1.25.065 Additional penalty and enforcement provisions.
A. Civil Penalty. In addition to any other enforcement actions available to the city, if the code enforcement official determines that a violation has not been corrected pursuant to ACC 1.25.030 within the time specified in the notice to correct violation or recurs within 60 calendar days of remediation of the same violation, they are authorized to impose a civil penalty against the property owner on whose property the violation exists, and/or the person in possession of the property, and/or the person otherwise causing or responsible for the violation. The penalty shall be up to $500.00 for the first day and $100.00 per day for each additional full day the violation continues. In the event a violation is remediated but recurs within 60 calendar days, the city may impose a penalty that is double that of the above listed penalty amounts. Each day on which a violation or recurrence thereof continues shall constitute a separate violation. If unpaid within 14 calendar days of becoming effective, each penalty shall constitute a lien against the property of equal rank with state, county, and municipal taxes.
B. Notice of Penalty. The penalty shall be imposed by serving a notice of penalty. Service of the notice shall be made upon all persons identified in the notice either personally or by mailing a copy of such order by regular mail, postage prepaid. If an address for mailed service cannot be ascertained, service shall be accomplished by posting a copy of the notice conspicuously on the affected property or structure. The initial penalty shall be effective and the recurring daily penalty shall commence on the date service is effective. Service by regular mail shall be effective five calendar days after the date of postmark, unless U.S. postal records show actual receipt prior to that date. If service is by personal service, service shall be deemed effective immediately. If service is made by posting, service shall be effective on the third day following the day the notice is posted. Recurring penalties shall become effective every 24 hours after midnight of the effective date of the initial penalty if the violation is not corrected.
The notice shall contain all the information required to be placed in a notice to correct violation, under ACC 1.25.030, and in addition the following:
1. The amount of the initial penalty and the amount of the per day penalty for each day the violation(s) continues, and, if applicable, the conditions on which assessment of such civil penalty is contingent.
2. A statement that the recurring penalty accrues each day automatically, without further notice.
3. The procedure for appealing the penalty, as described in this chapter.
4. That if the penalties are unpaid within 10 calendar days of when they become effective, they shall become a lien on the property that shall be of equal rank with state, county and municipal taxes.
C. Withdrawal. The code enforcement officer may withdraw a notice of penalty if compliance is achieved, as determined by the officer, within 14 calendar days of the service date of the notice. The officer shall not withdraw a notice of penalty if it is the second notice issued by the officer to the same person for the same or similar violation committed within six months.
D. Continued Duty to Correct. Payment of a penalty pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the enforcement officer. Correction of the violation does not relieve a person of the obligation to pay the penalty assessed, unless dismissed, withdrawn, or modified by the hearing examiner or the code enforcement officer.
E. Appeal of Notice of Penalty.
1. An assessed civil penalty may be appealed to the city hearing examiner within 14 calendar days of the penalty’s effective date, in the same manner as determinations of the building official are appealed under ACC 15.07.130. After the 14-day period, penalties shall be final and binding. The hearing examiner may grant an extension of time for filing an appeal if the person establishes that they did not receive the notice of penalty due to good cause. The burden of proving such good cause circumstances is on the person making the claim.
2. The appeal shall be processed and the hearing conducted according to the provisions of ACC 15.07.130 and the provisions of that section are adopted by reference for the purpose of this chapter. The person appealing may appeal either the determination that a violation exists or the amount of the civil penalty imposed, or both. The person appealing may appeal all penalties that are not final and binding. The hearing examiner has the authority to affirm, dismiss, or modify the civil penalty. The city shall have the burden of proving by a preponderance of the evidence the commission of a violation. If the hearing examiner finds that a violation was not committed at the time the notice of penalty was issued, the examiner shall dismiss all penalties before them that were imposed for the alleged violation and the city shall dismiss all additional penalties, whether effective or final, that were imposed for the alleged violation.
3. The civil penalties for a continuing violation shall not continue to accrue pending determination of the appeal; however, the hearing examiner may impose a daily monetary penalty, to a maximum of $100.00 per day, from the date of service of the notice of penalty if the hearing examiner finds that the appeal is frivolous or intended solely to delay compliance. An appeal does not lift or stay a notice to correct violation.
4. A person is precluded from appealing a penalty if the hearing examiner finds that it has determined in a prior appeal all the issues of fact and law raised by the person appealing.
5. At their discretion, the hearing examiner may consolidate appeals of penalties imposed on the same property for the same violations.
F. Cost Recovery and Lien.
1. Any monetary penalty imposed under this chapter constitutes a personal obligation of the person served the notice of penalty. The city attorney is authorized to collect the monetary penalty by use of appropriate legal remedies, the seeking of which shall neither stay nor terminate the accrual of additional per-day penalties so long as the violation continues.
2. The city may authorize the use of collection agencies to recover monetary penalties, in which case the cost of the collection process shall be assessed in addition to the monetary penalty.
3. Once civil penalties are effective and due, pursuant to this section, the code enforcement officer may file a lien with the county auditor on the property where the violation exists for the amount of the unpaid civil penalties. The lien shall be of equal rank with state, county and municipal taxes, and shall be in similar form, be filed with the same county office, be enforced and foreclosed in the same manner, and subject to the same exemptions as state law provides for the foreclosure of labor and material liens. The claim of lien shall contain the following:
a. The authority for imposing a civil penalty;
b. A brief description of the civil penalty imposed, including the violations charged and the duration thereof;
c. A legal description of the property to be charged with the lien;
d. The name of the known or reputed owner; and
e. The amount, including lawful and reasonable costs, for which the lien is claimed. (Ord. 6857 § 2 (Exh. B), 2022; Ord. 6708 § 3, 2018; Ord. 6647 § 2, 2017; Ord. 6615 § 7, 2016; Ord. 6328 § 4, 2010.)