Chapter 20.82
CODE ENFORCEMENT
Sections:
20.82.010 Applicability of chapter.
20.82.020 Enforcement of the code – Infractions established.
20.82.030 Duty to enforce.
20.82.040 Investigation and enforcement.
20.82.050 Notice of violation and corrective order.
20.82.060 Notice of violation and corrective order – Time to comply.
20.82.070 Notice of violation and corrective order – Appeal before the hearing examiner.
20.82.080 Notice of violation and corrective order – Failure to comply.
20.82.090 Notice of infraction – Contents – Issuance – Service.
20.82.100 Notice of infraction – Filing.
20.82.110 Notice of infraction – Uncontested – Effect.
20.82.120 Notice of infraction – Response.
20.82.130 Notice of infraction – Failure to respond or appear – Default judgment.
20.82.140 Notice of infraction – Contested hearing.
20.82.150 Notice of infraction – Mitigation hearing.
20.82.160 Judgment – Fine – Restitution – Restoration – Costs – Attorney’s fees.
20.82.170 Enforcement of judgments.
20.82.180 Stop work order.
20.82.190 Emergency order.
20.82.200 Stop work order – Emergency order – Failure to comply.
20.82.210 Abatement.
20.82.220 Criminal penalties.
20.82.230 Definitions.
20.82.010 Applicability of chapter.
A. The provisions of this chapter, adopted pursuant to the authority of Chapter 7.80 RCW, apply to enforcement of Chapter 8.28 PMC, PMC Titles 17, 20, 21 and 23 and to enforcement of codes adopted by reference in those titles and chapters. For purposes of this chapter, such titles and chapters are referred to as the “code.” Nothing herein is intended to preclude the city from pursuing any legal or equitable relief necessary to protect the public health, welfare or safety.
B. Infractions established in other chapters of Pacific’s Municipal Code, other than traffic infractions, shall be governed by PMC 20.82.090 through 20.82.170, 20.82.210 and 20.82.220. The city administrator shall designate the enforcement officer(s) for such chapters. (Ord. 1409 § 1, 1999).
20.82.020 Enforcement of the code – Infractions established.
A. The code shall be enforced as provided in this chapter.
B. The code 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.
C. Any person who violates the code shall have committed a civil infraction and shall be proceeded against as provided herein. A separate infraction shall occur every day the infraction continues to occur.
D. The Pacific municipal court shall have jurisdiction to hear and determine civil infractions, to issue process and to enforce its orders and its judgments all as provided in Chapters 3.50 and 7.80 RCW. (Ord. 1664 § 2, 2007; Ord. 1409 § 1, 1999).
20.82.030 Duty to enforce.
A. The city community development director is designated as the “enforcement officer” responsible for enforcing the code. With the prior approval of the city administrator, the community development director may call upon other city employees and officers to assist in enforcement.
B. Upon presentation of proper credentials, the enforcement officer 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 the code.
C. The obligation of complying with the requirements of the code rests with the owner, occupier or other person responsible for the condition of the land and buildings within the scope of the code.
D. The requirements placed upon the enforcement officer or any city officer by this chapter are not 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. 1409 § 1, 1999).
20.82.040 Investigation and enforcement.
A. The enforcement officer may investigate any structure or use which the enforcement officer believes does not comply with the code.
B. Whenever the enforcement officer determines that a violation of the code has occurred there shall be served upon the responsible person either:
1. A notice of violation and corrective order; or
2. A notice of infraction. (Ord. 1765 § 1, 2010; Ord. 1642 § 1, 2006; Ord. 1409 § 1, 1999).
20.82.050 Notice of violation and corrective order.
A. Whenever the enforcement officer determines that the code has been violated, a notice of violation and corrective order may be served upon the person responsible for the condition, unless this chapter requires issuance of a notice of infraction. The notice of violation shall:
1. Separately identify each violation;
2. Identify any necessary corrective action and a time for compliance;
3. Advise of the right of review before the city’s hearing examiner and the cost of such a review; and
4. Advise that any subsequent violations may be prosecuted as a civil infraction and may result in civil prosecution.
B. A notice of violation shall be served on the owner, tenant, occupier, manager, agent, 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 enforcement officer 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.
C. Whenever possible, a copy of the notice shall be posted at a conspicuous place on the property.
D. A copy of the notice shall be mailed to all property owners or resident within 300 feet of the property.
E. The enforcement officer may mail or deliver to all residential and/or nonresidential rental units on the property a notice informing each recipient of the notice of violation and corrective order, stop work order or emergency order and the applicable requirements and procedures.
F. A notice of violation may be amended at any time in order to:
1. Correct clerical errors; or
2. Cite additional authority for a stated violation. (Ord. 1738 § 1, 2009; Ord. 1642 § 2, 2006; Ord. 1409 § 1, 1999).
20.82.060 Notice of violation and corrective order – Time to comply.
A. The time for taking corrective action shall be established taking into consideration:
1. The violation(s);
2. Permits needed to take corrective action;
3. The difficulty of the corrective action; and
4. Other circumstances, including cost, deemed relevant by the enforcement officer.
B. Unless an appeal is filed with the enforcement officer for hearing before the hearing examiner, the notice of violation shall become the final administrative order of the enforcement officer. A copy of the notice may be filed and recorded with the Pierce or King County recorder. (Ord. 1642 § 3, 2006; Ord. 1409 § 1, 1999).
20.82.070 Notice of violation and corrective order – Appeal before the hearing examiner.
A. The person incurring the penalty described in a notice of violation issued by the enforcement officer may obtain an appeal of the notice by requesting such appeal within 10 calendar days after receiving or otherwise being served with 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 4:30 p.m. on the next business day. The request shall be in writing, and upon receipt of the appeal request, the enforcement officer shall schedule an appeal hearing before the hearing examiner.
In order to perfect the appeal, the appellant is required to submit the amount listed on the city’s fee schedule for hearing examiner fees 10 days before the schedule hearing. Failure to perfect the appeal by timely payment of the hearing examiner fee shall constitute a waiver of the requested appeal. When such a waiver occurs, the notice of violation shall become the final administrative order of the enforcement officer pursuant to PMC 20.82.060.
Notice of the hearing shall be sent to the appellant and/or the person(s) named on the notice of violation.
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; or
4. Modify the notice of violation, which may include an extension of the compliance date.
C. The hearing examiner shall issue a written decision within 14 days of 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.
D. The decision of the hearing examiner shall be final and conclusive unless appealed. In order to appeal the decision of the hearing examiner, a person with standing to appeal must file a land use petition, approved in Chapter 36.70C RCW (Land Use Petition Act), within 21 days of the issuance of the hearing examiner’s decision. The cost for transcription of all records ordered certified by the superior court for such review shall be borne by the appellant. (Ord. 1738 § 2, 2009; Ord. 1642 § 4, 2006; Ord. 1409 § 1, 1999).
20.82.080 Notice of violation and corrective order – Failure to comply.
A. Any person violating or failing to comply with the provisions of the Pacific Municipal Code (PMC) may be issued a notice of violation which shall carry with it a cumulative monetary penalty of $500.00 per day for each violation from the date set for compliance until compliance with the notice of violation or order is achieved;
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 the PMC 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 under a notice of violation may be collected by civil action brought in the name of the city. The enforcement officer may notify the city attorney of the name of any person subject to the penalty, and the city attorney may, with the assistance of the enforcement officer, take appropriate action to collect the penalty, including but not limited to attachment of a lien to the property; and
D. The enforcement officer shall have the discretion to impose penalties in an amount lower than those set forth above.
E. The enforcement officer 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 PMC. The remedies provided in this chapter are cumulative and shall be in addition to any other remedy provided by law. (Ord. 1642 § 5, 2006; Ord. 1409 § 1, 1999).
20.82.090 Notice of infraction – Contents – Issuance – Service.
A. Whenever the enforcement officer determines that a violation of the code has occurred, there may be served upon the owner or other responsible person a notice of infraction that shall:
1. State that the notice of infraction represents a determination that a civil infraction has been committed by the person cited, and that the determination is final unless contested;
2. State that a civil infraction is not a criminal offense and that imprisonment may not be imposed as a sanction;
3. Separately identify each infraction and that a separate infraction is committed every day that the violation continues to occur, and the daily fine imposed for each violation, and explain the possible response to the notice of infraction, and how each may be exercised;
4. Identify any necessary corrective action and a time for compliance;
5. State that with regard to a contested infraction, the city shall bear the burden of proving by a preponderance of the evidence at a hearing that the violation(s) occurred, and that at such hearing the alleged violator may call witnesses, including the enforcement officer, and present evidence; and that with regard to a request for a hearing on mitigating circumstances, the person cited will be deemed to have committed the infraction and will not be allowed to subpoena witnesses;
6. State that the person must respond within 15 days of the date of the notice and require that the person named in the notice of infraction sign a promise to respond; and
7. State that a failure to respond or appear as promised will result in the entry of a default judgment in the amount of the fine that has accrued to the date of entry of the default judgment that daily fines will continue to accrue, and that failure to respond or to appear as promised is a misdemeanor punishable by a fine and/or imprisonment.
B. The notice of infraction may be issued upon certification that there is probable cause to believe the infraction occurred:
1. By the enforcement officer; or
2. By the city prosecutor if the enforcement officer files a written statement that the civil infraction was committed in the officer’s presence or a written statement establishing that the officer has reasonable cause to believe the civil infraction was committed.
C. The notice of infraction shall be served upon the person responsible for the violation by personal service pursuant to subsection (C)(1) of this section, or, in the event the person responsible for the violation cannot be personally served after reasonable attempt(s) to do so, by mail pursuant to subsection (C)(2) of this section. If the person responsible for the violation cannot be personally served and if an address for mailed service cannot be ascertained, notice shall be served by posting a copy of the notice of civil violation conspicuously on the affected property or structure pursuant to subsection (C)(3) of this section and/or publication pursuant to subsection (C)(4) of this section. The notice may also be filed with the court pursuant to subsection (C)(5) of this section.
1. Personal Service. Personal service on the person responsible for the violation shall mean handing the notice to the person responsible for the violation or leaving it at his or her dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or leaving it at his or her office or place of employment with a person in charge thereof; or
2. Mailing. Mailing notice to the last known address of the person responsible for the violation shall be accomplished by placing one copy of the notice of violation in the mails of the United States by ordinary first class mail, directed to the last known address of the person responsible for the violation, and by placing another copy in the mails of the United States in a form requiring a signed receipt showing when and to whom it was delivered and directed to the last known address of the person responsible for the violation. The last known address shall include the address appearing on the last equalized tax assessment roll of the county assessor; or
3. Posting. Posting shall mean posting a copy of the notice in a conspicuous place on the property, with at least one copy of such notice placed at the entryway to the property or structure if an entryway exists; or
4. Publication. Publication of notice shall mean publication as set forth in RCW 4.28.100.
5. Service by the Court. The enforcement officer or the prosecuting attorney filing the notice of infraction with the court, whereupon the court shall have the notice served either personally or by certified mail. If the notice of infraction served by mail is returned to the court as undeliverable, the court shall issue a summons.
6. Legal Interests. If known or disclosed from the county assessor’s office, one copy of the notice of civil violation and order or order to revoke permit may be served on the holder of any mortgage or deed of trust or other lien or encumbrance of record or any lease of record or the holder of any other estate or legal interest of record in any building, structure, land, personal property or premises on which a violation has occurred or is occurring. (Ord. 1664 § 3, 2007; Ord. 1642 § 6, 2006; Ord. 1409 § 1, 1999).
20.82.100 Notice of infraction – Filing.
A notice of infraction shall be filed in the municipal court within 48 hours of the date of the notice, excluding Saturdays, Sundays and holidays. (Ord. 1409 § 1, 1999).
20.82.110 Notice of infraction – Uncontested – Effect.
Unless contested as provided herein, the notice of infraction constitutes a determination that the person named in the notice of infraction committed the violation. (Ord. 1409 § 1, 1999).
20.82.120 Notice of infraction – Response.
A. A person who receives a notice of infraction shall respond to the court, in person or by mail, within 15 days of the date the notice was served.
B. A person named in a notice of infraction who does not intend to contest the notice shall respond by completing the appropriate section of the notice and returning it to the court by the
date required, along with a check or money order in the amount of the prescribed fine. An appropriate order shall be entered into the court records and a copy thereof furnished to the city planner.
C. A person named in the notice of infraction who does intend to contest the notice shall respond by completing the appropriate section of the notice and returning it to the court by the date required.
D. A person named in a notice of infraction who does not intend to contest the notice, but who wishes to plead mitigating circumstances shall respond by completing the appropriate section of the notice and returning it to the court by the date required.
E. Whenever a notice is contested or mitigating circumstances are pleaded, the court shall schedule a hearing no sooner than 14 days nor more than 120 days from the date of the notice of infraction. (Ord. 1409 § 1, 1999).
20.82.130 Notice of infraction – Failure to respond or appear – Default judgment.
The courts shall enter an order of default and impose the maximum fine ($500.00 per day) on each violation whenever a person named in the notice of infraction fails either to respond or appear at a requested hearing. The order of default shall also identify that the daily fines shall continue to accrue until the violation is remedied, either by the violator or by the city. (Ord. 1664 § 4, 2007; Ord. 1409 § 1, 1999).
20.82.140 Notice of infraction – Contested hearing.
A. A hearing held to contest a notice of infraction shall be without a jury.
B. The court may consider the notice of infraction and any sworn statement submitted by the enforcement officer in lieu of personal appearance and testimony. The person named in the notice of infraction may appear through counsel, subpoena witnesses, including the enforcement officer, present evidence, and examine witnesses.
C. The city shall bear the burden of proving by a preponderance of the evidence that the violation was committed and that the person named in the notice of infraction committed the violation.
D. If the court determines that the city failed to establish that the violation was committed it shall enter an order dismissing the notice. If the court determines that the violation was committed it shall enter an order as provided herein.
E. The court’s decision may be appealed to the superior court according to the Rules for Appeal of Decisions of Courts of Limited Jurisdiction. (Ord. 1409 § 1, 1999).
20.82.150 Notice of infraction – Mitigation hearing.
A hearing to present mitigating circumstances shall be an informal proceeding in which the notice may not be contested and neither party may subpoena witnesses. After considering the information presented, the court shall enter an appropriate order, which may not be appealed. (Ord. 1409 § 1, 1999).
20.82.160 Judgment – Fine – Restitution – Restoration – Costs – Attorney’s fees.
A. Upon a finding that the violation occurred the court shall enter judgment requiring:
1. Payment of a fine of not more than $500.00 for each violation, and that the daily fines will continue to accrue until the infraction is remedied. A supplemental judgment reflecting the total amount of fines accrued shall be entered upon remedy of the violation;
2. Restitution, including restoration of property, in an appropriate case; and
3. Payment of court costs as defined by rule or statute.
B. The court may waive or suspend the monetary penalty for an infraction; and whenever the court determines that person has insufficient funds to pay the penalty, it may impose community service in lieu of the penalty at the rate of state minimum wage per hour.
C. Unless appealed, judgment amounts are payable immediately; provided, that the court may grant an extension of time for good cause shown.
D. In every case the prevailing party shall be awarded its reasonable attorney’s fees. (Ord. 1664 § 5, 2007; Ord. 1409 § 1, 1999).
20.82.170 Enforcement of judgments.
A Judgments entered under authority of this chapter shall be enforced in the same manner as other civil judgments.
B. Whenever a judgment is not satisfied, the court shall notify the city prosecutor, who shall proceed to enforce the judgment. The city prosecutor shall notify the enforcement officer of the failure to pay. The enforcement officer shall notify other city department directors and no further city permits shall be issued to the judgment debtor until the judgment is satisfied. (Ord. 1409 § 1, 1999).
20.82.180 Stop work order.
Whenever a continuing violation of this code materially impairs the enforcement officer’s ability to secure compliance with this code, or threatens the health or safety of the public, the enforcement officer shall issue a stop work order identifying the violation and prohibiting any work or other activity at the site. (Ord. 1409 § 1, 1999).
20.82.190 Emergency order.
Whenever any use or activity is in violation of the code and threatens the health and safety of the occupants of the premises or the public, the enforcement officer shall issue an emergency order directing that the use or activity be discontinued and that the violation be corrected. The emergency order shall specify the time for compliance and shall be posted in a conspicuous place on the property, if posting is physically possible.
Any condition described in the emergency order that is not corrected within the time specified is a public nuisance and the enforcement officer shall abate such nuisance as provided by law. The cost of such abatement shall be recovered from the owner or person responsible, or both, in the manner provided by law. (Ord. 1409 § 1, 1999).
20.82.200 Stop work order – Emergency order – Failure to comply.
A failure to comply with a stop work order or an emergency order is an infraction subject to a fine of $500.00 per day from the date of the order until compliance with the order is achieved. (Ord. 1664 § 6, 2007; Ord. 1409 § 1, 1999).
20.82.210 Abatement.
A. The city may abate a condition that was caused or continues to be a violation when a notice of violation or notice of infraction has been issued that requires corrective action, the time for correction specified in the notice or any modified notice has passed without the condition being corrected, and the notice has not been appealed or the notice has been affirmed by a court.
B. Whenever any violation of a code causes a condition, the existence of which constitutes an immediate and emergent threat to the public health, safety, or welfare or the environment, the city may summarily and without prior notice abate the condition. Notice of such abatement, including the reason for the abatement, shall be given to the person responsible for the violation as soon as reasonably possible after the abatement.
C. 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.
D. The costs, including incidental expenses of correcting the violation, shall be billed to the person responsible for the violation and/or the owner, lessor, tenant or other person entitled to control, use, or occupy the property and shall become due and payable to the city within 10 calendar days of the date of billing. The term “incidental expenses” includes but it is not limited to personnel costs, both direct and indirect, costs incurred in documenting the violation, hauling, storage and disposal costs, and actual expenses and costs of the city in preparing notices, specifications and contracts, and in accomplishing and/or contracting and inspecting the work. The costs shall be a joint and separate obligation of each person billed. If the costs are not paid when due, the city may collect the costs by use of all appropriate legal remedies, including an action in municipal court. (Ord. 1409 § 1, 1999).
20.82.220 Criminal penalties.
A. Any person named in a notice of infraction who fails to respond or who wilfully violates a signed promise to appear in court is guilty of a misdemeanor.
B. Any person who violates the code and who has been found to have committed two code infractions in the preceding 10 years shall be guilty of a gross misdemeanor.
C. Any person who wilfully fails to comply with a court order entered pursuant to this chapter shall be guilty of a gross misdemeanor. (Ord. 1409 § 1, 1999).
20.82.230 Definitions.
A. “Certified mail,” whenever used in this chapter, includes “return receipt requested, to the person’s last known address.”
B. “Enforcement officer” means the city employee appointed pursuant to PMC 20.82.030 as city officer to perform the duties imposed by this chapter. The term “enforcement officer” includes any representative designated by the city as provided herein.
C. “Person” means any natural person, partnership, L.L.C., corporation, association, public agency, or other legal entity. (Ord. 1409 § 1, 1999).