Chapter 1.16
VIOLATIONS

Sections:

1.16.010    Applicability.

1.16.020    Purpose.

1.16.030    Definitions.

1.16.040    Enforcement authority – Initiation of violation proceedings.

1.16.045    Warnings.

1.16.050    Arrest or detention prohibited.

1.16.055    Right of entry – Administrative search and inspection warrant.

1.16.060    Service – Service by mail and failure to receive notice – Default.

1.16.070    Fine and assessment amounts.

1.16.080    Response by defendant.

1.16.090    Statement by defendant deemed waiver of hearing and consent to presumptive fine.

1.16.095    Failure to appear on a violation citation.

1.16.100    Trial/hearing – Notice.

1.16.110    Discretionary powers of court.

1.16.120    Violation trial – Requirements and procedures.

1.16.130    Repealed.

1.16.140    Cumulative nonexclusive remedies.

1.16.150    Additional remedies.

1.16.160    Delinquent forfeitures – Lien.

1.16.170    Continuing violations.

1.16.010 Applicability.

The procedures set forth in this chapter shall be applicable to all noncriminal offenses (violations) so designated by existing ordinances of the city and all future ordinances which designate an offense as a violation. (Ord. 2015-10 § 1; Ord. 87-10 § 14)

1.16.020 Purpose.

The purpose of this chapter is to provide a convenient and practical forum for a civil hearing and determination of cases arising out of violations of city ordinances. (Ord. 2015-10 § 1; Ord. 87-10 § 1)

1.16.030 Definitions.

As used in this chapter, unless the context requires otherwise:

“City enforcement officer” or “enforcement officer,” means, for purposes of this chapter, any one or more of the following personnel: city manager, city attorney, code enforcement officer, VRD compliance officer, city engineer, building official, building inspector, any sworn member of the Lincoln City police department, or any city employee, contractor or agent designated by the city manager in writing to perform code enforcement.

“Fine” means the penalty imposed when a violation is found to have been committed.

“Person” means any person, firm, partnership, corporation or association of persons.

“Violation” is defined as described in ORS 153.008 which generally means that the offense is not punishable by imprisonment but may be subject to a fine or other sanction. (Ord. 2015-10 § 1; Ord. 87-10 § 2)

1.16.040 Enforcement authority – Initiation of violation proceedings.

Enforcement officers are empowered to investigate and enforce all violations of city ordinances. For criminal offenses created by city ordinance, any city police officer may make an arrest consistent with the criminal laws of the state of Oregon or may issue and serve a citation in lieu of arrest as authorized by state law. Except as provided herein, violation enforcement shall be consistent with ORS Chapter 153. For violation offenses created by city ordinance or charter, including ordinances adopting state law by reference, any enforcement officer may issue and serve a citation, complaint and summons which shall be in the form of a uniform citation and complaint form adopted by the Oregon Supreme Court. Notwithstanding the above, a city enforcement officer is expressly authorized by law to issue a citation to a person for a violation created by city ordinance if the city official personally witnesses the violation or has probable cause to believe that the person has committed a city ordinance offense. If the person to be issued a citation is a firm, corporation or any other organization, issuance of a citation to any employee, agent or representative thereof shall be sufficient to confer jurisdiction upon the municipal court. Only city enforcement officers may initiate violation proceedings for city charter and city ordinance offenses, except that consistent with ORS 153.058, a person other than an enforcement officer may commence a violation proceeding for violation of state law offenses described in ORS 153.058, and their city ordinance equivalents, if adopted by reference. (Ord. 2015-10 § 1; Ord. 92-24 § 1; Ord. 87-10 § 3(1), (2))

1.16.045 Warnings.

A city enforcement officer may issue a warning notice for any noncriminal violation of the code, provided the code does not prohibit a warning. Warning notices generally provide a brief description of the violation, the name of the city department to contact regarding the abatement of the violation, the name of the person issuing the warning notice, the date the warning was issued, and a statement that failure to correct the alleged violation or to contact the named department contact within a specific time frame may result in enforcement proceedings. The warning notice shall be served upon the person or entity accused of the violation and a copy placed in the enforcement file. Nothing in this section shall be construed to require a warning notice be given to any defendant prior to issuing a citation or taking any other enforcement or abatement action. (Ord. 2015-10 § 1)

1.16.050 Arrest or detention prohibited.

No person may be arrested or detained for violation of a city ordinance denominated as a violation. (Ord. 2015-10 § 1; Ord. 87-10 § 3(3))

1.16.055 Right of entry – Administrative search and inspection warrant.

When it is necessary to inspect a building or premises to enforce the provisions of this code, or the city enforcement officer has reasonable cause to believe that there exists in a building or upon a premises a condition which is contrary to, in violation of this code or which otherwise makes the building or premises unsafe, dangerous or hazardous, the city enforcement officer may enter the building or premises at reasonable times to inspect or to perform the duties imposed by this code; however, if the building or premises is occupied the city enforcement officer must present his credentials to the occupant and request entry. If the building or premises is unoccupied, the city enforcement officer shall first make a reasonable effort to locate the owner or other person in charge or control of the building or premises and request entry. If entry is refused, the city enforcement officer shall have recourse to the remedies provided by law to secure entry, including but not limited to taking action to obtain an administrative search warrant from the municipal or circuit court. (Ord. 2015-10 § 1)

1.16.060 Service – Service by mail and failure to receive notice – Default.

A. Service on individuals may be made by a city enforcement officer by any of the following means:

1. Service may be made by mailing the summons and complaint by restricted or unrestricted certified or registered mail, return receipt requested. For purposes of computing any time period prescribed by this code, service by mail shall be complete three days after such mailing if the address to which it was mailed is within the state, and seven days after mailing if the address to which it is mailed is outside the state.

2. No default shall be entered against any responsible party served by mail under this section who has not either received or rejected the registered or certified letter containing a copy of the summons and complaint, unless otherwise authorized by the municipal judge based upon service procedures of the Oregon Rules of Civil Procedure.

3. Service may be made by delivering the summons and complaint directly to the person to be served.

4. Substituted service may be made by delivering a copy of the summons and complaint at the dwelling house or usual place of abode of the person to be served, to any person over 14 years of age residing in the dwelling house or usual place of abode of the person to be served. Where substituted service is used, the enforcement officer, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the responsible party at the responsible party’s dwelling house or usual place of abode, together with a statement of the date, time, and place at which substituted service was made. For the purpose of computing any period of time prescribed or allowed by this code, substituted service shall be complete upon mailing.

5. If the person to be served maintains an office for the conduct of business, office service may be made by leaving a true copy of the summons and complaint at such office during normal working hours with the person who is apparently in charge. Where office service is used, the enforcement officer, as soon as reasonably possible, shall cause to be mailed a true copy of the summons and complaint to the responsible party at the responsible party’s dwelling house or usual place of abode or the responsible party’s place of business or such other place under the circumstances that is most reasonably calculated to apprise the responsible party of the existence and dependency of the action, together with a statement of the date, time, and place at which office service was made. For the purpose of computing any period of time prescribed or allowed by this chapter, office service shall be complete upon such mailing.

B. Service on particular responsible parties, minors, incapacitated persons, corporations, limited partnerships, the state, other public bodies, general partnerships and other entities, shall be on the persons named in the Oregon Rules of Civil Procedure. (Ord. 2015-10 § 1; Ord. 92-24 § 2; Ord. 87-10 § 4)

1.16.070 Fine and assessment amounts.

A. Violations designated by ordinances of the city are classified and the maximum fines and presumptive fines for commission of a violation, consistent with ORS Chapter 153, are as follows:

Maximum:

1. Class A violation, $2,000;

2. Class B violation, $1,000;

3. Class C violation, $500.00;

4. Class D violation, $250.00;

5. Class E violation, $125.00;

6. Class F violation, $75.00.

Presumptive fine to be included on citation/summons:

1. Class A violation, $440.00;

2. Class B violation, $265.00;

3. Class C violation $165.00;

4. Class D violation, $115.00

5. Class E violation, $70.00;

6. Class F violation, $30.00.

The presumptive fine for a specific fine violation is:

1. The amount specified by the ordinance or statute adopted by reference as the presumptive fine for the violation; or

2. An amount equal to the greater of 20 percent of the maximum fine prescribed for the violation, or the minimum fine prescribed by statute for the violation.

3. The $5.00 additional charge consistent with the 2017 legislative increase shall be added to any specific fine amount presumptive fine.

B. Notwithstanding the above, a person who commits a tree removal violation shall also be subject to a fine in an amount equal to the value of trees removed in violation of LCMC Title 17. The value of those trees shall be computed utilizing the International Society of Arboriculture tree value formula or a similar method in common use as determined by the city engineer. Such fines shall be deposited in a special revenue fund known as the tree preservation and planting fund, which fund is hereby established effective December 1, 1992, to be used for tree preservation or planting efforts.

C. Whenever the city municipal court orders a fine as a penalty for committing a violation, an assessment in addition to such fine shall be collected and forwarded to the city finance director to be credited to a special revenue fund known as the code enforcement fund, which fund is hereby established effective December 1, 1992, to be utilized by the city for the partial funding of its code enforcement efforts. The amount of the assessment shall be as follows:

1. For Class A violations, $100.00;

2. For Class B violations, $60.00;

3. For Class C violations, $25.00;

4. For Class D violations, $10.00;

5. For Class E violations, $5.00;

6. For Class F violations, $0.00.

D. When a defendant is served with a violation citation for violation of a city ordinance, the amount of the presumptive fine set forth in the citation and complaint/summons shall not include the assessment imposed in subsection (C) of this section. If the violator submits the presumptive fine with a guilty or no contest plea prior to the date of appearance, the assessment in subsection (C) of this section is deemed waived. The city municipal court shall impose the fee in all other circumstances, and shall not waive or suspend any portion of the mandatory assessment imposed in subsection (C) of this section. (Ord. 2017-24 § 1; Ord. 2015-10 § 1; Ord. 92-24 § 3; Ord. 87-10 § 5)

1.16.080 Response by defendant.

A. When a defendant is served with a violation citation, the defendant shall either appear in court at the time indicated in the summons or make an appearance as provided in ORS 153.061. As authorized by ORS 153.061(4), a defendant requesting a trial under ORS 153.061(3) shall deposit an amount equal to the presumptive fine for the offense or such other amount as the court determines appropriate if the defendant has failed to appear in any court on one or more other charges in the past.

B. Notwithstanding the appearance options generally available for violation offenses under state law, when the municipal code offense alleged involves a continuing violation, a personal appearance on the citation shall be required. The violation citation itself or this code may specify offenses or classes of offenses which require a personal appearance.

C. In any case in which the defendant personally appears in court at the time indicated in the summons, if the defendant desires to admit the violation and the judge decides to accept the plea, the judge shall hear any statement in explanation or mitigation that the defendant desires to make.

D. The municipal court is bound by the minimum fine provisions of ORS 153.021 as it relates to Class A through D violation offenses.

These statutory minimum fine amounts are as follows:

1. For a Class A violation, $225.00;

2. For a Class B violation, $135.00;

3. For a Class C violation, $85.00;

4. For a Class D violation, $65.00.

Except as otherwise provided by law, a court may not defer, waive, suspend or otherwise reduce the fine for a specific fine violation to an amount that is less than 20 percent of the presumptive fine for the violation. (Ord. 2017-24 § 2; Ord. 2015-10 § 1; Ord. 87-10 § 6)

1.16.090 Statement by defendant deemed waiver of hearing and consent to presumptive fine.

If the defendant has submitted to the court any written statement in explanation or mitigation of a guilty or no contest plea, the statement constitutes a waiver of hearing and consent to judgment. The court may declare a forfeiture of any presumptive fine submitted on the basis of the statement and any testimony or written statement of the city manager, his designee, or any other police officer or person which may be presented to the court. (Ord. 2015-10 § 1; Ord. 87-10 § 7)

1.16.095 Failure to appear on a violation citation.

Failure to appear on a violation citation may result in a default judgment, criminal prosecution for failure to appear pursuant to state law (ORS 153.992), a court order to show cause for contempt, as well as issuance of an arrest warrant. (Ord. 2015-10 § 1)

1.16.100 Trial/hearing – Notice.

If the defendant requests a trial/hearing, or the court directs that a trial/hearing be had, the court shall fix a date and time for the trial/hearing and, unless notice is waived, shall, at least seven days in advance of the trial/hearing, mail to the defendant a notice of the date and time so fixed. (Ord. 2015-10 § 1; Ord. 87-10 § 8)

1.16.110 Discretionary powers of court.

The court, on its own motion, may direct that a trial/hearing be held for any violation offense and may enter the appropriate judgment, declare a forfeiture of the presumptive fine or other deposit, and remit to the defendant any amount by which the fine assessed is less than the amount posted by the defendant, if any, pursuant to LCMC 1.16.080. (Ord. 2015-10 § 1; Ord. 87-10 § 9)

1.16.120 Violation trial – Requirements and procedures.

A. The trial of any violation offense shall be by the court without a jury, unless otherwise required by law.

B. The city shall have the burden of proving the violation offense by a preponderance of the evidence and the defendant may not be required to be a witness in the trial of such violation offense.

C. Proof of culpable mental state is not an element of a violation.

D. The city attorney shall have the authority to prosecute any violation of a city ordinance. At any trial involving a violation offense, the city attorney shall not appear unless the defendant is represented by an attorney, or unless the city attorney is granted leave of the court to appear. The city attorney may aid any enforcement officer in preparing the case for trial including obtaining evidence and witnesses. Further, at any such violation trial, defense counsel shall not be provided at public expense, unless otherwise required by law.

E. Consistent with state law, in any trial of a violation offense, whether created by ordinance or statute, in which the city attorney is prohibited from appearing, the city police officer or the city enforcement officer who issued the citation for the offense is specifically authorized by law to present evidence, examine and cross-examine witnesses and make arguments relating to:

1. The application of statutes and rules to the facts in the case;

2. The literal meaning of the statutes or rules at issue in the case;

3. The admissibility of evidence; and

4. Proper procedures to be used in the trial.

F. Except as expressly provided above for enforcement officers, only a person who is currently licensed to practice law in the state of Oregon by the Oregon State Bar is permitted to represent another person or entity in the Lincoln City municipal court.

G. A person who commits a violation offense by violating designated provisions of the code shall not suffer any disability or legal disadvantage based upon conviction of crime. (Ord. 2015-10 § 1; Ord. 87-10 § 13)

1.16.130 City attorney involvement.

Repealed by Ord. 2015-10. (Ord. 87-10 § 12)

1.16.140 Cumulative nonexclusive remedies.

The rights, remedies, and penalties provided in the code are cumulative, are not mutually exclusive, and are in addition to any other rights, remedies and penalties available to the city under any other provision of law, including but not limited to the abatement of a nuisance. (Ord. 2015-10 § 1; Ord. 87-10 § 3(4))

1.16.150 Additional remedies.

In addition to any other remedy provided in this chapter, the city manager may deny or revoke any city license or permit held or applied for by a person owing a forfeiture to the city assessed pursuant to this chapter. (Ord. 2015-10 § 1; Ord. 87-10 § 11)

1.16.160 Delinquent forfeitures – Lien.

In any case where a fine or forfeiture assessed by the court is not paid, or where there is a default judgment, the city recorder shall enter into the lien docket the amount of the fine or forfeiture against any real or personal property of the defendant within the city, and the fine or forfeiture, after being filed as a lien, shall be collected in the same manner as other liens owing to the city or in any other manner allowed by law for the collection of a debt. (Ord. 2015-10 § 1; Ord. 87-10 § 10)

1.16.170 Continuing violations.

When a violation is of a continuing nature, a separate violation will be deemed to occur on each calendar day that the violation continues, and the citation shall clearly indicate the dates or range of dates alleged for such continuing violation. In addition, a separate citation may be issued for each such violation date or range of dates. (Ord. 2015-10 § 1; Ord. 87-10 § 3(5))