Chapter 2.11 CIVIL INFRACTIONS

Chapter 2.11
CIVIL INFRACTIONS

Sections:

2.11.010 Applicability of chapter.

2.11.020 Purpose.

2.11.030 Definitions.

2.11.040 Voluntary correction.

2.11.050 Notice of civil violation.

2.11.055 Monetary penalty.

2.11.060 Hearing before the code enforcement board.

2.11.070 Abatement by the city.

2.11.080 Additional enforcement procedures.

2.11.090 Conflicts.

2.11.100 Meaning of terms.

2.11.110 Severability.

2.11.010 Applicability of chapter.

The provisions of this chapter shall apply to enforcement of the following chapters of the Wenatchee Municipal Code, and the Chelan County Shoreline Master Plan: Chapter 2.06 WCC (Permits); Chapter 2.07 WCC (Housing Code); Chapter 4.10 WCC (Stormwater Illicit Discharge Detection and Elimination); Chapter 5.76 WCC (Business Licenses); WCC 6A.10.060 and 6A.10.070 (abandoned refrigerators and freezers and storage lockers); WCC 6A.10.080 (Hunting); WCC 6A.10.090 (Tormenting or Harassing Birds and Animals); WCC 6A.10.100 (Prevention of Cruelty to Animals); Chapter 6A.14 WCC (Nuisances); Chapter 6A.16 WCC (Weeds, Trees and Growth); WCC 6A.34.130 (appeal of administrative decision regarding burglar alarms); Chapter 7.12 WCC (Trees and Hedges); Chapter 9.12 WCC (Water – Rules and Regulations); Chapter 9.13 WCC (Cross-Connection Control); WCC Title 10 (Zoning Code); Chapter 10.62 WCC (Landscape Code); WCC Title 11 (Subdivisions); Chapter 12.08 WCC (Resource Lands and Critical Areas Development); and WCC Title 13 (Administration of Development Regulations). (Ord. 2010-08 § 1; Ord. 2001-02 § 2)

2.11.020 Purpose.

The purpose of this chapter is to establish an efficient system to enforce those ordinances and chapters of the Wenatchee Municipal Code specified in WCC 2.11.010, to provide an opportunity for a prompt hearing on alleged violations of such ordinances and chapters, to establish monetary penalties for violations as authorized by RCW 35A.11.020, and to establish a standard procedure to be used by the city to abate unsafe or unlawful conditions. (Ord. 2001-02 § 2)

2.11.030 Definitions.

As used in this chapter, unless a different meaning is plainly required:

(1) “Abate” means to repair, replace, remove, destroy or otherwise remedy a condition which constitutes a civil violation, by such means, in such a manner and to such an extent as the applicable department director determines is necessary in the interest of the general health, safety and welfare of the community.

(2) “Act” means doing or performing something.

(3) “Applicable department director” means the director of the department or any designated alternate empowered by ordinance or by the city council to enforce a city of Wenatchee ordinance.

(4) “Civil infraction” means a violation for which a monetary penalty may be imposed as specified in this chapter. Each day or portion of a day during which a violation occurs is a separate violation.

(5) “Development” means the erection, alteration, enlargement, demolition, maintenance or use of any structure or the alteration or use of any land above, at or below ground or water level, and all acts authorized by a city of Wenatchee ordinance.

(6) “Emergency” means a situation which the applicable department director determines requires immediate action to prevent or eliminate a threat to the health or safety of persons or property.

(7) “Code enforcement board” means the Wenatchee code enforcement board established pursuant to Chapter 2.10 WCC.

(8) “Omission” means a failure to act.

(9) “Person” means any individual, firm, association, partnership, corporation or any entity, public or private.

(10) “Person responsible for the violation” means any owner(s), leaser(s), or other person(s) entitled to control, use and/or occupy property where a civil violation occurs.

(11) “Ordinance” means and includes the following as now or hereafter amended:

(a) The provisions of this chapter shall apply to enforcement of the following chapters of the Wenatchee Municipal Code, and the Chelan County Shoreline Master Plan: Chapter 2.06 WCC (Permits); Chapter 2.07 WCC (Housing Code); Chapter 4.10 WCC (Stormwater Illicit Discharge Detection and Elimination); Chapter 5.76 WCC (Business Licenses); WCC 6A.10.060 and 6A.10.070 (abandoned refrigerators and freezers and storage lockers); WCC 6A.10.080 (Hunting); WCC 6A.10.090 (Tormenting or Harassing Birds and Animals); WCC 6A.10.100 (Prevention of Cruelty to Animals); Chapter 6A.14 WCC (Nuisances); Chapter 6A.16 WCC (Weeds, Trees and Growth); WCC 6A.34.130 (appeal of administrative decision regarding burglar alarms); Chapter 7.12 WCC (Trees and Hedges); Chapter 9.12 WCC (Water – Rules and Regulations); Chapter 9.13 WCC (Cross-Connection Control); WCC Title 10 (Zoning Code); Chapter 10.62 WCC (Landscape Code); WCC Title 11 (Subdivisions); Chapter 12.08 WCC (Resource Lands and Critical Areas Development); and WCC Title 13 (Administration of Development Regulations).

(b) All standards, and procedures adopted pursuant to the above; and

(12) “Repeat violation” means a violation of the same ordinance in any location by the same person for which voluntary compliance previously has been sought within two years or a notice of civil violation has been issued within two years.

(13) “Violation” means an act or omission contrary to a city of Wenatchee ordinance including an act or omission at the same or different location by the same person, and including a condition resulting from such act or omission. (Ord. 2010-08 § 2; Ord. 2001-02 § 2)

2.11.040 Voluntary correction.

(1) Applicability. This section shall apply whenever the applicable department director determines that a violation of an ordinance has occurred or is occurring.

(2) General. The applicable department director shall pursue a reasonable attempt to secure voluntary correction of a violation by contacting the person responsible for the violation where possible, explaining the violation and requesting correction.

(3) Issuance of Voluntary Correction Agreement. A voluntary correction agreement may be entered into between the person responsible for the violation and the city, acting through the applicable department director.

(a) Content. A voluntary correction agreement is a contract between the city and the person responsible for the violation under which such person agrees to abate the violation within a specified period of time and according to specified conditions. A voluntary correction agreement shall include the following:

(i) The name and address of the person responsible for the violation; and

(ii) The street address or a description sufficient for identification of the building, structure, premises, or land upon which or within which the violation has occurred or is occurring; and

(iii) A description of the violation and a reference to the provision(s) of the city of Wenatchee ordinance or municipal code section which has been violated; and

(iv) The necessary corrective action to be taken, and a date and time by which the corrective action must be completed; and

(v) That the person responsible for abating the violation shall notify the city code enforcement officer within 24 hours of completing the work to schedule a compliance inspection; and

(vi) An agreement by a person responsible for the violation that the city of Wenatchee may abate the violation and recover its costs and expenses and a monetary penalty, as determined by the code enforcement board in accordance with WCC 2.11.055, from a person responsible for the violation if all terms of a voluntary correction agreement are not met; and

(vii) An agreement that by entering into a voluntary correction agreement a person responsible for the violation waives the right to appeal to the code enforcement board the violation and/or the required corrective action.

(b) Administrative Review of Compliance. The person responsible for abating the violations shall notify the city code enforcement officer within 24 hours of completing the abatement work to schedule a compliance inspection. After the person responsible for abating the violation has given notice to the city code enforcement officer of completion of the abatement required under the voluntary correction agreement, the code enforcement officer shall, within three working days, determine if the abatement is complete. If the code enforcement officer determines that the abatement is not complete, the person responsible for abating the violation shall have five days within which to file an appeal with the director of the department of community and economic development of the city for review of such determination, which review shall be completed within 30 days of the date of receipt of the notice of appeal. The only issue subject to review shall be whether there has been complete compliance with the terms of the voluntary correction agreement.

(c) Right to a Hearing Waived. A person responsible for a violation waives the right to appeal to the code enforcement board the violation and the required corrective action upon entering into a voluntary correction agreement.

(d) Extension – Modification. An extension of the time limit for correction or modification of the required corrective action may be granted by the applicable department director if a person responsible for a violation requests an extension of time or modification of the required corrective action in writing within 10 days but no less than three days prior to the date set in a voluntary correction agreement for completion of the corrective action and substantial progress in correcting the violation has occurred, but unforeseen circumstances render correction under the original conditions unattainable.

(e) Abatement by the City. The city may abate a violation in accordance with WCC 2.11.070 if the terms of a voluntary correction agreement are not met.

(f) Collection of Costs. If the terms of a voluntary correction agreement are not met, a person responsible for the violation shall be assessed a monetary penalty commencing the day following the date set for correction and thereafter, in accordance with WCC 2.11.055, plus all costs and expenses of abatement, in accordance with WCC 2.11.070(4). (Ord. 2008-11 § 1; Ord. 2001-02 § 2)

2.11.050 Notice of civil violation.

(1) Issuance.

(a) When the applicable department director determines that a violation has occurred or is occurring, and is unable to secure voluntary correction pursuant to WCC 2.11.040, the applicable department director may issue a notice of civil violation to a person responsible for the violation.

(b) The applicable department director may issue a notice of civil violation without having attempted to secure voluntary correction as provided in WCC 2.11.040 under the following circumstances:

(i) When an emergency exists; or

(ii) When a repeat violation occurs; or

(iii) When the violation creates a situation or condition which cannot be corrected; or

(iv) When the person knows or reasonably should have known that the action is in violation of a city of Wenatchee ordinance.

(2) Content. The notice of civil violation shall include the following information:

(a) The name and address of person to whom the notice of civil violation is being issued; and

(b) The street address or a description sufficient for identification of the building, structure, premises, or land upon or within which a violation has occurred or is occurring; and

(c) A description of the violation and a reference to the provision(s) of the city of Wenatchee ordinance or Wenatchee Municipal Code which has been violated; and

(d) The required corrective action and a date and time by which the correction must be completed after which the city may abate the unlawful condition in accordance with WCC 2.11.070 and the code enforcement board’s order; and

(e) The date, time and location of an appeal hearing before the code enforcement board which will be a least 10 days from the date the notice of civil violation is issued; and

(f) A statement indicating that the hearing will be canceled and no monetary penalty will be assessed if, the person responsible for the violation requests an extension of time in writing within three days of receiving the notice of civil violation and the applicable department director approves the request or approves the completed, required corrective action at least 48 hours prior to the hearing; and

(g) A statement that the costs and expenses of abatement incurred by the city pursuant to WCC 2.11.070(4) and a monetary penalty in an amount per day for each violation as specified in WCC 2.11.055(1) may be assessed against the person whom the notice of civil violation is directed as specified and ordered by the code enforcement board; and

(h) A statement indicating that a fee of $150.00 will be charged for each notice of civil violation issued for the purpose of covering administrative costs.

(3) Service of Notice. The applicable department director shall serve the notice of civil violation upon the person to whom it is directed, either personally or by mailing by certified mail, a copy of the notice of civil violation to such person at their last known address. If the person to whom it is directed cannot after due diligence be personally served within Chelan County and if an address for mailed service cannot after due diligence be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure. Proof of service shall be made by a written declaration under penalty of perjury executed by the person effecting the service, declaring the time and date of service, the manner by which the service was made and if by posting, the facts showing that due diligence was used in attempting to serve the person personally or by mail.

(4) Extension. No extension of the time specified in the notice of civil violation for correction of the violation may be granted, except by the applicable department director’s approval of a request for an extension of time by the person responsible for the violation received in writing within three days after receiving the notice of civil violation. (Ord. 2003-13 § 1; Ord. 2001-02 § 2)

2.11.055 Monetary penalty.

(1) A mandatory fee of $150.00 shall be imposed by the code enforcement board for each notice of civil violation affirmed by the CEB, plus the maximum monetary penalty for each separate violation per day or portion thereof shall be as follows:

(a) First day of each violation: $50.00;

(b) Second day of each violation: $75.00;

(d) Fourth day of each violation: $125.00;

(e) Each additional day of each violation beyond the four days: $150.00.

(2) Continued Duty to Correct. Payment of a monetary penalty does not relieve the person to whom the notice of civil violation was issued of the duty to correct the violation.

(3) Collection of Monetary Penalty.

(a) The monetary penalty constitutes a personal obligation of the person to whom the notice of violation is directed. Any monetary penalty assessed must be paid to the city of Wenatchee within 10 calendar days from the date of mailing of the code enforcement board’s decision or a notice from the city that penalties are due.

(b) The mayor or his/her designee is authorized to take appropriate action to collect the monetary penalty.

(c) The director of the department of community development is authorized to reduce monetary penalties assessed by the code enforcement board up to 90 percent of the final billing for first-time violators upon abatement of the violation and up to 100 percent of the final billing for first-time violators upon abatement of the violation, if the person responsible for the violation is the current owner/occupant or purchaser/occupant of the property under a valid land sales contract and the gross family income is no more than 50 percent of the Chelan County median income based on family size. The director of the department of community development’s decision to reduce or not reduce a monetary penalty shall not be appealable.

(d) The code enforcement board is authorized to reduce monetary penalties previously assessed by it for all violators to as low as 10 percent of the final billing upon abatement of the violation. The code enforcement board’s decision to reduce or not reduce a monetary penalty shall not be appealable.

(4) Repealed by Ord. 2010-08. (Ord. 2010-08 §§ 3, 4, 2010; Ord. 2008-05 § 1; Ord. 2003-13 § 2; Ord. 2001-02 § 2)

2.11.060 Hearing before the code enforcement board.

(1) Notice. A person to whom a notice of civil violation is issued will be scheduled to appear at a hearing before the code enforcement board not less than 10 calendar days after the notice of civil violation is issued or received.

(2) Prior Correction of Violation or an Extension of Time. The hearing will be canceled and no monetary penalty will be assessed if a person responsible for the violation requests an extension of time in writing within three days of the issuing or the receiving of the notice of civil violation, and the applicable department director approves the request or approves the completed, required corrective action at least 48 hours prior to the hearing.

(3) Recording of Code Enforcement Board Proceedings.

(a) All meetings of the code enforcement board shall be tape-recorded and copies of the recordings shall be maintained for a period of three years. Transcripts of the hearing shall be made available upon request and with payment of transcription costs by the requesting party.

(b) The director of community development or his/her appointed representative shall act as ex-officio secretary of the board and be responsible for:

(i) Preparation of code enforcement board agendas;

(ii) Mailing of hearing notices to board members and affected parties;

(iii) Preparation of board orders and notification to affected parties.

(4) Procedures. The code enforcement board shall conduct a hearing on the civil violation pursuant to the rules of procedure established by the code enforcement board. The applicable department director and the person to whom a notice of civil violation was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable. The determination of the applicable department director, as to the need for the required correction action, shall be accorded substantial weight by the code enforcement board in determining the reasonableness of the required corrective action.

(5) Decision of the Code Enforcement Board.

(a) The code enforcement board shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable and shall affirm, vacate, or modify the city’s decision regarding the alleged violation and/or the required corrective action, with or without written conditions.

(b) The code enforcement board shall issue an order to a person responsible for the violation that contains the following information:

(i) The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision.

(ii) The required corrective action.

(iii) The date and time by which the correction must be completed.

(iv) The monetary penalties assessed based on the criteria in subsection (5)(c) of this section.

(v) The date and time after which the city may proceed with abatement of the unlawful condition if the required corrective action is not completed.

(c) Assessment of Monetary Penalty. Monetary penalties assessed by the code enforcement board shall be in accordance with the monetary penalty schedule in WCC 2.11.055(1).

(i) The code enforcement board shall have the following options in assessing monetary penalties:

(A) Assess monetary penalties beginning on the date the notice of civil violation was issued or received and thereafter; or

(B) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the code enforcement board and thereafter; or

(D) Assess less than the maximum monetary penalty.

(ii) In determining the monetary penalty assessment, the code enforcement board shall consider the following factors:

(A) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;

(B) Whether the person failed to appear at the hearing;

(D) Whether the person showed due diligence and/or substantial progress in correcting the violation;

(E) Whether a genuine code interpretation issue exists; and

(F) Any other relevant factors.

(iii) The code enforcement board may double the monetary penalty schedule if the violation is a repeat violation. In determining the amount of the monetary penalty for repeat violations the code enforcement board shall consider the factors set forth in subsection (5)(c)(i) of this section.

(d) Notice of Decision. The code enforcement board shall mail, by both first class and certified mail, a copy of the decision to the person to whom a notice of civil violation was directed and to the applicable department director within 10 working days of the hearing.

(6) Failure to Appear. If the person to whom a notice of civil violation was issued fails to appear at the scheduled hearing, the code enforcement board will enter an order finding that the violation occurred and assess an appropriate monetary penalty. The city will carry out the code enforcement board’s order and recover all related expenses and fees, plus the cost of the hearing and any monetary penalty from that person.

(7) Appeal.

(a) Code Enforcement Decisions. The decision of the code enforcement board shall be final unless within 30 days of the date of the decision a written request for appeal is filed with the department of community development.

(b) Daily Monetary Penalties. Any ongoing daily monetary penalties imposed by the code enforcement board shall be final unless within 30 days of the date the daily monetary penalty took effect a written request for appeal is filed with the department of community development.

(c) Appeal Hearing. Appeals under this chapter shall be heard and determined by the city’s hearing examiner. Appeals submitted to the hearing examiner shall be resolved within 60 days from the date of filing and a transcript of the findings of fact of the hearing examiner shall be made available to the owner or other party in interest upon demand.

(8) Administrative Review of Compliance. The person responsible for abating the violations shall notify the city code enforcement officer within 24 hours of completing the abatement work to schedule a compliance inspection. After the person responsible for abating the violation has given notice to the city code enforcement officer of completion of the abatement required under the notice of decision issued by the code enforcement board, the code enforcement officer shall, within three working days, determine if the abatement is complete. If the code enforcement officer determines that the abatement is not complete, the person responsible for abating the violation shall have five days within which to file an appeal with the director of the department of community and economic development of the city for review of such determination, which review shall be completed within 30 days of the date of receipt of the notice of appeal. The only issue subject to review shall be whether there has been complete compliance with the terms of the code enforcement board’s notice of decision. (Ord. 2010-08 § 5; Ord. 2008-11 § 2; Ord. 2005-05 § 2; Ord. 2001-02 § 2)

2.11.070 Abatement by the city.

(1) The city may abate the condition which was caused by or continues to be a civil violation when:

(a) The terms of voluntary corrective agreement pursuant to WCC 2.11.040 have not been met; or

(b) A notice of civil violation has been issued pursuant to WCC 2.11.050, a hearing has been held pursuant to WCC 2.11.060 and the required correction has not been completed by the date specified in the code enforcement board’s order; or

(2) Summary Abatement. Whenever any violation of an ordinance causes a condition the continued existence of which constitutes an immediate and emergent threat to the public health, safety or welfare or to the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for it, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.

(3) Authorized Action by the City. Using any lawful means, the city may enter upon the subject property and may remove or correct the condition that is subject to abatement. The city may seek such judicial process as it deems necessary to effect the removal or correction of such condition.

(4) Recovery of Costs and Expenses. The costs, including incidental expenses, of correcting the violation shall be billed to the owner or other party of interest responsible for the violation and shall become due and payable to the city of Wenatchee within 10 calendar days. The term “incidental expense” shall include, but not be limited to, personnel costs, both direct and indirect, including attorney’s fees; costs incurred in documenting the violation; hauling, storage and disposal expenses; and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work and the costs of any required printing and mailing.

(a) If the costs incurred by the city for repairs, alterations or improvements, or of vacating and closing, or of demolition and removal are not paid after a written demand upon the owner and other persons named as responsible parties in the complaint, such costs shall be assessed against the property for which the costs were incurred in the manner provided below.

(b) If the building is removed or demolished by the city, the director of the department of community development shall, if possible, sell the salvable materials from the building and shall apply the proceeds of the sale to the reimbursement of the costs of demolition and removal. Any funds remaining shall be paid to the owner.

(c) After notice to the owner that all or a portion of the costs have not been paid, the director of the department of community development shall certify the amount owing to the Chelan County treasurer for assessment.

(d) Upon certification by the city director of the department of community development of the amount due and owing, the Chelan County treasurer or his/her designee shall enter the amount of the assessment upon the tax rolls against the property for the current year and the same shall become a part of the general taxes for that year to be collected at the same time and with interest at such rates and in such manner as provided for in RCW 84.56.020 for delinquent taxes, and when collected to be deposited to the credit of the general fund of the city.

(e) The assessment shall constitute a lien against the property which shall be of equal rank with state, county, and municipal taxes as provided for in RCW 35.80.030(1)(h).

(5) Interference. No person shall obstruct, impede, or interfere with the city or its agents, or with any person who owns, or holds any interest or estate in any property, in performing any acts necessary to correct the violation. (Ord. 2010-08 § 6; Ord. 2001-02 § 2)

2.11.080 Additional enforcement procedures.

The provisions of this chapter are not exclusive, and may be used in addition to other enforcement provisions authorized by the Wenatchee Municipal Code except as precluded by law. (Ord. 2001-02 § 2)

2.11.090 Conflicts.

In the event of a conflict between this chapter and any other provision of the Wenatchee ordinances or Wenatchee Municipal Code providing for a civil penalty, this chapter shall control. The provisions of traffic infractions shall not be controlled by this chapter. (Ord. 2001-02 § 2)

2.11.100 Meaning of terms.

For the purposes of this chapter, whenever the terms “civil infraction” and “civil penalty” are used in any code or ordinance of the city, those terms shall be deemed to have the same meaning as the terms “civil violation” and “monetary penalty,” respectively, as used herein. (Ord. 2001-02 § 2)

2.11.110 Severability.

If any one or more sections, subsections or sentences of this chapter are held to be unconstitutional or invalid, such decision shall not affect the validity to the remaining portion of this chapter and the same shall remain in full force and effect. (Ord. 2001-02 § 2)