Chapter 24.07
ADMINISTRATIVE NOTICE PROCEEDINGS, CIVIL PENALTIES AND ABATEMENT

Sections:

24.07.010    Purpose.

24.07.020    Definitions.

24.07.030    Administration – Civil penalties.

24.07.040    Violations as nuisances.

24.07.050    Civil penalty.

24.07.060    Abatement.

24.07.070    Notices of the director.

24.07.080    Method of serving director’s notice or order.

24.07.090    Hearing and appeals.

24.07.100    Final determination.

24.07.110    Supplemental notice.

24.07.120    Notice enforcement.

24.07.130    Suspension and revocation of permits.

24.07.140    Civil suit for collection of penalties and costs of abatement and enforcement of lien.

24.07.150    Severability.

24.07.010 Purpose.

The purpose of this chapter is to establish a uniform system for administrative notices, civil penalties, abatement, hearings, appeals and enforcement for violations of the Whatcom County health code. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part)).

24.07.020 Definitions.

As used in this chapter:

“Administrative costs” means the cost of time reasonably spent by WCHD administrative and enforcement personnel and costs incurred for legal representation, with regard to the specific violation for which such costs are assessed.

“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.

“Director” means the administrative director of Whatcom County health department (WCHD) or a representative authorized by the administrative director.

“Health regulations” as used in this chapter shall include any existing or future provision contained in the Whatcom County health code (Ordinance 89-24, as amended and codified in this title and referred to herein as “WCHC”) and shall also include any condition of a permit issued pursuant to WCHC, and shall include any rules of the State Board of Health and any state or federal regulations adopted by reference by the board.

“Nuisance” means doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, health or safety of others, offends decency, or unlawfully interferes with, obstructs, or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property.

“Permit” means a written document issued pursuant to this title by the director authorizing a person to perform activities at a specific location and which may include specified conditions for operation.

“Person” as used in this chapter shall include any natural person, organization, corporation or partnership and their agents or assigns.

“Public nuisance” as used in this chapter is defined as a nuisance which affects the rights of community or neighborhood, although the extent of the nuisance may be unequal.

“Violation” means an act or omission contrary to a health regulation or permit 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. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part)).

24.07.030 Administration – Civil penalties.

The director is hereby authorized to utilize the procedures of this chapter in order to enforce any health regulation or permit condition. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part)).

24.07.040 Violations as nuisances.

All violations of health regulations are determined to be detrimental to the public health, safety, and welfare and are hereby declared to be public nuisances. All conditions that are determined by the director to be in violation of any health regulations shall be subject to the provisions of this chapter and may be corrected by any reasonable and lawful means as provided herein. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part)).

24.07.050 Civil penalty.

In order to encourage compliance with the health regulations and with the conditions of permits issued under these health regulations, a system for imposing civil penalties is hereby adopted. In addition to or as an alternative to any other judicial or administrative remedy provided herein or by law, any person who violates a health regulation shall be subject to a civil penalty. The director may assess separate civil penalties for separate violations of any health regulation. Penalties shall be directly assessed by WCHD until such violation is corrected.

The initial violation of a health regulation shall be considered a Class 2 civil infraction with a maximum penalty of $125.00 per day.

Once a violation of a health regulation has been established, a second violation of the same regulation shall be considered a Class 1 civil infraction with a maximum penalty of $250.00 per day.

Once a second violation has been established, the third violation of the same health regulation by the same person shall be considered to be a misdemeanor and is a criminal offense with a maximum penalty of $1,000 per day and/or 90 days in jail. All civil penalties collected pursuant to this regulation shall be deposited in the county current expense fund. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part)).

24.07.060 Abatement.

In addition to any other remedy provided herein or by law, the director may require any violation of a health regulation to be abated. The director may require any person, who creates or maintains a public nuisance caused by violation of any health regulation, to commence corrective work and to complete the work within such time as the director determines reasonable under the circumstances. If the required corrective work is not commenced or completed within the time specified, the director may proceed to abate the public nuisance and cause the work to be done. The director will charge the costs thereof as a joint and several personal obligation of each person who is in violation. The costs of abatement may include administrative costs. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.070).

24.07.070 Notices of the director.

A. Commencement of Proceedings. Whenever the director has reason to believe that a violation of a health regulation exists, the director shall provide for an administrative predeprivation hearing within seven calendar days. At the predeprivation hearing the owner or operator of the source of the violation, the person in possession of the property where the violation originates, the person otherwise causing or responsible for the violation and/or their authorized representative may show cause as to why a violation of the health regulation does not exist.

Following the administrative predeprivation hearing, if the director believes that the violation does exist, the director shall issue a notice to the owner or operator of the source of the violation, the person in possession of the property where the violation originates, and/or the person otherwise causing or responsible for the violation. The notice may be posted on the property, in a conspicuous location, in addition to service of notice as provided in WCC 24.07.080 and shall contain:

1. The street address when available and a legal description of real property and/or description of personal property sufficient for identification of the location of the violation;

2. A statement that the director has found the person to be in violation of a health regulation, with a brief and concise description of the conditions found to be in violation;

3. A statement of the corrective action required to be taken. If the director has determined that corrective work is required, the notice shall require that all permits be obtained and the work be commenced and completed within such time as the director shall determine is reasonable under the circumstances;

4. A statement specifying the amount of any civil penalty assessed on account of the violation, if such civil penalty is assessed in connection with said notice, and, if applicable, the conditions on which the assessment of such civil penalty is contingent;

5. Statements advising that:

a. If any required work is not commenced or completed within the time specified, the director may proceed to abate the violation and cause the work to be done and charge the costs thereof, including administrative costs, as a joint and several personal obligation of any person in violation;

b. If a civil penalty is not assessed, it may be assessed, or if any assessed civil penalty is not paid, the director will charge the amount of the penalty as a joint and several personal obligation of any person in violation; along with administrative costs;

6. A statement advising that the notice shall become final unless, not later than 10 working days after the notice is served, any aggrieved person submits in writing a notice of appeal to the director.

B. Cease and Desist Order. In an emergency situation where there is a threat to the public health or environment with the potential for irreparable damage or imminent harm, the director may issue a cease and desist order that shall take effect immediately.

The director may issue a cease and desist order for failure to obtain a permit issued pursuant to any health regulation.

The cease and desist order shall provide for an administrative postdeprivation hearing scheduled within three working days following receipt of the cease and desist order. Failure to comply with a cease and desist order shall be a misdemeanor punishable upon a conviction by a minimum fine of $500.00 up to a maximum of $1,000 or 90 days in jail, or both. Under no circumstances may the court defer or suspend any portion of the minimum $500.00 for any conviction under this section. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.080).

24.07.080 Method of serving director’s notice or order.

Service of the notice or order shall be made upon all persons identified in the notice or order either personally, conspicuously posted on the property, or by mailing a copy of such notice or order by certified mail, postage prepaid, return receipt requested to such persons at their last known address. If the address of any such person cannot reasonably be ascertained, then a copy of the notice or order shall be mailed to such person at the address of the location of the violation. The failure of any such person to receive such notice or order shall not affect the validity of any proceedings taken under this chapter. Service by certified mail in the manner herein provided shall be effective on the date of mailing. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.100).

24.07.090 Hearing and appeals.

A. Notice of Appeal. Any aggrieved person may appeal any administrative notice, any assessment of civil penalty, director’s decision or order by submitting to the director a written request for a hearing within 10 working days of the service of the notice, order or decision. The notice of appeal shall cite the notice, order or decision appealed from and contain a brief statement of the reasons for seeking an appeal hearing.

B. Notice and Timing of Appeal Hearing. After receipt of a notice of appeal, the director shall transmit the notice of appeal, and the notice or decision appealed from, to the hearing examiner. An appeal hearing shall be conducted on the record. Written notice of the time and place of the hearing shall be given at least 10 working days prior to the date of the hearing to each appealing party, to the director whose notice, order or decision is being appealed, and to all other interested persons who have requested in writing that they be so notified.

1. In the case of an appeal from a notice of contamination issued under Chapter 24.13 WCC, the hearing shall be held not less than 20 days and not more than 30 days after serving of the notice as required by RCW 64.44.030.

C. Conduct of Appeals. All appeals shall be conducted in accordance with Chapter 20.92 WCC.

D. Combination of Appeal. Whenever possible, the appeal from the director’s administrative notice, order or decision shall be combined with any other appeal from enforcement actions relating to the same subject matter and falling within the jurisdiction of the hearing examiner. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.110).

24.07.100 Final determination.

A. Finalization of Administrative Notice. Any administrative notice or order duly issued by the director pursuant to the procedures contained in this title shall become final 10 working days after its issuance, unless a written notice of appeal is received. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.120).

24.07.110 Supplemental notice.

The director may at any time add to, rescind in part, or otherwise modify a notice or order by issuing a supplemental notice or order. The supplemental notice shall be governed by the same procedures applicable to all notices as contained in this regulation. The authority granted to the director by this section includes without limitation the discretion to reduce or waive any civil penalty imposed under the authority of this chapter, and may be exercised at any time, whether or not appeal to the hearing examiner or superior court has been taken. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.130).

24.07.120 Notice enforcement.

A. Enforcement of Final Notice. If, after any notice or order has become final, the person to whom such order is directed fails, neglects, or refuses to comply with such notice or order, including refusal to pay a civil penalty assessed thereunder, the director may enforce the rules and regulations cited in the notice or order by any means authorized herein or as otherwise authorized by law.

B. Enforcement Stayed Pending Appeal. Enforcement of any notice and order of the director issued pursuant to this chapter shall be stayed during the pendency of any appeal under this regulation, except where the director determines that the violation will cause immediate and irreparable harm and so states in the notice, or where a cease and desist order has been duly issued. Civil penalties assessed for a continuing violation shall accumulate during the pendency of an appeal concerning that violation, but shall not become due and payable until the notice appealed from has become final. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.140).

24.07.130 Suspension and revocation of permits.

A. Suspension and Revocation Authorized. The director may suspend or revoke any permit issued under the health regulation on:

1. Failure of the holder to comply with the requirements of any health regulation; or

2. Failure to comply with permit conditions; or

3. Failure of the holder to comply with any notice issued pursuant to the health regulations; or

4. Wrongful interference with the director in the performance of his duties; or

5. Discovery of the director that a permit was issued in error or on the basis of incorrect information supplied to WCHD.

B. Notice of Revocation/Suspension – Appeal. Such permit, suspension or revocation shall be carried out through the notice provisions of this chapter, and the suspension or revocation shall be effective upon service of the notice upon the holder or operator. The holder or operator may appeal such a suspension or revocation as provided by this chapter. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.150).

24.07.140 Civil suit for collection of penalties and costs of abatement and enforcement of lien.

A. Civil Suit Authorized. WCHD may institute a civil suit in any court of appropriate jurisdiction for the collection of any civil penalty imposed, for the cost of any work of abatement, and/or for its administrative costs pursuant to this chapter, against any person whose violation or violations of a health regulation resulted in the penalty, the abatement, or the costs. The civil penalty, the cost of abatement, and the administrative costs are also joint and several personal obligations of any person in violation.

B. Lien Authorized. WCHD shall have a lien for any civil penalty imposed, the cost of any work of abatement, and/or its administrative costs which may be foreclosed and enforced in the civil suit authorized by this chapter against the real property on which the civil penalty was imposed, the administrative cost incurred, or any of the work of abatement was performed.

C. Notice of Lien. The notice of the director pursuant to this chapter shall also give notice to the owner that a lien for the civil penalty, cost of abatement and/or administrative costs may be claimed by WCHD.

D. Priority of Lien. The lien claimed shall be subordinate to all existing special assessment liens previously imposed upon the same property and shall be paramount to all other liens except for state and county taxes with which it shall be on a parity.

E. Claim of Lien.

1. General. The director shall cause a claim of lien to be filed for record in the recording department of the Whatcom County auditor within 90 calendar days from the date of completion of the work or abatement performed pursuant to this regulation, or 90 calendar days from the date the notice of the director becomes final.

2. Contents. The claim of lien shall contain the following:

a. The authority for imposing a civil penalty or proceeding to abate the violation, or both;

b. A brief description of the civil penalty imposed or the abatement work done, or both, including the violations charged in the duration thereof, including the time the work is commenced and completed and the name of the persons or organizations performing the work;

c. A description of the property to be charged with the lien;

d. The name of the known owner or reputed owner, and if not known, that fact shall be alleged; and

e. The amount, including lawful and reasonable costs, for which the lien is claimed.

3. Verification. The director or his authorized representative shall sign and verify the claim by oath to the effect that the affiant believes the claim is just.

4. Amendment. The claim of lien may be amended in case of action brought to foreclose same, by order of the court, insofar as the interests of third parties shall not be detrimentally affected by amendment.

F. Recording. The director shall record and index the claims and notices described in this chapter.

G. Duration of Lien – Limitations of Action. No lien created by this chapter binds the property subject to the lien for a period longer than one year after the claim of lien has been filed, or if no lien claim is filed, then one year after the final order against any person, unless an action is commenced in the proper court within that time to enforce the lien or collect the civil penalties, administrative costs and costs of abatement.

H. Foreclosure.

1. Parties. All persons who have legally filed claims of liens against the same property prior to commencement of the action shall be joined as parties, either plaintiff or defendant.

2. Actions Saved. Dismissal of an action to foreclose a lien at the instance of a plaintiff shall not prejudice another party to the suit who claims a lien. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.160).

24.07.150 Severability.

Should any section, subsection, paragraph, sentence, clause or phrase of this chapter be declared unconstitutional or invalid for any reason, such decision shall not affect the validity of the remaining portions of this chapter. (Ord. 2005-055 Exh. B; Ord. 2002-070; Ord. 2002-006; Ord. 90-10 Exh. B (part). Formerly 24.07.170).