Chapter 4.70
FINES AND PENALTIES

Sections:

4.70.010    Assessment schedule.

4.70.020    Duty to comply.

4.70.030    Civil penalty – Critical areas.

4.70.040    Waivers.

4.70.050    Civil penalty – Invoice – Appeal – Notice.

4.70.060    Civil penalty – Appeal – Hearing – Decision.

4.70.070    Civil penalty – Appeal – Scope governing law – Tolling and application.

4.70.010 Assessment schedule.

A. 1. Civil fines and civil penalties for civil code violations shall be imposed for remedial purposes and shall be assessed for each violation identified in a citation, notice and order, voluntary compliance agreement or stop work order pursuant to the following schedule:

a. Citations:

i. With no previous similar code violations

$100

ii. With one or more previous similar code violations

$500

iii. With two or more previous violations

Double the rate of the previous penalty

b. Notice and orders and stop work orders:

i. Stop work order basic penalty

$500

ii. Voluntary compliance agreement and notice and order basic penalty

$500

c. Additional initial penalties may be added in the following amounts for violations where there is:

i. Public health risk

$15

ii. Environmental damage risk

$15

iii. Damage to property risk

$15

iv. One previous similar code violation

$25

v. Two previous similar code violations

$50

vi. Three or more previous similar code violations

$75

vii. Economic benefit to person responsible for violation

$25

d. Cleanup restitution payment – as specified in MVMC 4.20.110.

e. Reinspection following the issuance of a notice and order, if the violation has not been abated in accordance with the notice and order:

i. First reinspection, which shall occur no sooner than the day following the date compliance is required by the notice and order

$150

ii. Second reinspection, which shall occur no sooner than 14 days following the first reinspection

$300

iii. Third reinspection, which shall occur no sooner than 14 days following the second reinspection

$450

iv. Reinspection after the third reinspection, which shall only be conducted immediately preceding an administrative or court ordered abatement or at the direction of the City Attorney for the purpose of presenting evidence in the course of litigation or administrative hearing against the person responsible for code compliance

$450

2. For the purposes of this section, previous similar code violations that can serve as a basis for a higher level of civil penalties include violations of the same chapter of City code. Any citation, stop work order or notice and order previously issued by the Director shall not constitute a previous code violation for the purposes of this section if that stop work order or notice and order was appealed and subsequently reversed.

B. The penalties assessed pursuant to this section for any failure to comply with a notice and order or voluntary compliance agreement shall be assessed daily, according to the schedule in subsection (A) of this section, for the first 30 days following the date the notice and order or voluntary compliance agreement required the code violations to have been cured. If after 30 days the person responsible for code compliance has failed to satisfy the notice and order or voluntary compliance agreement, penalties shall be assessed daily at a rate of double the rate for the first 30 days. Penalties may be assessed daily until the person responsible for code compliance has fully complied with the notice and order.

C. Penalties based on violation of a stop work order shall be assessed, according to the schedule in subsection (A) of this section, for each day the Director determines that work or activity was done in violation of the stop work order.

D. Citations and cleanup restitution payments shall only be subject to a one-time civil penalty.

E. The Director may suspend the imposition of additional civil penalties if the person responsible for code compliance has entered into a voluntary compliance agreement. If the person responsible for code compliance enters into a voluntary compliance agreement and cures the code violations, the Director may also waive all or part of the accrued civil penalties. Penalties shall begin to accrue again pursuant to the terms of the voluntary compliance agreement if any necessary permits applied for are denied, canceled or not pursued, or if corrective action identified in the voluntary compliance agreement is not completed as specified.

F. The civil penalties in this section are in addition to, and not in lieu of, any penalties, sanctions, restitution or fines provided for in any other provisions of law. (Ord. O-13-534 § 8).

4.70.020 Duty to comply.

Persons responsible for code compliance have a duty to notify the Director of any actions taken to achieve compliance with the notice and order. For purposes of assessing civil penalties, a violation shall be considered ongoing until the person responsible for code compliance has come into compliance with the notice and order, voluntary compliance agreement, or stop work order and has notified the Director of this compliance. (Ord. O-13-534 § 8).

4.70.030 Civil penalty – Critical areas.

A. The code compliance provisions for critical areas are intended to encourage compliance with Chapter 18.60 MVMC, to protect critical areas and the general public from harm and to further the remedial purposes of this title. To achieve this, persons responsible for code compliance will not only be required to restore damaged critical areas, insofar as that is possible and beneficial, but will also be required to pay a civil penalty for the redress of ecological, recreation, and economic values lost or damaged due to their unlawful action.

B. The provisions in this section are in addition to and not in lieu of any other penalty, sanction or right of action provided by law for other related violations.

C. Where feasible, the owner of the land on which the violation occurred shall be named as a party to the notice and order. In addition to any other persons who may be liable for a violation, and subject to the exceptions provided in MVMC 4.20.100, the owner shall be jointly and severally liable for the restoration of a site and payment of any civil penalties imposed.

D. For the purposes of this section, violation of the critical area ordinance means:

1. The violation of any provision of Chapter 18.60 MVMC or rules adopted thereunder;

2. The failure to obtain a permit required for work in a critical area; or

3. The failure to comply with the conditions of any permit, approval, terms and conditions of any critical area tract or setback area, easement or other covenant, plat restriction or binding assurance or any notice and order, stop work order, mitigation plan, contract or agreement issued or concluded pursuant to the above-mentioned provisions.

E. Any person in violation of the critical areas ordinance may be subject to civil penalties, costs and fees assessed as follows:

1. According to the civil penalty schedule included in this chapter; provided, that the exact amount of the penalty per violation shall be determined by the Department based on the physical extent and severity of the violation; or

2. The greater of:

a. An amount determined to be equivalent to the economic benefit that the person responsible for code compliance derives from the violation measured as the total of:

i. The resulting increase in market value of the property;

ii. The value received by the person responsible for code compliance; and

iii. The savings of construction costs realized by the person responsible for code compliance as a result of performing any act in violation of the chapter; or

b. Code compliance costs not to exceed $25,000 incurred by the City to enforce the critical areas ordinance against the person responsible for code compliance. (Ord. O-13-534 § 8).

4.70.040 Waivers.

A. Civil fines and civil penalties, in whole or in part, may be waived or reimbursed to the payer by the Director, under the following circumstances:

1. The citation, notice and order or stop work order was issued in error;

2. The civil fines or civil penalties were assessed in error; or

3. Notice failed to reach the property owner due to unusual circumstances.

B. Civil fines and civil penalties, in whole or in part, may be waived by the Director, under the following circumstances:

1. The code violations have been cured under a voluntary compliance agreement;

2. The code violations which formed the basis for the civil penalties have been cured, and the Director finds that compelling reasons justify waiver of all or part of the outstanding civil penalties; or

3. Other information warranting waiver has been presented to the Director since the citation, notice and order or stop work order was issued.

C. The Director shall document the circumstances under which a decision was made to waive penalties and such a statement shall become part of the public record unless privileged. (Ord. O-13-534 § 8).

4.70.050 Civil penalty – Invoice – Appeal – Notice.

A. The invoice for civil penalties imposed under this title shall include a statement advising the person responsible for code compliance that there is a right to appeal any civil penalties assessed for any time period after achieving compliance with a notice and order, stop work order or voluntary compliance agreement.

B. The person billed in an invoice for civil penalties who believes that civil penalties were assessed for a time period after achieving compliance may file an appeal. In order to be effective, a written notice and statement of appeal must be received within 14 days from the date of the invoice. The statement of appeal must include:

1. The identity of the person filing the appeal;

2. The address of the property where the violations were determined to exist;

3. A description of the violations for which civil penalties were assessed; and

4. A description of the actions taken to achieve compliance and the date of compliance.

C. Failure to effectively appeal the assessment of civil penalties within the applicable time limits renders the invoiced amount final. (Ord. O-13-534 § 8).

4.70.060 Civil penalty – Appeal – Hearing – Decision.

The Hearing Examiner shall conduct a hearing on the appeal of the assessment of civil penalties. The burden is on the appellant to demonstrate by a preponderance of the evidence that civil penalties were assessed after achieving compliance. If the Hearing Examiner grants the appeal, the Examiner shall modify the assessment of civil penalties accordingly. If the Hearing Examiner denies the appeal, the assessed civil penalties shall be reinstated in full. The Hearing Examiner’s decision is final. (Ord. O-13-534 § 8).

4.70.070 Civil penalty – Appeal – Scope governing law – Tolling and application.

A. In an appeal of the assessment of civil penalties, the appellant may only challenge whether civil penalties were assessed for any time period after achieving compliance. The Hearing Examiner’s determination is limited to finding whether civil penalties were assessed for any time period after achieving compliance and to establishing the proper penalty dates if the appeal is granted.

B. The appeal of the assessment of civil penalties to the Hearing Examiner shall be governed by Chapters 2.65 and 18.100 MVMC, except that where specific provisions in this chapter conflict with Chapters 2.65 and 18.100 MVMC, the provisions of this chapter shall govern.

C. Upon the timely receipt of a statement of appeal, the assessment of civil penalties shall be tolled pending the Hearing Examiner’s decision. Should the Hearing Examiner deny or dismiss the appeal, the civil penalties shall be applied retroactively from the date that compliance was required in the notice and order, stop work order, voluntary compliance agreement or the compliance dates set in the Hearing Examiner’s decision on an appeal of a notice and order. (Ord. O-13-534 § 8).