14.40.050 Hearing before the hearings examiner.
A. Notice. A person to whom a Notice of Civil Violation is issued will be scheduled to appear at a hearing before the hearings examiner not less than ten calendar days after the Notice of Civil Violation is issued.
B. Prior Correction of Violation. The hearing will be canceled and no monetary penalty will be assessed if the applicable department director approves the completed required corrective action at least forty-eight hours prior to the scheduled hearing.
C. Procedure. The hearings examiner shall conduct a hearing on the civil violation pursuant to the rules of procedure of the hearings examiner. The applicable department director and the person to whom the Notice of Civil Violation was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to demonstrate by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable. The determination of the applicable department director as to the need for the required corrective action shall be accorded substantial weight by the hearings examiner in determining the reasonableness of the required corrective action.
D. Decision of the Hearings Examiner.
1. The hearings examiner shall determine whether the city has established by a preponderance of the evidence that a violation has occurred and that the required corrective action is reasonable and shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and/or the required corrective action, with or without written conditions.
2. The hearings examiner shall issue an order to the person responsible for the violation which contains the following information:
a. The decision regarding the alleged violation including findings of fact and conclusions based thereon in support of the decision;
b. The required corrective action;
c. The date and time by which the correction must be completed;
d. The monetary penalties assessed based on the criteria in subsection (D)(3) of this section;
e. The date and time after which the city may proceed with abatement of the unlawful condition if the required correction is not completed.
3. Assessment of Monetary Penalty. Monetary penalties assessed by the hearings examiner shall be in accordance with the monetary penalty schedule in LMC 14.40.040(E).
a. The hearings examiner shall have the following options in assessing monetary penalties:
(1) Assess monetary penalties beginning on the date the Notice of Civil Violation was issued and thereafter; or
(2) Assess monetary penalties beginning on the correction date set by the applicable department director or an alternate correction date set by the hearings examiner and thereafter; or
(3) Assess no monetary penalties.
b. In determining the monetary penalty assessment, the hearings examiner shall consider the following factors:
(1) Whether the person responded to staff attempts to contact the person and cooperated with efforts to correct the violation;
(2) Whether the person failed to appear at the hearing;
(3) Whether the violation was a repeat violation;
(4) Whether the person showed due diligence and/or substantial progress in correcting the violation;
(5) Whether a genuine code interpretation issue exists; and
(6) Any other relevant factors.
c. The hearings examiner may double the monetary penalty schedule if the violation was a repeat violation. In determining the amount of the monetary penalty for repeat violations the hearings examiner shall consider the factors set forth in subsection (D)(3)(b) of this section.
4. Notice of Decision. The hearings examiner shall mail a copy of the decision to the appellant and to the applicable department director within ten working days of the hearing.
E. Failure to Appear. If the person to whom the Notice of Civil Violation was issued fails to appear at the scheduled hearing, the examiner will enter an order finding that the violation occurred and assessing the appropriate monetary penalty. The city will carry out the hearings examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person.
F. Appeal to Superior Court. An appeal of the hearings examiner’s decision must be filed with the Thurston County Superior Court within twenty calendar days from the date the hearings examiner’s decision was mailed to the person to whom the Notice of Civil Violation was directed, or is thereafter barred. (Ord. 926 §2 (part), 1991).