Chapter 11.20
ENFORCEMENT
Sections:
11.20.001 Purpose.
11.20.002 Scope.
11.20.003 Violations.
11.20.004 Duty to enforce, right of entry.
11.20.005 Investigation and notice of violation.
11.20.006 Time to comply.
11.20.007 Cease activity order.
11.20.008 Emergency order.
11.20.009 Review by hearing examiner.
11.20.010 Penalties.
11.20.001 Purpose.
The purpose of this chapter is to establish an efficient procedure for enforcement of code violations. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.002 Scope.
The procedures set forth in this chapter shall be utilized to enforce violations of BMC Titles 8, Health and Safety; 12, the Zoning Code; 13, the Shoreline Master Program; 14, Environment; 20, the Building Code; 15, the Subdivision Code; 17, the Transportation Regulations; 18, the Utilities Regulations; 21, the Methods to Mitigate Development Impacts; and 22, Landmark Preservation. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.003 Violations.
A. It is unlawful for any person to initiate, maintain or cause to be initiated or maintained the use of any structure, land or property within the city of Bothell without first obtaining the permits or authorizations required for the use by the applicable provisions of this code, the Bothell shoreline master program or the Bothell Municipal Code.
B. It is unlawful for any person to use, construct, erect, enlarge, alter, repair, move, improve, convert, equip, occupy, maintain, locate, demolish or cause to be used, constructed, located, or demolished any structure, land or property within the city of Bothell in any manner that is not permitted by the terms of any permit or authorization issued pursuant to the applicable provisions of this code, the Bothell shoreline master program or the Bothell Municipal Code; or any permit or other authorization issued pursuant thereto; provided, that the terms or conditions are explicitly stated on the permit or the approved plans.
C. In addition to the above, it unlawful to:
1. Remove or deface any sign, notice, complaint or order required by or posted in accordance with this chapter;
2. Misrepresent any material fact in any application, plans or other information submitted to obtain any building or construction authorization;
3. Fail to comply with any of the requirements of an order to cease activity issued under this chapter; and
4. Fail to comply with any of the applicable provisions of this code, the Bothell shoreline master program or the Bothell Municipal Code. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.004 Duty to enforce, right of entry.
A. Enforcement Authority. The director may call upon the police, fire, building, public works or other appropriate city departments to assist in enforcement. As used in this chapter, “director” shall also mean either the director of community development or the director of public works, and his or her duly authorized representative(s).
1. It shall be the duty of the community development director to enforce this chapter and the provisions of BMC Titles 8, 11, 12, 13, 14, 15, 20, 21 and 22, the Bothell shoreline master program.
2. It shall be the duty of the public works director to enforce this chapter and the provisions of BMC Titles 17 and 18.
B. Upon presentation of proper credentials, the director may, with the consent of the owner or occupier of a building or premises, or pursuant to a lawfully issued inspection warrant, enter at reasonable times any building or premises subject to the consent or warrant in order to perform the duties imposed by this chapter.
C. This chapter shall be enforced for the benefit of the health, safety and welfare of the general public, and not for the benefit of any particular person or class of persons.
D. It is the intent of this chapter to place the obligation of complying with its requirements upon the owner, occupier or other person responsible for the condition of the land and buildings within the scope of this code, the Bothell shoreline master program, and/or the Bothell Municipal Code.
E. No provision of or any term used in this chapter is intended to impose any duty upon the city or any of its officers or employees which would subject them to damages in a civil action. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.005 Investigation and notice of violation.
A. Investigation. The director shall investigate any structure, property or use which the director reasonably believes does not comply with the applicable standards and requirements of this code, the Bothell shoreline master program and/or the Bothell Municipal Code.
B. Notice of Violation. If after investigation the director determines that the applicable standards or requirements of this code, the Bothell shoreline master program and/or the Bothell Municipal Code have been violated, the director may serve a notice of violation upon the owner, tenant or other person responsible for the condition. The notice of violation shall contain the following information:
1. A separate statement of each standard, code provision or requirement violated;
2. What corrective action, if any, is necessary to comply with the standards, code provision or requirements;
3. A reasonable time for compliance;
4. A statement that if the violation is not already subject to criminal prosecution, that any subsequent violations may result in criminal prosecution as provided in BMC 11.20.010.
C. Service. The notice shall be served on the owner, tenant or other person responsible for the condition by personal service, registered mail, or certified mail with return receipt requested, addressed to the last known address of such person. If, after a reasonable search and reasonable efforts are made to obtain service, the whereabouts of the person(s) is unknown or service cannot be accomplished and the director makes an affidavit to that effect, then service of the notice upon such person(s) may be made by:
1. Publishing the notice once each week for two consecutive weeks in the city’s official newspaper; and
2. Mailing a copy of the notice to each person named on the notice of violation by first class mail to the last known address if known, or if unknown, to the address of the property involved in the proceedings.
D. Posting. A copy of the notice shall be posted at a conspicuous place on the property, unless posting the notice is not physically possible, or the director determines other methods of giving notice such as mailing, or personal service will reasonably apprise the property owner and/or other persons responsible for the alleged code violation of the pending code enforcement action.
E. Other Actions May Be Taken. Nothing in this section shall be deemed to limit or preclude any action or proceeding pursuant to BMC 11.20.007, Cease activity order; BMC 11.20.008, Emergency order; criminal prosecution as provided in BMC 11.20.010; or for the additional and injunctive relief described in BMC 11.20.010.
F. Optional Notice to Others. The director may mail, or cause to be delivered to any or all residential and/or nonresidential rental unit(s) in the structure or post at a conspicuous place on the property, a notice which informs each recipient or resident about the notice of violation, cease activity order or emergency order and the applicable requirements and procedures.
G. Amendment. A notice or order may be amended at any time in order to:
1. Correct clerical errors; or
2. Cite additional authority for a stated violation. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.006 Time to comply.
A. Determination of Time. When calculating a reasonable time for compliance, the director should consider the following criteria:
1. The type and degree of violation cited in the notice;
2. The stated intent, if any, of a responsible party to take steps to comply;
3. The procedural requirements for obtaining a permit to carry out corrective action;
4. The complexity of the corrective action, including seasonal considerations, construction requirements and the legal prerogatives of landlords and tenants; and
5. Any other circumstances beyond the control of the responsible party.
B. Order Becomes Final Unless Appealed. Unless an appeal is filed with the director for hearing before the hearing examiner in accordance with BMC 11.20.009, the notice of violation shall become the final order of the director. A copy of the notice shall be filed with the King County department of records and elections or the Snohomish County auditor. The director may choose not to file a copy of the notice or order if the notice or order is directed only to a responsible person other than the owner of the property. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.007 Cease activity order.
Whenever a continuing violation of this code will materially impair the director’s ability to secure compliance with this code, or when the continuing violation threatens the health, safety and welfare of the public, the director may issue a cease activity order specifying the violation and prohibiting any work or other activity at the site. A failure to comply with a cease activity order shall constitute a violation of this chapter. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.008 Emergency order.
Whenever any use or activity in violation of this code, the Bothell shoreline master program and/or the Bothell Municipal Code threatens the health, safety and welfare of the occupants of the premises or any member of the public, the director may issue an emergency order directing that the use or activity be discontinued and the condition causing the threat to the public health, safety or welfare be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property. A failure to comply with an emergency order shall constitute a violation of this chapter.
Any condition described in the emergency order which is not corrected within the time specified is hereby declared to be a public nuisance and the director is authorized to abate such nuisance summarily by such means as may be available. The cost of such abatement shall be recovered from the owner or person responsible or both in the manner provided by law. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.009 Review by hearing examiner.
A. The person incurring the penalty described in a notice of violation issued by the director pursuant to BMC 11.20.005 may obtain an appeal of the notice by requesting such appeal within 15 calendar days after service of the notice. When the last day of the period so computed is a Saturday, Sunday or federal or city holiday, the period shall run until 5:00 p.m. on the next business day. The request shall be in writing, and upon receipt of the appeal request, the director shall forward the request to the hearing examiner, pursuant to Chapter 2.54 BMC.
1. Notice of the appeal shall be sent to the following:
a. Appellant and/or the person(s) named on the notice of violation;
b. Affected city departments;
c. Affected agencies with jurisdiction;
2. The notice shall contain those items identified in BMC 11.19.002(F);
3. Notice of the appeal hearing shall be issued at least 10 calendar days prior to the hearing.
B. At or after the appeal hearing, the hearing examiner may:
1. Sustain the notice of violation;
2. Withdraw the notice of violation;
3. Continue the review to a date certain for receipt of additional information;
4. Modify the notice of violation, which may include an extension of the compliance date.
C. The hearing examiner shall issue a decision within 10 working days after the date of the completion of the review and shall cause the same to be sent to the person(s) named on the notice of violation under the same procedures described in BMC 11.20.005(C), and mailed to the complainant, where the complainant has provided an address and filed with the King County department of records and elections or the Snohomish County auditor, whichever is applicable.
D. The decision of the hearing examiner shall be final and conclusive, subject to reconsideration. In order to appeal the decision of the hearing examiner, a person with standing to appeal a decision imposing criminal penalties must appeal to the Bothell municipal court, and a person with standing to appeal a decision imposing civil penalties must make application for a land use petition under Chapter 36.70C RCW, within 21 calendar days of the issuance of the examiner’s decision. The cost of transcription of all records ordered certified by the court for such review shall be borne by the appellant. (Ord. 2023 § 1 (Exh. A), 2009; Ord. 1871 § 1, 2002; Ord. 1815 § 1, 2000; Ord. 1628 § 1, 1996).
11.20.010 Penalties.
A. Violations of Bothell Municipal Code.
1. Civil Penalty.
a. Any person violating or failing to comply with any of the provisions of this code, with the exception of the SMP, BMC Title 15, Subdivisions, and BMC Title 18, Utilities Infrastructure, shall be subject to a maximum penalty in the amount of $250.00 per day for each violation from the date set for compliance until compliance with the order is achieved. In addition to the actual penalty imposed, should the city violation be affirmed, the hearing examiner shall assess to the appellant an amount for the costs incurred by the city, and the examiner in prosecuting the appeal before the hearing examiner. These costs shall include those expenses incurred in preparing the appeal, issuing public notice as required under BMC 11.20.009(A), general clerical expenses, staff and examiner preparation time, site inspections, city attorney costs, and other expenses incurred by the city. City prosecution costs shall be waived should the violator correct the alleged violation 10 or more working days prior to the scheduled appeal hearing; provided, however, correction of the alleged violation prior to the scheduled appeal hearing shall not preclude the city from pursuing imposition of civil penalties at the hearing.
b. In addition to any penalty which may be imposed by the city, any person violating or failing to comply with any of the provisions of this code, with the exception of the SMP and BMC Title 15, Subdivisions, shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.
c. The penalty imposed by this section shall be collected by civil action brought in the name of the city. The director shall notify the city attorney in writing of the name of any person subject to the penalty, and the city attorney shall, with the assistance of the director, take appropriate action to collect the penalty.
d. The violator may show as full or partial mitigation of liability as determined by the hearing examiner:
(1) That the violation giving rise to the action was caused by the willful act, or neglect, or abuse of another; or
(2) That correction of the violation was commenced promptly upon receipt of the notice thereof, but that full compliance within the time specified was prevented by inability to obtain necessary materials or labor, inability to gain access to the subject structure, or other condition of the property or circumstance beyond the control of the defendant.
2. Special Penalties for Noise and Construction Work Hour Infractions.
a. Civil Noise Infraction. Any person violating or failing to comply with the provisions of Chapter 8.26 BMC shall be subject to a civil noise infraction for which a monetary penalty may be assessed and a stop work order issued. Penalties shall be as follows:
(1) First Offense. If a person has not violated the provisions of Chapter 8.26 BMC during the one-year period preceding the most recent violation, a warning shall be given and no monetary penalty shall be assessed.
(2) Second Offense. If a person has violated the provisions of Chapter 8.26 BMC within the one-year period preceding the most recent violation, a citation shall be issued assessing a monetary penalty in the amount of $250.00 and a stop work order shall be issued.
(3) Third Offense. If a person has violated the provisions of Chapter 8.26 BMC twice within the one-year period preceding the most recent violation, a citation shall be issued assessing a monetary penalty in the amount of $250.00, plus issuance of a stop work order. During the stop work period the violator shall submit a plan that includes the methods and operational changes to be implemented to prevent any future violations. The plan shall be reviewed and approved by the public improvements director prior to rescinding the stop work order.
(4) Fourth Offense and Any Additional Offense. If a person has violated the provisions of Chapter 8.26 BMC three or more times within the one-year period preceding the most recent violation, criminal penalties, as outlined under subsection (A)(4) of this section, shall be assessed.
3. Special Penalties for BMC Title 18, Utilities Infrastructure.
a. Basic Penalty. Each day or portion thereof during which a violation of the title exists is a separate violation of the title. The cumulative monetary penalty for each violation of the title shall be as follows:
(1) The penalty for the first day a violation exists is $100.00;
(2) The penalty for the second day a violation exists is $200.00;
(3) The penalty for the third day a violation exists is $300.00;
(4) The penalty for the fourth day a violation exists is $400.00;
(5) The penalty for each day a violation exists beyond four days is $500.00.
|
Day |
Fine for That Day |
Cumulative Total |
|---|---|---|
|
1 |
$100.00 |
$100.00 |
|
2 |
$200.00 |
$300.00 |
|
3 |
$300.00 |
$600.00 |
|
4 |
$400.00 |
$1,000.00 |
|
5 |
$500.00 |
$1,500.00 |
|
6 and up |
$500.00 |
$2,000.00 and up $500.00 per day |
b. Triple Penalties. Penalties may be trebled for:
(1) A repeat violation, which means an additional violation of a requirement of this title for which the responsible party has previously received a notice of violation and failed to correct the violation by the compliance date;
(2) A violation resulting in physical harm to persons or to private or public property;
(3) A knowing or deliberate violation. The responsible party shall assume the burden of proof for demonstrating that the violation was not deliberate;
(4) A violation resulting from gross negligence or reckless conduct.
c. Reduction of Penalties. Penalties may be reduced based upon one or more of the following mitigating factors:
(1) The responsible party shows due diligence and/or substantial progress in correcting the violations;
(2) Another responsible party was the primary cause of the violation;
(3) The responsible party was unaware of the violation and had not acted negligently or recklessly.
d. Penalty for Significant Violation. Responsible parties for violations causing significant harm to public health, safety or welfare, the environment, or public or private property shall be assessed the penalties set forth in the schedule above, or an amount equivalent to the economic benefit the responsible party derived from the violation, whichever is greater. “Significant harm” is harm which cannot be fully corrected or mitigated by the responsible party, and which cannot be adequately compensated for by assessment of penalties, costs, expenses or damages under this chapter. Economic benefit may be determined by an increase in market value of property, value received by the responsible party, savings in costs realized by the responsible party, increased income to the responsible party, or any other method reasonable under the circumstances.
e. Damages. Any party who violates any of the provisions of BMC Title 18 shall, in addition to any penalties provided for such violation, be liable for any cost, expense, loss or damage occasioned thereby to the city, plus a charge of 15 percent for administrative costs. This clause does not establish a cause of action that may be asserted by any party other than the city. Penalties, damage, costs and expenses may be recovered only by the city.
f. Effect of Payment of Penalties. The person to whom an order is directed is not relieved of the duty to take corrective action to correct the violation by payment of a monetary penalty pursuant to this title.
g. Enforcement and Collection of Penalty. The penalties provided for in this subsection may be enforced as otherwise provided in this chapter or in any other available manner and the penalties imposed may be collected as provided under subsection (A)(1)(a) of this section.
4. Criminal Penalties.
a. Any person violating or failing to comply with any of the applicable provisions of this code or Bothell Municipal Code, with the exception of the SMP and BMC Title 15, Subdivisions, and who has had a judgment entered against him or her pursuant to BMC 11.20.006 or 11.20.009 or its predecessors within the past five years shall be subject to criminal prosecution and upon conviction of a subsequent violation shall be fined in a sum not exceeding $5,000 or be imprisoned for a term not exceeding one year or be both fined and imprisoned. Each day of noncompliance with any of the applicable provisions of this code shall constitute a separate offense.
b. The above criminal penalty may also be imposed:
(1) For any other violation for which corrective action is not possible; and
(2) For any willful, intentional, or bad faith failure or refusal to comply with the standards or requirements.
c. In addition to any criminal penalty which may be imposed by the city, a violator may also be liable for damages and costs of restoration described in subsection (A)(1)(b) of this section.
5. As an alternative to any other enforcement provision of this code, any enforcement officer designated by the director of the community development department or the city attorney or their designee may issue a civil infraction as provided herein for a violation of this chapter and/or any nuisance violation as defined in this code and any such violation shall be enforceable as a civil infraction in the manner provided in the Washington State Infraction Rules for Courts of Limited Jurisdiction:
a. Authority to Issue – Code Enforcement Official. Whenever the designated code enforcement official determines that a violation has not been corrected following the issuance of a notice of violation in the form as prescribed in BMC 11.20.005, he/she shall be authorized to issue a notice of infraction, on an appropriate form for filing with the municipal court, to the property owner(s) and/or tenant(s) and/or to any person(s) causing or allowing or participating in the violation.
b. Authority to Issue – City Attorney. Alternatively, upon probable cause after review of the relevant facts, the city attorney or designee may issue a notice of civil infraction to the property owner(s) and/or tenant(s) and/or to any person(s) causing or allowing or participating in the violation. Notice of infractions issued by the city attorney shall be issued pursuant to the authority provided by the Infraction Rules for Courts of Limited Jurisdiction.
c. Infraction Process. Once the notice of infraction has been filed with the municipal court, it shall be sent in the normal course to the property owner(s), tenant(s) and/or to other person(s) causing or allowing or participating in the violation, and thereafter processed for court proceedings in accordance with applicable rules and procedures.
d. Infraction Penalty. Violations charged under this section shall be infractions and shall carry a maximum penalty of $250.00. Each day, location, violator and incident shall constitute a separate civil infraction.
e. Subsequent Violation Charged as Misdemeanors. It is provided, however, that if the same violator has been found, in any court of competent jurisdiction, to have previously committed an infraction violation for the same or similar conduct three or more separate times, with the infraction violations occurring at the same location and involving the same or similar sections of the Bothell Municipal Code, or other similar code or statute or regulation, any further violations shall constitute misdemeanors, punishable as provided in Chapter 1.24 BMC. For the purposes hereof, it shall be prima facie evidence that the same violator has previously been found to have committed any infraction if a certified copy of the judgment, docket or other court document showing that such violation was found committed is filed with the court.
6. Additional Relief. The director may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this code and/or the Bothell Municipal Code Appendix when civil or criminal penalties are inadequate to effect compliance.
B. Shoreline Master Program (SMP) Violations.
1. Civil Penalty. Any person who shall fail to conform to the terms of a permit issued under the Bothell SMP or who shall undertake development on the shorelines of the state without first obtaining any permit required under the SMP shall also be subject to a civil penalty not to exceed $1,000 for each violation. Each permit violation or each day of continued development without a required permit shall constitute a separate violation.
2. Criminal Penalty. In addition to incurring civil liability under this section, any person found to have willfully engaged in activities on the shorelines of the state in violation of the provisions of the SMP, the Shoreline Management Act, Chapter 90.58 RCW, or any rules or regulations adopted thereto, shall be guilty of a gross misdemeanor, and shall be punished by a fine of not less than $25.00 nor more than $1,000, or by imprisonment for not more than 90 days, or by both such fine and imprisonment; provided, that the fine for the third and all subsequent violations in any five-year period shall not be less than $500.00 nor more than $10,000.
3. Damages, Attorneys’ Fees and Costs. Any person subject to the SMP who violates any provision of the Shoreline Management Act or permit issued pursuant thereto shall be liable for all damage to public or private property arising from such violation, including the cost of restoring the affected area to its condition prior to violation. The city attorney may bring suit under this section on behalf of the city of Bothell. In addition to such relief, including money damages, the court in its discretion may award attorneys’ fees and costs of the suit to the prevailing party.
C. Subdivision Violations.
1. Any person, firm, corporation, or association or any agent of any person, firm, corporation, or association who violates any provision of Chapter 58.17 RCW or BMC Title 15, Subdivisions, relating to the sale, offer for sale, lease, or transfer of any lot, tract, or parcel of land, shall be guilty of a gross misdemeanor and shall be punished by a fine of not more than $5,000, or by imprisonment for not more than one year, or by both such fine and imprisonment. Each sale, offer for sale, lease or transfer of each separate lot, tract, or parcel of land in violation of any provision of Chapter 58.17 RCW or BMC Title 15, Subdivisions, shall be deemed a separate and distinct offense.
2. Whenever land within a subdivision granted final approval is used in a manner or for a purpose which violates any provision of Chapter 58.17 RCW, any provision of BMC Title 15, Subdivisions, or any term or condition of plat approval prescribed for the plat by the local government, then the prosecuting attorney, or the attorney general if the prosecuting attorney shall fail to act, may commence an action to restrain and enjoin such use and compel compliance with the provisions of Chapter 58.17 RCW or BMC Title 15, or with such terms and conditions. The costs of such action may be taxed against the violator. (Ord. 2045 § 2 (Exh. B), 2010; Ord. 2023 § 1 (Exh. A), 2009; Ord. 1815 § 1, 2000; Ord. 1649 § 1, 1996; Ord. 1628 § 1, 1996).