Chapter 1.18
ENFORCEMENT

Sections:

Article I. Purpose – Definitions – Authorization

1.18.010    Purpose.

1.18.020    Definitions.

1.18.030    Authorization.

Article II. Investigation and Enforcement

1.18.040    Responsibility for code violations – Burden of proof.

1.18.050    Investigation.

1.18.060    Right of entry.

1.18.070    Enforcement provisions.

1.18.080    Correction notice.

Article III. Notices of Civil Infraction

1.18.090    Notice of infraction – Issuance, service, filing.

1.18.100    Person receiving notice –Identification.

1.18.110    Notice – Determination final unless contested – Form.

1.18.120    Response to notice – Contesting determination.

1.18.130    Hearings – Rules of procedure – Counsel.

1.18.140    Hearings – Contesting determination that infraction committed – Appeal.

1.18.150    Hearings – Explanation of mitigating circumstances.

1.18.160    Monetary penalties – Restitution.

1.18.170    Order of court – Civil nature –Modification of penalty.

1.18.180    Costs.

Article IV. Nuisance Abatement

1.18.190    Process – Notice of abatement – Abatement.

1.18.200    Summary abatement – Stop work order.

1.18.210    Service of notices of abatement and stop work orders.

Article V. General Enforcement Provisions

1.18.220    Emergency – Requirement of immediate action.

1.18.230    Interference with code enforcement unlawful.

1.18.240    Joint and several responsibility and liability.

1.18.250    Conflicting code provisions.

1.18.260    Judicial review.

1.18.270    Severability.

Article I. Purpose – Definitions – Authorization

1.18.010 Purpose.

This chapter establishes a uniform system to enforce town regulations for civil infractions and nuisances and establishes an opportunity for a prompt hearing and decision on alleged violations, monetary penalties for violations and nuisance abatement procedures. (Ord. 1529 § 1, 2013)

1.18.020 Definitions.

For the purpose of this chapter, the following terms shall have the meaning described:

A. “Act” means doing or performing something.

B. “Civil infraction” means a violation of a section of the town code for which a monetary civil penalty authorized by Chapter 7.80 RCW may be imposed.

C. “Emergency” means a situation which in the opinion of the enforcement officer or designee requires immediate action to prevent or eliminate an immediate threat to the health or safety of persons, property or the environment.

D. “Enforcement officer” or “officer” means the land use administrator or designee.

E. “Nuisance” is as defined in Chapter 9.14 FHMC.

F. “Nuisance code” means Chapter 9.14 FHMC and, as used in this chapter, includes violation of a provision constituting a nuisance.

G. “Omission” means a failure to act.

H. “Person” includes any natural person, corporation, unincorporated association, partnership, local or state governmental or other legal entity.

I. “Repeat violation” means a violation of the same regulation in any location by the same person for which voluntary compliance previously had been sought or a notice of civil infraction issued within the immediately preceding 12-consecutive-month period. A repeat violation may involve the same condition, action or omission as a previous violation, but shall not include monetary penalties accruing as a continuing violation.

J. “Town” means the town of Friday Harbor.

K. “Violation” means an act or omission contrary to a town regulation when said act or omission constitutes a civil infraction or nuisance including an act or omission at the same or different location by the same person. Each day a continuing violation exists constitutes a separate violation for purposes of civil penalty assessment. (Ord. 1529 § 1, 2013)

1.18.030 Authorization.

This chapter is adopted pursuant to Chapter 7.80 RCW and RCW 7.48.220 and 35.27.410 as enacted or hereafter amended. Nothing contained in this chapter is intended to diminish or limit the powers granted to town public officials through application of Chapter 7.80 RCW. (Ord. 1529 § 1, 2013)

Article II. Investigation and Enforcement

1.18.040 Responsibility for code violations – Burden of proof.

A. It shall be unlawful for any person to violate any provision of the Friday Harbor Municipal Code (FHMC) when such violation constitutes a civil infraction or nuisance. In addition to the violator, there is a rebuttable presumption the owner of a vehicle, building, structure, premises, personal property or land upon or within which a violation has occurred or is occurring is also responsible for the violation so long as the owner had actual or constructive knowledge of the violation at the time it occurred or is occurring.

B. Any adult responsible for the care and/or supervision of a juvenile less than 18 years is liable for any violation of the Friday Harbor Municipal Code committed by that juvenile so long as the adult had or has actual or constructive knowledge of the violation at the time it occurred or is occurring.

C. The enforcement officer may bring an action as set forth in FHMC 1.18.070 and 1.18.090. For a notice of civil infraction, the town shall have the burden to prove the violation(s) by a preponderance of the evidence. (Ord. 1529 § 1, 2013)

1.18.050 Investigation.

A. Except when an emergency exists or there have been repeated violations of the same or similar town regulation(s) by the same person(s), when the enforcement officer determines violation(s) of the town code have occurred or are occurring, the enforcement officer shall investigate and may enter any premises, structure or use which he/she reasonably believes does not comply with the requirements of the applicable town regulation(s). In the event the violation(s) are shown solely through documentation, the enforcement officer may investigate such documentation.

B. The enforcement officer may document the investigation through a written investigation report submitted to the town administrator. If an investigation report is prepared, it shall note the time, date and location of the investigation(s); the responsible party; the enforcement officer’s observations and findings, a summary of the code sections violated and a short description of the cause(s) of the alleged violation(s); and the enforcement provisions in FHMC 1.18.070 the enforcement officer recommends. (Ord. 1529 § 1, 2013)

1.18.060 Right of entry.

A. An enforcement officer has the right to enter and inspect a property or premises if the officer reasonably believes violation of the town’s regulations has occurred or is occurring thereon. To access the premises or property, the enforcement officer shall first request entry from the property owner or occupant. In the event the officer cannot gain permission to enter from either the owner or occupant, the officer shall consult with the town administrator who may then authorize the enforcement officer to enter the premises by any means authorized by law, including obtaining a search warrant from a court of competent jurisdiction.

B. Emergency Entry. An enforcement officer may enter property to investigate a condition where it appears the condition creates a substantial and imminent threat or danger to the public health, safety, welfare, the environment or public or private property. (Ord. 1529 § 1, 2013)

1.18.070 Enforcement provisions.

Whenever the enforcement officer has cause to believe a violation has occurred or is occurring, the officer may utilize one or a combination of the enforcement mechanisms listed in this section in addition to any other remedy available by law:

A. Correction Notice. The enforcement officer may issue a correction notice conforming to the requirements of FHMC 1.18.080. The correction notice shall not impose civil penalties, is not a final decision and is not subject to appeal.

B. Notice of Civil Infraction and Order. The enforcement officer may issue a notice of civil infraction and order as set forth in Chapter 7.80 RCW. The notice and order may require corrective action(s) and impose monetary penalties according to FHMC 1.18.160 which notice and order shall be filed with the district court pursuant to RCW 7.80.010 and 7.80.050.

1. Required corrective action may include an order to vacate a building, structure or premises when said action is necessary in the interest of public health, safety and welfare.

2. The town may abate a violation consistent with applicable law if the required corrective action is not commenced within the time specified in the notice of civil infraction and order.

3. Noncompliance with the notice of civil infraction and order constitutes a second or subsequent violation and may result in the issuance of additional notice(s) of civil infraction.

4. It shall be a separate offense each day (or portion thereof) during which a violation is allowed, permitted or suffered to exist from the date the responsible person receives notice of the violation through a correction notice or notice of civil infraction and order.

C. Order to Revoke Permit. The enforcement officer may issue an order revoking a permit, in accordance with applicable law. An order revoking a permit is appropriate if:

1. The permittee is not complying with the terms of the permit or approved plans;

2. The permit is issued in error;

3. A permit is issued based upon incorrect information;

4. The work is, in the enforcement officer’s judgment, adversely affecting or about to adversely affect adjacent property or rights-of-way, a drainage way, watercourse, critical area or stormwater facility, or town water system; or

5. Issuance of the permit is a hazard to the public health, safety, or welfare or contrary to law.

An order revoking a permit shall be processed in the same manner as a notice of civil infraction and order.

D. Nuisance Abatement. Whenever a nuisance requires abatement as set forth in FHMC 1.18.190, the enforcement officer may issue a notice of abatement and follow the process for the abatement including the filing of a civil complaint in a court of competent jurisdiction.

E. Summary Abatement. Whenever a nuisance poses an imminent threat to the health, safety, or welfare of persons, property or the environment, the enforcement officer may order the violation be immediately abated in conformance with the requirements contained in FHMC 1.18.200.

F. Judicial Relief. Nothing in this chapter prevents the town from filing a complaint or petition in a court of competent jurisdiction seeking any relief authorized by law when, in the opinion of the town administrator, other civil or administrative enforcement options would not be timely or effective. (Ord. 1529 § 1, 2013)

1.18.080 Correction notice.

The correction notice shall be in writing and include the following:

A. The first date of the violation;

B. The name and address of the person responsible for the violation. If the person cannot be found or ascertained from the county assessor’s records, the correction notice may be affixed or posted conspicuously on the building, structure, premises, personal property or land where the violation has occurred or is occurring;

C. The street address or other description sufficient to identify the locale upon or within which the violation has occurred or is occurring;

D. A brief description of the violation and reference to the code section(s) being violated;

E. The corrective action needed and the date by which the action must be completed;

F. A summary of the actions the town may use should the violation not be remedied in the time provided for;

G. If the violation is a nuisance to be abated pursuant to FHMC 1.18.190 or 1.18.220, the notice shall contain such further information as set forth in said sections; and

H. Any other appropriate information. (Ord. 1529 § 1, 2013)

Article III. Notices of Civil Infraction

1.18.090 Notice of infraction – Issuance, service, filing.

A. A civil infraction proceeding is commenced by issuance, service, and filing of a notice of civil infraction and order, as set forth in Chapter 7.80 RCW, as now enacted or hereafter amended.

B. A notice of civil infraction and order may be served and issued by an enforcement officer when the civil infraction occurs in the officer’s presence.

C. A court may issue a notice of civil infraction and order if an enforcement officer files with the court a written statement that the civil infraction was committed in the officer’s presence or that the officer has reasonable cause to believe that a civil infraction was committed.

D. Service of a notice of civil infraction issued under subsection B or C of this section is accomplished as provided for in Rules 2.2(c)(1) and (3) of the Infraction Rules for Courts of Limited Jurisdiction (IRLJ), as applicable.

E. A notice of civil infraction shall be filed with the court within 48 hours of issuance, excluding Saturdays, Sundays, and holidays. A notice of civil infraction not filed within the time limits prescribed in this section may be dismissed without prejudice. (Ord. 1529 § 1, 2013)

1.18.100 Person receiving notice –Identification.

A person who is to receive a notice of civil infraction and order is required to identify himself or herself to the enforcement officer by giving his or her name, address, and date of birth. Upon the request of the officer, the person shall produce reasonable identification, such as a driver’s license or identicard. (Ord. 1529 § 1, 2013)

1.18.110 Notice – Determination final unless contested – Form.

A. A notice of civil infraction and order represents a determination that a civil infraction has been committed and is final unless contested as provided for in this chapter or other applicable law.

B. The form for the notice of civil infraction and order is to include the following consistent with RCW 7.80.070:

1. A statement that the notice represents a determination that a civil infraction has been committed by the person named in the notice and that the determination is final unless contested as provided for in this chapter;

2. A statement that a civil infraction is a noncriminal offense for which imprisonment may not be imposed as a sanction;

3. A statement or description of the specific civil infraction for which the notice was issued and a reference to the code provision(s) that has been violated;

4. A statement of the monetary penalty established for the civil infraction, which shall be deemed to be the sum established for a class two civil infraction by RCW 7.80.120, as the same currently exists or as may be hereafter amended, unless a repeat violation exists or unless a different amount is specifically set forth elsewhere in the Friday Harbor Municipal Code;

5. A statement of the options provided in this chapter for responding to the notice of civil infraction and the procedures necessary to exercise these options;

6. A statement that at any hearing to contest the determination, the town has the burden of proving, by a preponderance of the evidence, that the civil infraction was committed and that the person may subpoena witnesses including the enforcement officer who issued the notice of civil infraction and order;

7. A statement that at any hearing requested for the purpose of explaining mitigating circumstances surrounding the commission of the civil infraction, the person shall be deemed to have committed the civil infraction and may not subpoena witnesses;

8. A statement that the person must respond to the notice as provided for in this chapter within 15 days;

9. A statement that failure to respond to the notice of civil infraction or failure to appear at a hearing requested for the purpose of contesting the determination or for the purpose of explaining mitigating circumstances will result in a default judgment against the person in the amount of the penalty and that this failure may be referred to the prosecuting attorney for criminal prosecution for failure to respond or appear; and

10. Any other appropriate information. (Ord. 1529 § 1, 2013)

1.18.120 Response to notice – Contesting determination.

A. Any person receiving a notice of civil infraction and order shall respond to such notice within 15 days of the date of the notice consistent with RCW 7.80.080.

B. Upon request, the enforcement officer may reinspect the location of any site to determine if correction of a cited violation has been accomplished. If the enforcement officer verifies that correction has been accomplished, he or she shall sign and provide a certificate of correction. If at least 48 hours prior to any hearing on any infraction a person presents a duly signed certificate of correction relating to the matters identified in any said infraction, the court may dismiss the infraction, unless designated a repeat violation. (Ord. 1529 § 1, 2013)

1.18.130 Hearings – Rules of procedure – Counsel.

Procedures for the conduct of hearings provided for in this chapter for notices of civil infraction shall be done consistent with the terms of RCW 7.80.090. (Ord. 1529 § 1, 2013)

1.18.140 Hearings – Contesting determination that infraction committed – Appeal.

Procedures for contesting that an infraction has been committed and any appeal therefrom shall be done consistent with RCW 7.80.100. (Ord. 1529 § 1, 2013)

1.18.150 Hearings – Explanation of mitigating circumstances.

A hearing held for the purpose of allowing a person to explain mitigating circumstances surrounding the commission of a civil infraction shall be done consistent with the provisions of RCW 7.80.110. (Ord. 1529 § 1, 2013)

1.18.160 Monetary penalties – Restitution.

A. Each day or portion thereof during which a violation occurs or exists shall be deemed a separate civil infraction.

B. A person found to have committed a civil infraction shall be assessed a monetary penalty in the amount provided for a given class of infraction by RCW 7.80.120, as now enacted or hereafter amended, including:

1. Class 1 – $250.00 per infraction, not including statutory assessments, except for an infraction of state law involving potentially dangerous litter as specified in RCW 70.93.060(4), and an infraction of state law involving violent video or computer games under RCW 9.91.180, in which case the maximum penalty and default amount is $500.00 per infraction.

2. Class 2 – $125.00 per infraction, not including statutory assessments.

3. Class 3 – $50.00 per infraction, not including statutory assessments.

4. Class 4 – $25.00 per infraction, not including statutory assessments.

C. Any violation established hereunder shall be deemed a Class 3 civil infraction unless a different level of infraction is specifically set forth elsewhere in the Friday Harbor Municipal Code; provided, however, that a first repeat violation shall be deemed a Class 2 civil infraction and that a second or any subsequent repeat violations shall be deemed a Class 1 civil infraction.

D. Whenever a monetary penalty is imposed by the court under this chapter, it is immediately payable. If the person is unable to pay at that time, pursuant to Chapter 7.80 RCW, the court may grant an extension of the period in which the penalty may be paid. If the penalty is not paid on or before the time established for payment, the court may proceed to collect the penalty in the same manner as other civil judgments and may notify the town attorney of the failure to pay.

E. Payment of a monetary penalty shall not relieve a person of the duty to correct the violation or preclude the town from taking action to abate any unlawful condition as may be provided by applicable law.

F. The court may also order a person found to have committed a civil infraction to make restitution. (Ord. 1529 § 1, 2013)

1.18.170 Order of court – Civil nature –Modification of penalty.

A. Orders entered after the receipt of a response not contesting the determination or when it has been established at a hearing that a civil infraction was committed or after a hearing to explain mitigating circumstances are all civil in nature.

B. The court may waive, reduce or suspend the monetary penalty prescribed for the civil infraction consistent with the requirements and allowances of RCW 7.80.130. (Ord. 1529 § 1, 2013)

1.18.180 Costs.

With the exception of “statutory court costs,” each party to a civil infraction case is responsible for costs incurred by that party, but the court may assess witness fees against a nonprevailing respondent. Attorney fees may be awarded to either party consistent with RCW 7.80.140. (Ord. 1529 § 1, 2013)

Article IV. Nuisance Abatement

1.18.190 Process – Notice of abatement – Abatement.

A. Nuisance Abatement.

1. Before a person is either charged with a nonemergency violation of the nuisance code or which violation constitutes a substantial threat to human health or the environment, the enforcement officer shall attempt to give such person a correction notice as provided in FHMC 1.18.080. In addition to the criteria set forth in that section, the notice shall state the existence of a nuisance, that a civil complaint is contemplated and the responsible person shall have seven days to remove or abate the nuisance from the date of the correction notice.

2. A copy of the correction notice (together with proof of service or attempted service thereof) shall be kept and filed with any civil complaint filed. If after the notice or attempted notice provided for in this subsection the nuisance has neither been abated nor removed, the town may remove or abate the same at the responsible person’s expense.

3. Upon abatement or removal of the condition or portion thereof by the town, all expenses thereof constitute a civil debt owing the town jointly and severally by the responsible persons who have been given notice or upon whom service of notice was attempted. The debt shall be collectible in the same manner as any other civil debt owed the town.

B. Substantial Threat Abatement. In the event the nuisance is not an emergency but nonetheless poses a substantial threat to human health or the environment, the enforcement officer shall give the responsible person a correction notice in substantially the same form provided for in subsection A of this section. If within 24 hours the nuisance is not removed or abated, the enforcement officer shall cause the person to be summoned to a court of competent jurisdiction. The enforcement officer may also cause the nuisance to be abated or removed by the town as provided in subsection A of this section. Any costs incurred shall be chargeable to the responsible person(s) and be collectible in the same manner as provided in subsection A of this section.

C. Emergency Abatement. In the event a nuisance creates an emergency as defined in this chapter, the town may initiate summary abatement proceedings as provided in FHMC 1.18.200.

D. Nothing in this section relieves responsible person(s) from the obligation to obtain any required permit(s) to do work necessary to abate or remove the nuisance. (Ord. 1529 § 1, 2013)

1.18.200 Summary abatement – Stop work order.

A. Summary Abatement. Whenever any condition on or use of property causes or constitutes an emergency, the enforcement officer is authorized to summarily and without notice cause the same to be abated. The expenses incurred in any summary abatement become a civil debt against the responsible person(s) and may be collected in the same manner as other civil debts owed the town.

B. Stop Work Order. A stop work order is a form of summary abatement. Whenever the enforcement officer determines a violation of the code has occurred or is occurring, the officer may issue a stop work order. A stop work order may be issued if:

1. The work is not authorized by a valid permit;

2. The permittee is not complying with the terms of the permit or approved plans;

3. The work is, in the enforcement officer’s judgment, adversely affecting or about to adversely affect adjacent property or rights-of-way, drainage ways, watercourses, critical areas or stormwater facilities, or the town water system; or

4. The work otherwise creates a hazard to the public health, safety or welfare. (Ord. 1529 § 1, 2013)

1.18.210 Service of notices of abatement and stop work orders.

A. Service.

1. The enforcement officer shall cause a notice of abatement or stop work order be served upon the responsible person(s) either personally, by mailing a copy of it to the person’s last known address, or by conspicuously affixing or posting it on the building, structure, premises, personal property or land upon or within which the violation has occurred or is occurring.

2. If the person(s) responsible for the violation(s) is the owner of real property, but does not reside at the site and the address of the person(s) responsible for the violation(s) is unknown, the enforcement officer may serve the notice of civil violation and order by mailing it to the billing address for the subject property on file in the county assessor’s office.

3. Service may also be made as set forth in applicable court rules.

B. Additional Persons to Be Served. If known or available from the county assessor’s office, a copy of the notice of civil violation and order or the order to revoke a permit may be sent to the holder of any mortgage or deed of trust as well as the holder(s) of other estate or legal or equitable interest(s) in any building, structure, land, personal property or premises on which a violation has occurred or is occurring.

C. Failure to Effect Service. The failure of the enforcement officer to serve any person required or permitted to be served does not invalidate any proceeding as to any other person duly served nor does it relieve any such person from any duty or obligation imposed by this chapter.

D. Service Requirements for Nuisance Vehicles. A notice of civil violation and order concerning a nuisance vehicle must be served upon:

1. The nuisance vehicle’s last registered and legal owner of record, unless the nuisance vehicle is in such a condition that identification numbers are not available to determine ownership; and

2. The property owner of record upon which the nuisance vehicle is located.

E. Service by Posting. If the person to whom the notice of civil violation and order or an order to revoke permit is directed is served by posting, it shall be treated in the same manner as service by mail.

F. Proof of Service. Proof of service shall be made by written declaration under penalty of perjury executed by the person effecting service declaring the time and date of service and the manner service was made. Additionally, if served by posting and cumulative penalties are sought, the declaration shall include the facts showing the efforts used in attempting to serve the person personally or by mail. (Ord. 1529 § 1, 2013)

Article V. General Enforcement Provisions

1.18.220 Emergency – Requirement of immediate action.

Notwithstanding any provision of this chapter, when a violation citation is issued consistent with this chapter for violation(s) of the Friday Harbor Municipal Code, if the situation constitutes an emergency, immediate action to abate said emergency is required of the person(s) to whom the violation citation is issued. No action shall be stayed pending the filing of an appeal. If immediate action by the responsible person is not undertaken, the town is authorized to abate the emergency as provided by law. (Ord. 1529 § 1, 2013)

1.18.230 Interference with code enforcement unlawful.

A person obstructing, impeding or otherwise interfering with an attempt to serve a notice of correction, notice of abatement, notice of civil infraction, stop work order or emergency order or who otherwise impedes, interferes or obstructs attempts to investigate or correct a violation commits a Class 1 civil infraction. (Ord. 1529 § 1, 2013)

1.18.240 Joint and several responsibility and liability.

Responsibility for violations of the codes enforced pursuant to this chapter is joint and several, both as to the duty to correct and payment of monetary penalties and costs. (Ord. 1529 § 1, 2013)

1.18.250 Conflicting code provisions.

In the event a conflict exists between the enforcement provisions of this chapter and enforcement provisions of any other code, statute or regulation adopted by reference in the town’s municipal code and which is subject to the enforcement provisions hereof, the enforcement provisions of this chapter prevail, unless the enforcement provisions of this chapter are either preempted or specifically modified by said code, statute, or regulation. In the event of a conflict between this chapter and any other provision of this code or town ordinance providing for a civil penalty, the more specific provision controls. (Ord. 1529 § 1, 2013)

1.18.260 Judicial review.

Judicial review of a final decision by the enforcement officer relating to any town regulation concerning the improvement, development, modification, maintenance or use of real property may be sought by any aggrieved or adversely affected person pursuant to Chapter 36.70C RCW. Judicial review of other decisions is subject to procedures of applicable law including Chapters 7.16 and 7.80 RCW. (Ord. 1529 § 1, 2013)

1.18.270 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 of the remaining portion of this chapter and the same shall remain in full force and effect. (Ord. 1529 § 1, 2013)