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HomeMy WebLinkAboutAdmin Order 53-00-03-F ADMINISTRATIVE ORDER NO. 53-00-03-F of the CITY MANAGER AMENDMENT TO REGULATIONS FOR ADMINISTRATIVE CIVIL PENALTY ADMINISTRATIVE RULE R-2.018-C; RATIFYING UNAMENDED PORTIONS OF RULE R-2.018; AND REPEALING ADMINISTRATIVE ORDER NO. 53-91-18. The City Manager of the City of Eugene finds that: A. Pursuant to the authority contained in Sections 2.018 and 2.019 of the Eugene Code, 1971, Regulations for Administrative Civil Penalty Administrative Rule R-2.018 was adopted by Administrative Order No. 53-91-18 on April 14, 1991. B. Based on the findings set forth in Administrative Order 53-00-03 issued on May 25, 2000, I proposed changes to the formula currently set forth in R-2.018-C. C. Notice of the proposed amendment was published in the Register-Guard for five consecutive days, to-wit, on June 2, 3, 4, 5 and 6, 2000. The Notice was also made available to persons who had requested such notice, and provided that written comments would be received thereon for a period of 15 days from the first date of publication. During the comment period, staff recommended some punctuation changes and, in order for the Rule to be consistent with Section 2.018 of the Eugene Code, 1971, recommended the addition ofa phrase in R-2.018-B(I) with respect to notice and correction of a violation. These changes have been incorporated in the Rule that follows. D. findings: Two persons submitted written comments, to which I make the following specific Comment 1: Jim Pierce commented that: (a) The regulation seems unnecessarily long and complex, since it is so subjective anyway. (b) It seems inappropriate to equate human life and safety with natural resources. (c) Natural resources are in both halves of the multiplier and should be removed from section G. (d) Weighting factors in section K seem heavily weighted by ambiguous and subjective values of section N. (e) What is the maximum fine per day? Finding: (a) The rule was developed following a survey of enforcement techniques in other Administrative Rule R-2.018 - 1 c:\ WINDOWS\ TEMP\OOc20 18-2ao.wpd jurisdictions. The civil penalty has proven an effective alternative to more expensive court proceedings. (b) The rule does not equate these factors. Gravity is, in fact, part of the multiplier rather than the base. The civil penalty addresses many issues, and may even be an incentive for correcting violations that are not safety-related. (c) This is somewhat correct in that section G assigns value based on threat to life, property or natural resources. Section N assigns value based on the violation's relationship to protection, preservation and development of natural resources. Although this isn't completely redundant, staff agreed that the inclusion of natural resources in both sections was imbalanced and it has been deleted from section G. (d) The intent of the comment was unclear to staff; no recommended change was proposed, and no response is therefore being made. (e) This comment was directed to a staff cover sheet that accompanied the proposed amendments. Although no response is required, for purposes of clarification, the maximum fine is $2,000 per violation per day. Comment 2: Nicholas D. Antone, III commented that: (a) The calculation sheet used by staff doesn't identify the code or administrative rules by number. (b) Alternatives to civil penalties are needed to address violations involving persons with medical and mental problems. (c) Increasing the civil penalties as proposed will contribute to greater homelessness. (d) A violation should be held as knowing, intentional and a repeat violation, not just one of the three. Finding: (a) This comment does not address the proposed rule. However, staff indicated the calculation sheet can be modified to cite the appropriate code and rule. (b) Civil penalties are only one of several tools used in encouraging compliance with City regulations; unless a violation is serious, intentional or repetitive, civil penalties generally come into play only after other efforts to achieve compliance have failed. Therefore, no viable alternative was proposed, and no change is being made as a result of this comment. (c) The increase in the penalty is to make the rule consistent with the code. As noted in the finding to comment 2(b), civil penalties are only imposed after other efforts to achieve compliance have failed. Therefore, no change is being made as a result of this comment. (d) These references in the rule are consistent with those in the code, and no change is being made as a result. Based upon the above findings, which are hereby adopted, and pursuant to the authority contained in Sections 2.018 and 2.019 of the Eugene Code, 1971, I hereby repeal Administrative Order No. 53-91-18 as of the effective date of this order, amend Regulations for Administrative Civil Penalty Rule R-2.018-C as proposed in Administrative Order No. 53-00-03 and amended as noted Administrative Rule R-2.018 - 2 c:\ WINDOWS\ TEMP\OOc20 18-2ao. wpd in the finding to comment 1 (c) above, and ratify the unamended portions of Rule R-2.018 so they provide in full as follows: REGULATIONS FOR ADMINISTRATIVE CIVIL PENALTY - RULE R-2.018 R-2.018-A GENERAL. (1) Scope. (a) Except as otherwise expressly provided in other regulations, the administrative civil penalty provisions and these regulations apply when the administrative civil penalty is expressly authorized in the Eugene Code, 1971. (b) The administrative civil penalty is one of many enforcement mechanisms authorized by the Eugene Code, 1971, and is not exclusive. The use of this enforcement mechanism does not preclude other enforcement actions authorized by the Eugene Code, 1971. (2) Definitions. For purposes of these regulations, the following words and phrases mean: Enforcement officer. The person authorized by the City Manager or designee to enforce particular provisions of the Eugene Code, 1971 under which the administrative civil penalty is authorized. Regulations. These regulations, and rules or regulations promulgated pursuant to Section 8.005 of the Eugene Code, 1971, or other sections of the Eugene Code, 1971 which authorize imposition of an administrative civil penalty. Responsible person. For violations of Chapters 6, 8, and 9 of the Eugene Code, 1971, the owner of a building or property where a violation has occurred, the person in charge of the building or property~ the violator, and where the violator works for a contractor, either as an employee, subcontractor, or independent contractor, the contractor and/or other employer; and for any violation, a licensee, permittee, or agent, manager, or person in charge as more particularly described in Chapters 3, 6, 8 or 9 of the Eugene Code, 1971. Repeat. or repetitive violation. A violation which is similar to another violation by the responsible person within the preceding two years. R-2.018-B Notice of Civil Penalty. (1) The enforcement officer is authorized to impose an administrative civil penalty upon Administrative Rule R-2.018 - 3 c:\ WINDOWS\TEMP\OOc20 18-2ao.wpd a responsible person for a violation of any provision of Chapters 3, 6, 8 or 9 of the Eugene Code, 1971, or regulations adopted thereunder. Prior to imposition of an administrative civil penalty the enforcement officer or designee shall provide the responsible person with written notice of the violation and an opportunity to correct the violation of not less than five days unless the violation poses an immediate threat to health, safety, environment or public welfare. However, if the violation is intentional, knowing, or repetitive, no written notice or opportunity to correct is required prior to imposition of the administrative civil penalty. (2) If the violation has not been corrected in the manner or within the time required in the written notice of violation, or if the violation is intentional, knowing, or repetitive, the enforcement officer may issue a Notice of Civil Penalty. (3) The Notice of Civil Penalty shall: ( a) Be in writing, signed by the enforcement officer; (b) Describe the nature of the violation and specify the section of the Eugene Code, 1971 or provision of these Regulations violated; ( c) Specify the amount of penalty imposed; (d) State, as applicable, either: 1. The date on which the order to correct violation was issued and the date by which correction was to be made; or 2. If the Notice of Civil Penalty is issued without prior written notice of violation, a short and plain summary of the basis for concluding that the violation was intentional, knowing, or repetitive; ( e) State the starting date of the penalty. Each day that the violation continues to exist is a separate violation for which the penalty will be assessed. The penalty assessments will continue daily until the corrections are made; (1) State that the responsible person receiving the Notice of Civil Penalty has the right to appeal to a hearings officer within ten days after the Notice of Civil Penalty is served on the responsible person. (4) The amount of civil penalty assessed shall be determined in accordance with R-2.018- C. (5) The Notice of Civil Penalty shall be mailed to a responsible person by certified mail, return receipt requested, and by regular mail, or served personally on a responsible person. Administrative Rule R-2.018 - 4 c:\ WINDOWS\ TEMP\OOc20 18-2ao.wpd (6) The Notice of Civil Penalty shall be deemed served for purposes of any time computations hereunder on: the date the notice is served personally on the responsible person; three days after the date the notice i~ mailed to the responsible person at an address within the state of Oregon; or seven days after the date the notice is mailed to a responsible person outside of this state. (7) The civil penalty shall become final upon expiration of the time for filing an appeal, unless a responsible person properly appeals pursuant to Section 3.060 of the Eugene Code, 1971 or other duly adopted regulations. If appealed, the penalty shall become final, if at all, upon the hearing officer's decision affirming the imposition of the civil penalty. R-2.018-C Determination of Amount of Penalty. The amount of the administrative civil penalty to be assessed under R-2.018-B shall be determined in accordance with the following formula, as described herein. (a) The dollar amount of the assessment per day is calculated by multiplying the amount of the BASE (subsection (b)) by the MULTIPLIER (subsection (c)) and multiplying that by $10.00. Notwithstanding this formula, the maximum assessment for a violation per day shall be $2,000.00. (b) The BASE is the sum of "E" plus "P" plus "C" plus "N" where: 1. "E" is the effort made by the responsible person in taking all . feasible steps or procedures necessary or appropriate to correct the violation. The value of"E" shall be: a. 0, if the responsible person has made an active attempt to correct the violation. An active attempt requires a physical effort resulting in significant progress toward correcting the violation. Verbal communication does not itself constitute an active attempt, but it may be considered as a part of the necessary effort. b. 1, if the person has made minor attempts to correct the violation. A minor attempt includes a physical effort that results in no significant progress toward correcting the violation. Verbal communication does not itself constitute a minor attempt, but it may be considered as a part of the necessary effort. c. 2, if the person took little or no action whatsoever to correct the violation, or if the violation was so severe as to require immediate civil penalties. Little or no action includes verbal contact or assurances that the problem will be resolved, but with no Administrative Rule R-2.018 - 5 c:\ WINDOWS\TEMP\OOc20 18-2ao. wpd noticeable physical effort to correct the violation, and no visible progress toward correcting the violation. 2. "P" is the frequency of prior violations of ordinances, rules, orders, or permits. The value of "P" is based on prior similar violations verified as valid, regardless of whether enforcement action was taken. The value of "P" shall be: a. 1, if the present violation is the first violation of this code provision by the responsible person. b. 2, if the present violation is the. second or subsequent similar violation, but the first similar violation within the past two years. c. 3, if the present viol~tion IS the second similar violation within the past two years. d. 5, if the present violation is the third or subsequent similar violation within the past two years. 3. "C" is whether the cause of the violation was an unavoidable accident, negligence, or a reckless or intentional act. The value of "C" shall be: a. 1, if the violation was caused by an unavoidable accident or was caused by others. This category applies when the civil penalty is assessed either (i) against a person who caused the violation but could not have reasonably foreseen that a violation would occur; or (ii) against a person who is responsible for the property, such as an owner or landlord, but who was not physically in charge of the property when the violation occurred. b. 2, if the violation was caused by a responsible person's negligence. Negligence is the failure to exercise the care that a prudent person would exercise under the circumstances. This category applies where a person caused a violation by carelessness. c. 4, if the violation was caused by a responsible person's reckless or intentional acts. A reckless act is marked by a lack of proper caution or disregard for consequences. An intentional act is an act done by intention or design. Administrative Rule R-2.018 - 6 c:\ WINDOWS\TEMP\OOc20 18-2ao. wpd 4. "N" is the relationship of the violation to the protection, preservation and development of natural resources as required by local, State and Federal requirements and the number of prior similar violations of ordinances, rules, orders, or permits. The value of "N" shall be: a. 0, if there is no direct relationship between. the violation and natural resources in the immediate area. b. 5, if there is a direct relationship between the violation and natural resources in the immediate area and the present violation is the first verified violation of this code provision by the responsible person. c. 10, if there is a direct relationship between the violation and natural resources in the immediate area and the present violation is the second or subsequent similar violation by the responsible person. (c) The MULTIPLIER is the sum of"K" plus "G" where: 1. "K" is the knowledge the responsible person had at the time of the violation about the legality of his/her action, based on prior notice, order or enforcement action, experience and expertise relating to the circumstances of the violation. The value of "K" shall be: a. 1, if the responsible person had not been informed and could not reasonably be expected to be aware that the action constituted a violation. b. 3, if the responsible person reasonably should have known the action constituted a violation. c. 5, if through previous enforcement actions, permitting, licensing, or other means, the responsible person had been informed that the action constituted a violation. 2. "G" is the gravity and magnitude of the violation. This factor is evaluated at the time the enforcement officer initiates compliance efforts. The value of this factor does not decrease if, after enforcement action is initiated, City makes efforts to reduce the gravity of the violation or the responsible person makes corrections only at the insistence of the enforcement officer. The value of "G" shall be: Administrative Rule R-2.018 - 7 c:\ WINDOWS\ TEMP\OOc20 18-2ao.wpd a. 1, for a violation that is not an immediate threat to life or property and has only minor potential consequences, or for a violation that has already caused minor damage. These situations do not pose immediate threats to lives or property such that the violation can be tolerated while corrective action is taken. b. 2, for a violation that does not pose an immediate threat to life or property, but does pose significant potential adverse consequences, or for a violation that has already caused moderate damage. These situations can be tolerated for a limited period of time with interim measures taken to minimize the threat. c. 5, for a violation that poses an immediate and direct threat to life or property such that the violation cannot be tolerated, or for a violation that has already caused severe damage. Action must be taken immediately to prevent significant adverse consequences. Corrective action may include removing the hazard or preventing occupancy of the premises. R-2.018-D Appeal Procedure. (1) Appeals and hearings shall be governed by Section 3.060 of the Eugene Code, 1971, and as set forth herein or in other regulations authorized and adopted pursuant to provisions of the Eugene Code, 1971. (2) The hearings officer shall affirm the administrative civil penalty if the City had authority to impose the administrative civil penalty, the City substantially complied with applicable procedures, and the amount of penalty was properly determined in accordance with R-2.018-C. The hearings officer may modify the amount of the civil penalty based on the record and testimony received at the appeals hearing and the hearings officer's application of the evidence to the criteria contained in R-2.018-C. The hearings officer shall set aside the administrative civil penalty only if the City did not have authority to impose an administrative civil penalty or if the City substantially failed to comply with applicable procedures. Dated this lq ~ day of August, 2000. 7\)rl.~~ James R. Johnson City Manager ch Administrative Rule R-2.018 - 8 c:\ WINDOWS\TEMP\OOc20 18-2ao.wpd