Chapter 2.10
CIVIL INFRACTIONS
Sections:
2.10.010 Establishment and Purpose.
2.10.015 Definitions.
2.10.020 Infraction Procedure.
2.10.023 Code Services Personnel to Prosecute Violations.
2.10.024 Attorney Barred from Appearing; Exception.
2.10.025 Enforcement.
2.10.030 Lien Filing and Docketing.
2.10.040 Code Enforcement Officer Authorized to Promulgate Rules.
2.10.045 Schedule of Forfeitures.
2.10.050 Effect of New Ordinance.
2.10.010 Establishment and Purpose.
A. A procedure to handle violations of city ordinances as civil infractions, subject to the provisions set forth below, is hereby continued, pursuant to the home rule powers granted the city of Beaverton by Article IV, Section 1, and Article XI, Section 2, of the Oregon Constitution, and by Sections 4, 5 and 21 of the City of Beaverton Charter.
B. A civil infraction procedure has been established for the purpose of decriminalizing penalties for infractions of certain civil ordinances and for the purpose of providing a convenient and practical forum for the civil hearing and determination of cases arising out of said violations.
C. Acts or omissions to act which are processed pursuant to the provisions of this ordinance or are designated an infraction by any city ordinance, do not require a culpable mental state as an element of the infraction.
D. BC 2.10.010 through 2.10.050 shall be known and referred to as the “Civil Infractions Ordinance” and may also be referred to herein as “this ordinance”.
2.10.015 Definitions.
For the purpose of BC 2.10.010 through 2.10.050 the following mean:
Civil infraction – Commission of an act or omission to act in a manner prescribed by this Code or other city ordinance constituting breach or infringement of a section of a city ordinance or of this Code constitutes a civil infraction and shall be handled in accordance with the procedures established by this ordinance. When an infraction is of a continuing nature, except where specifically provided otherwise, a separate infraction will be deemed to occur on each calendar day the infraction continues to exist, and a separate citation may be filed for each such infraction.
Code enforcement officer – The mayor or any designee whom the mayor appoints by executive order or rule to enforce this ordinance.
Forfeiture; forfeiture schedule – The only penalty to be imposed for an infraction is a monetary penalty called a forfeiture. The forfeiture to be assessed for a specific infraction will be determined pursuant to specific provisions within the ordinance defining the infraction or the forfeiture schedule found in BC 2.10.045. The procedure prescribed by this ordinance shall be the exclusive procedure for imposing a forfeiture; however, this section shall not be read to prohibit in any way any alternative remedies set out in ordinances which are intended to abate or alleviate ordinance violations, nor shall the city be prohibited from recovering, in a manner prescribed by law, any expense incurred by it in abating or removing ordinance violations pursuant to any ordinance.
Prior contact –
A. Any prior contact between the code enforcement officer and the responsible party regarding the alleged infraction, including, but not limited to, phone calls, personal oral communication at any location, letters or other forms of written communication, or a prior citation issued for the same or similar infraction. In order to be effective, any prior contact must be made within 120 days preceding the issuance of the uniform infraction citation. [Amended by Ordinance No. 3332, 9/13/83]
B. Prior contact shall be deemed to occur without actual contact between the code enforcement officer and a responsible party if the alleged infraction is related to regulated activity for which the city has issued any permit, license, agreement, or written directive required by law or policy of the city in conjunction with the regulated activity. No time limit shall restrict prior contact which is deemed to have occurred under the terms of this section. [Amended by Ordinance No. 3332, 9/13/83]
Responsible party – The person responsible for curing or remedying an infraction and includes:
A. The owner of the property or the owner’s manager or agent or other person in control of the property on behalf of the owner;
B. The person occupying the property including bailee, lessee, tenant or other person having possession;
C. The person who is alleged to have committed or authorized the commission of the infraction.
2.10.020 Infraction Procedure.
A. Reporting. All reports or complaints of infractions covered by this ordinance shall be made to the code enforcement officer.
B. Review of Facts. When an infraction covered by this procedure is reported to the code enforcement officer, the code enforcement officer may refuse to proceed further with the matter after a review of the facts and circumstances surrounding the alleged infraction, and upon making a determination that sufficient evidence does not exist to support the allegation that an infraction has occurred or if the code enforcement officer deems it in the best interest of the city.
C. Prior Contact. Before a uniform infraction citation and complaint is issued for a Class 1 Civil Infraction the code enforcement officer may make a prior contact with the responsible party. Whether a prior contact is made prior to issuance of a uniform infraction citation and complaint for a Class 1 Civil Infraction is solely within the sound discretion of the code enforcement officer while enforcing the best interests of the city. Before a uniform infraction citation and complaint is issued for Class 2 and 3 Civil Infractions, the code enforcement officer shall make a prior contact with the responsible party and give the responsible party a reasonable opportunity to cure or remedy the alleged infraction. In making the prior contact, the following information shall be communicated to the responsible party:
1. description or identification of the activity constituting the alleged infraction and identification of the recipient as being the responsible party for the infraction;
2. a statement that the code enforcement officer has determined the activity to be an infraction;
3. a statement of the action required to remedy or cure the infraction and the time and/or date by which the remedy must be completed or begun;
4. a statement advising that, if the required abatement is not completed or commenced within the time specified a uniform infraction citation and complaint will issue and that a forfeiture in the maximum amount provided by BC 2.10.045 for that particular infraction could be imposed. [BC 2.10.020 C, C1, C2, C3, C4, amended by Ordinance No. 3332, 9/13/83]
D. When the code enforcement officer considers it advisable, the code enforcement officer may enter into a written agreement resolving the problems which gave rise to the complaint. The agreement shall be known as a voluntary compliance agreement and shall be binding on the responsible party. The fact that a person alleged to have committed a civil infraction enters into such an agreement shall not be considered an admission of having committed an infraction for any purpose.
E. During the time allowed in the voluntary compliance agreement for the completion of necessary correction action, the city shall hold further processing of the alleged violation in abeyance. If all terms of the voluntary compliance agreement are satisfied, the city shall take no further action concerning the alleged violation other than those steps necessary to terminate the matter.
F. The failure to comply with any term of the voluntary compliance agreement constitutes a separate Class l Civil Infraction and shall be handled in accordance with the procedures established by this ordinance, except no prior contact after the voluntary compliance agreement has been signed need be made before the uniform infraction citation is issued. The city may also proceed with processing the alleged infraction giving rise to the voluntary compliance agreement.
G. Issuance of Uniform Infraction and Complaint.
1. If the responsible party with whom prior contact was made fails to cure or remedy the alleged infraction, a uniform infraction citation and complaint signed by the code enforcement officer or any citizen may be filed with the municipal court charging the responsible party with the civil infraction and setting a date for the responsible party to appear before the municipal court to answer said complaint.
2. The code enforcement officer shall prescribe the form of the uniform infraction citation and complaint.
3. The complaint and summons shall contain the following information:
a. the name of the court and the court’s file number;
b. the name of the person cited;
c. the infraction with which the person is charged;
d. the date, time and place the infraction occurred, or if the infraction is of a continuing nature, the date, time and place the infraction was observed by the code enforcement officer, or the citizen signing the complaint;
e. the date on which the citation was issued;
f. the scheduled forfeiture for the alleged infraction; and
g. the time and place at which the person cited is to appear in court to answer the complaint.
4. The complaint shall contain a form of verification that the person signing the complaint swears that the person has reasonable grounds to believe, and does so believe, that the person cited committed the infraction.
5. The summons shall also contain notice to the person cited that a civil complaint will be filed in the municipal court of the city. [BC 2.10.020G, amended by Ordinance No. 3863, 10/11/93]
H. Service; Service by Mail and Failure to Receive Notice; Default.
1. Service on individuals may be made by the code enforcement officer or any authorized agent of the city by any of the following means:
a. Service may be made by mailing the summons and complaint by restricted or unrestricted certified or registered mail, return receipt requested. For purposes of computing any time period prescribed by this ordinance, service by mail shall be complete three days after such mailing if the address to which it was mailed is within the State, and seven days after mailing if the address to which it is mailed is outside the State.
b. No default shall be entered against any responsible party served by mail under this section who has not either received or rejected the registered or certified letter containing a copy of the summons and complaint, unless otherwise authorized by the municipal judge based upon service procedures of the Oregon Rules of Civil Procedure.
c. Service may be made by delivering the summons and complaint directly to the person to be served.
d. Substituted service may be made by delivering a copy of the summons and complaint at the dwelling house or usual place of abode of the person to be served, to any person over 14 years of age residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the code enforcement officer, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the responsible party at the responsible party’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by this ordinance, substituted service shall be complete upon mailing.
e. If the person to be served maintains an office for the conduct of business, office service may be made by leaving a true copy of the summons and complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the code enforcement officer, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the responsible party at the responsible party’s dwelling house or usual place of abode or the responsible party’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the responsible party of the existence and pendency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by this ordinance, office service shall be complete upon such mailing.
2. Service on particular responsible parties; minors, incapacitated persons, corporations, limited partnerships, the State, other public bodies, general partnerships and other entities, shall be on the persons named in the Oregon Rules of Civil Procedure.
I. Answer.
1. A person who receives a summons and complaint alleging an infraction shall answer such complaint by personally appearing to answer at the time and place specified therein; except an answer may be made by mail or personal delivery if received by the city within ten days of the date of the receipt of the summons as provided in subsections 2 and 3 below.
2. If the person alleged to have committed an infraction admits the infraction, the person may complete the appropriate answer on the back of each summons and forward the summons to the municipal court. Cash, check or money order in the amount of the forfeiture for the infraction alleged as shown on the face of the summons shall be submitted with the answer. Upon receipt of the forfeiture, an appropriate order shall be entered in the municipal court records.
3. If the person alleged to have committed the infraction denies part of all of the infraction, the person may request a hearing by completing the appropriate answer on the back of the summons and forwarding the summons, together with security for court fees. Upon receipt, the answer shall be entered and a hearing date established by the municipal court. The municipal court shall notify the person alleged to have committed the infraction by return mail of the date of the hearing. The security received shall be returned upon appearance by the person alleged to have committed the infraction for the hearing, except as otherwise provided by this ordinance. The security deposit may be waived in whole or in part at the discretion of the municipal court for good cause shown and upon written application of the person alleged to have committed the infraction setting forth the reason for requesting the waiver and certifying that the person alleged to have committed the infraction will attend the hearing when scheduled.
J. Hearing.
1. Every hearing to determine whether an infraction has been committed shall be held before the municipal court without a jury.
2. The defendant may be represented by legal counsel, but legal counsel shall not be provided at public expense. If legal counsel is to appear, written notice shall be provided to the municipal court five days prior to the hearing date.
3. The defendant shall have the right to present evidence and witnesses in the defendant’s favor, to crossexamine witnesses who testify against the defendant and to submit rebuttal evidence.
4. If the defendant alleged to have committed the infraction desires that witnesses be ordered to appear by subpoena, the defendant must so request in writing from the court at the time the answer is returned, or subsequently by mail at any time at least five days prior to the scheduled hearing. A deposit for each witness shall accompany the request, such deposit to be refunded if no forfeiture is assessed by the final order. The deposit shall be in the amount equal to the witness fee allowed by statute for witnesses in circuit court. Subject to the same five day limitation, the code enforcement officer, the citizen who signed the complaint or the city attorney, as appropriate, may also request in writing that the court order certain witnesses to appear by subpoena. If a forfeiture is declared in the final order, the order shall also provide that the defendant shall pay any witness fees payable in connection with the hearing.
5. The hearing shall be limited to production of evidence only on the infraction alleged in the complaint.
a. Oral Evidence. Oral evidence shall be taken only on oath or affirmation.
b. Hearsay Evidence. Hearsay evidence may be used for the purpose of supplementing, or explaining any direct evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions in courts of competent jurisdiction in this State.
c. Admissibility of Evidence. Any relevant evidence shall be admitted if it is the type of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this State.
d. Exclusion of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
6. The complainant or, if the city is the complainant, the code enforcement officer shall have the burden of proving the alleged ordinance infraction by a preponderance of the evidence.
7. After due consideration of the evidence and arguments presented at the hearing, the court shall determine whether the infraction as alleged in the complaint was committed. When the infraction has not been proven, an order dismissing the complaint shall be entered in the municipal court records. A copy of the order shall be delivered to the person named in the order personally or by mail. When the court finds that the infraction was committed, and upon written request by a party to the hearing, the order shall include a brief statement of the necessary findings of fact to establish the infraction alleged.
8. Upon a finding that an infraction has occurred, the court shall assess a forfeiture pursuant to the schedule established in accordance with this ordinance, plus court costs and witness fees. The municipal court judge is authorized to set reasonable court costs including security for court fees by court order.
9. The court shall maintain a record of its proceedings. A mechanical recording of the hearing accompanied by any written documents, correspondence or physical evidence associated with the matter shall be sufficient to meet the requirement of this subsection.
10. The determination of the municipal court shall be final. Review of the court’s determination shall be to the circuit court by writ of review pursuant to ORS Chapter 34. [BC 2.10.020, amended by Ordinance No. 3449, 5/20/85]
2.10.023 Code Services Personnel to Prosecute Violations.
Notwithstanding ORS 9.160 and 9.320, in any trial of a violation, and in any administrative enforcement proceeding in which a city attorney or district attorney is barred from appearing by statute or ordinance, the code enforcement officer who issued the citation for the offense may present evidence, examine and cross-examine witnesses and make arguments relating to:
A. The application of statutes and rules to the facts in the case;
B. The literal meaning of the statutes or rules at issue in the case;
C. The admissibility of evidence; and
D. Proper procedures to be used in the trial. [BC 2.10.023, added by Ordinance No. 4086, 2/7/00]
2.10.024 Attorney Barred from Appearing; Exception.
A district attorney or city attorney may aid in preparing evidence and obtaining witnesses but, except for good cause shown to the appropriate tribunal, shall not appear in a violation proceeding or administrative enforcement proceeding brought under this ordinance unless counsel for the defendant appears. The tribunal with jurisdiction over the proceeding shall ensure that the district attorney or city attorney is given timely notice if defense counsel is to appear. [BC 2.10.024, added by Ordinance 4086, 2/7/00]
2.10.025 Enforcement.
A. If a cited person fails to answer the summons or appear at a scheduled hearing as provided herein, a default judgment shall be entered for the scheduled forfeiture applicable to the charged infraction. In addition, when a person fails to appear for a hearing, the security posted, or an amount equal to the security waived, shall be ordered forfeited. Nothing in this subsection shall be construed to limit in any way the contempt powers of the municipal judge granted by the Charter or State law, and the judge may exercise those powers as the judge considers necessary and advisable in conjunction with any matter arising under the procedures set forth in this ordinance.
B. Any forfeiture assessed is to be paid no later than ten days after the receipt of the final order declaring that forfeiture. Such period may be extended upon order of the municipal judge.
C. Delinquent forfeitures and those brought to default judgment which were assessed for infractions may in addition to any other method be collected or enforced pursuant to ORS 30.310 or 30.315.
2.10.030 Lien Filing and Docketing.
A. When a judgment is given in municipal court in favor of the city for the sum of $10.00 or more, exclusive of costs or disbursements, the code enforcement officer may, at any time thereafter while the judgment is enforceable, file with the city’s finance director a certified transcript of all those entries made in the docket of the municipal court with respect to the action in which the judgment was entered.
B. Thereupon, the finance director shall enter the judgment of the municipal court on the city lien docket.
C. From the time of the entry of the municipal court judgment in the city lien docket, the judgment shall be a lien upon the real property of the person against whom judgment was entered in the municipal court. Except as provided in subsection D, entry of the municipal court judgment in the city lien docket shall not thereby extend the lien of the judgment more than ten years from the original entry of the judgment in the municipal court.
D. Whenever a judgment of the municipal court which has been entered pursuant to this section is renewed by the municipal court the lien established by subsection C of this section is automatically extended ten years from the date of the renewal order.
E. The finance director may file the transcript of the judgment with the county clerk for entry in the judgment docket of the circuit court.
2.10.040 Code Enforcement Officer Authorized to Promulgate Rules.
The code enforcement officer is authorized to promulgate any rules, procedures or guidelines the code enforcement officer considers advisable to enforce this ordinance; however, final approval of any rules, procedures or guidelines must be by the mayor.
2.10.045 Schedule of Forfeitures.
A. Infractions are classified for the purpose of determining forfeitures in the following categories:
1. Class 1 Civil Infractions.
2. Class 2 Civil Infractions.
3. Class 3 Civil Infractions.
B. An assessment of a forfeiture for an infraction shall be an assessment to pay an amount not exceeding:
1. $250.00 for a Class 1 Civil Infraction;
2. $150.00 for a Class 2 Civil Infraction; and
3. $50.00 for a Class 3 Civil Infraction.
2.10.050 Effect of New Ordinance.
A. Citations or complaints issued and filed with the court under the provisions of Ordinance No. 3072 or infractions committed prior to the effective date of this ordinance shall be processed in accordance with the provisions of Ordinance No. 3072.
B. Nothing in this ordinance shall be construed as a waiver of any forfeiture amount ordered and not paid under the provisions of Ordinance No. 3072.