. [Ord. 2005-09 § 1; prior code § 6-8-13.]
6.40.140 Record of proceedings.
A record of the proceedings shall be made by audiotape. In addition, a record of the proceedings may be made by a court reporter, if provided by the defendant at his own expense. [Ord. 2005-09 § 1; prior code § 6-8-14.]
6.40.150 Default by town.
If no witness for the town, excluding defendant, appears at the time set for hearing, the hearing officer shall dismiss the citation unless the hearing officer, for good cause shown, continues the hearing to another date. [Ord. 2005-09 § 1; prior code § 6-8-15.]
6.40.160 Findings and written judgment.
If the defendant, after hearing, is found by a preponderance of the evidence to have violated an animal care ordinance, the hearing officer shall enter judgment for the town and impose a civil sanction in an amount no less than $50.00 and no more than $500.00 for each violation. Otherwise, the hearing officer shall enter judgment for the defendant. Written judgment shall be rendered not later than five days after the conclusion of the hearing. Nothing in these rules shall prohibit the town enforcement agent from issuing a citation to the defendant based on subsequent violations of this title. [Ord. 2005-09 § 1; prior code § 6-8-16.]
6.40.170 Default by defendant.
A. If the defendant fails to appear as provided by these rules, the allegations of the citation shall be deemed admitted, and the hearing officer shall enter judgment for the town and impose a civil sanction and report such judgment to the town enforcement agent.
B. If it appears from the face of the citation that the defendant was in the active military service, no default judgment may be entered. In such case, the hearing officer may notify the defendant’s commanding officer, if known, of the defendant’s failure to appear. [Ord. 2005-09 § 1; prior code § 6-8-17.]
6.40.180 Setting aside default judgment.
A. For good cause shown, and upon terms the hearing officer deems just, the hearing officer may set aside a judgment entered upon a failure to appear. A motion to set aside the judgment shall be made in writing within 30 days after entry of judgment.
B. At any time the hearing officer shall set aside a judgment entered upon a failure to appear if it appears to the hearing officer that the named defendant was not served a copy of the citation or for any other reason where necessary to prevent a manifest injustice. [Ord. 2005-09 § 1; prior code § 6-8-18.]
6.40.190 Review by superior court.
Judicial review of the final decision of the hearing officer shall be pursuant to ARS Title 12, Chapter 7, Article 6 (ARS § 12-901 et seq.). [Ord. 2005-09 § 1; prior code § 6-8-19.]