98-05 Nuisance Enforcement
ORDINANCE NO. 98-5
AN ORDINANCE PROVIDING PROCEDURES FOR THE PURPOSE OF ENFORCING CERTAIN CITY OF SODAVILLE ORDINANCES AND TO BE KNOWN AS THE CITY OF SODAVILLE ENFORCEMENT ORDINANCE.
THE CITY OF SODAVILLE ORDAINS AS FOLLOWS:
Section 1.010. Title.
This ordinance shall be known as the City of Sodaville Enforcement Ordinance.
Section 1.020. Purpose.
This ordinance is enacted for the purpose of providing procedures to be used in enforcing certain City of Sodaville ordinances.
Section 1.030. Definitions.
“Offense” means “violation” as defined in subsection (3) of this section.
“Peace Officer” means a sheriff, constable, marshal, municipal policeman, or
member of the Oregon State Police.
“Violation” means conduct for which a fine is provided by a City of Sodaville Ordinance.
Section 2.010. Enforcement Officers.
The City Council of the City of Sodaville may, by Order of the Council, designate from time to time, one or more appropriate persons as Enforcement Officers for the purpose of implementing this Ordinance. Enforcement Officers shall serve at the pleasure of the City Council. Designation of an Enforcement Officer may be limited to enforcement of specific violations. The City Council may revoke designation as an Enforcement Officer without showing cause therefore. A copy of each of the Council’s Orders appointing an Enforcement Officer or Officers or revoking authority of an Enforcement Officer, shall be entered in the minutes of the City Council meeting.
Section 2.020. Issuance of Warnings.
The appropriate Enforcement Officer may issue a warning notice of an alleged Ordinance violation. If issued, such warning notice shall give a brief description of the violation alleged to exist, and shall be served either personally, by posting at the site of the violation, or by mailing by certified mail to the person accused of the violation. The warning notice shall further contain the name of the City Official to contact regarding the violation, the name of the person issuing the warning notice, the date the warning was issued, and a statement that failure to correct the alleged violation may result in initiation of enforcement procedures.
Section 2.030. Jurisdiction of Courts.
Violation of City Ordinances are subject to ORS 8.665, 153.110 to 153.3 10, and this ordinance. A circuit court or justice court has concurrent jurisdiction of all infractions.
Section 2.040. Commencement of Action for Ordinance Violation.
Whether or not a warning notice of an alleged Ordinance violation has been issued, the Enforcement Officer may commence proceedings either by issuing a citation by the method outlined in this Ordinance, and filed in a Linn County Circuit Court, or Linn County Justice Court.
Section 2.050. Enforcement by Means of Citation Filed in Circuit or Justice Court.
If the Enforcement Officer determines that enforcement of a violation defined by Ordinance, statute, or administrative rule by means of a citation filed in Circuit or Justice Court is warranted, the Enforcement Officer may proceed as provided in this ordinance.
Section 3.010. Form and Content of Citation.
A Citation conforming to the requirements of this Ordinance and ORS 1,525 may be used for all ordinance violations which occur in the City of Sodaville, Oregon.
Except as provided in this Ordinance, the procedures and substantive provisions of ORS 153.110 to 153.310 shall be followed.
The Citation shall consist of at least four parts. Additional parts may be inserted for administrative use. The required parts are:
a) The Complaint;
b) The Abstract of Record;
c) The Police or Enforcement Officer Record;
d) The Summons.
Each of the parts shall contain the information or blanks required by rules of the Supreme Court under ORS 1.525.
The complaint shall contain a form of certificate in which the complaint shall certify, under the penalties provided in ORS 153.990, that the complainant has reasonable grounds to believe, and does believe, that the person cited committed the offense contrary to law. A certificate conforming to this section shall be deemed equivalent of a sworn complaint.
Section 3.020. Minimum Requirements for Summons.
A summons in an infraction subject to this ordinance, ORS 8.665, 153.110 to 153.310 and 153,990 is sufficient if it contains the following:
The name of the court, the name of the person cited, the date on which the citation was issued, the name of the complainant and the time and place at which the person cited is to appear in court.
A statement or designation of the offense in such manner as can be readily understood by a person making a reasonable effort to do so, and the date, time and place at which the offense is alleged to have occurred.
A notice to the person cited that a complaint will be filed with the court based on the offense.
The amount of bail, if any, fixed for the offense.
Section 3.030. Minimum Requirements for Complaint.
Except as provided in this section, a complaint in an infraction subject to this Ordinance, ORS 8.665, 153.110 to 153.310, and 153,990 is sufficient if it contains the following:
a) The name of the court, the name of the state or of the city other public body in whose name the action is brought and the name of the defendant.
b) A statement or designation of the offense in such manner as can be readily understood by a person making a reasonable effort to do so and the date, time and place at which the offense is alleged to have occurred.
c) A certificate, as specified by ORS 153. 130, signed by the complainant.
The complaint shall be set aside by the court upon motion of the defendant before plea when the complaint does not conform to the requirements of this section. A pretrial ruling on a motion to set aside may be appealed by the City.
Nothing prohibits the court from amending the citation in its discretion.
Section 4.010. Hearing: Trial; Commencement: Burden of Proof; Pretrial Discovery: Offender as Witness.
The hearing of any violation complaint shall be by the court without a jury.
The hearing of any violation complaint shall not commence until the expiration of seven (7) days from the date of the complaint.
The City shall have the burden of proving the violation by a preponderance of the evidence.
The pretrial discovery rules set forth in the Oregon Rules of Civil Procedure shall apply to violation complaints. The Plaintiff may call the offender as a witness at the hearing.
Proof of negligence, malfeasance, misfeasance, nonfeasance, willful conduct, knowing conduct, intentional conduct, or any other culpable mental state is not an element of any violation.
At any hearing involving a violation complaint, an attorney shall not be provided for a defendant at public expense. At any hearing involving a violation complaint, the City Attorney may appear only if the defendant is represented by an attorney.
Section 4.020. Prosecution of Violation Complaint.
Notwithstanding any provision of the Oregon Rules of Civil Procedure or any other provision of this ordinance, the prosecution of one violation complaint shall not bar the subsequent prosecution of additional City Ordinance violations occurring or committed at the same time or as part of the same act or transaction or as part of the same occurrence as other ordinance violations.
Section 5.010. Civil Judgment.
A judgment upon a violation complaint is a civil judgment, as in any other civil judgment at law. The judgment involves only a fine, and does not incur loss by forfeiture, suspension or revocation of any license or any other privilege or civil penalty. A person against whom a judgment is issued does not suffer any disability or legal disadvantage, based upon said judgment, other than the enforcement by the City of Sodaville of the judgment.
Section 5.020. Appeal from Judgment.
An appeal from a judgment may be taken by either party as follows:
From a proceeding in Justice Court, as provided in ORS Chapter 53.
From a proceeding in Circuit Court, as provided in ORS 19.005 to 19.510.
Section 5.030. Court Costs.
The court shall charge court costs to the violator where:
a) The offender admits a violation of the City ordinance;
b) The violator fails to appear for the hearing or, following a hearing, is found to have violated a City ordinance; or
c) The violator enters into an agreement with the City for a consent decree whereby the violator does not admit violating the City ordinance but agrees to make necessary corrections, as set forth in the agreement, in order to bring the violator’s conduct, actions, omissions or property into compliance with City ordinances.
Court costs shall be $25.00. In any proceeding, said costs cannot be waived by the City, the violator or the court except in case of indigency or undue hardship under ORS 21.605. If the violator fails to pay the costs, the costs shall be entered as a judgment against the violator in the same manner and with like effect as a judgment for a fine.
Section 5.040. Consent Decree.
The City and the violator may enter into a consent decree. The consent decree may provide that the violator does not admit violation of a City ordinance but will make necessary corrections, as set forth in the agreement, to bring the violator’s actions, conduct, omissions or property into conformance with appropriate City Ordinances.
The violator, the violator’s attorney if any, and the City’s representative shall sign all consent decrees.
The consent decree shall be filed with the court as a final adjudication of the proceedings and shall constitute a dismissal of the action when the violator performs as agreed. The violator or the City of Sodaville may seek a court order dismissing the case upon completion of the conditions of the consent decree.
The violator’s failure to comply with the consent decree allows the City of Sodaville to seek any additional remedies provided by law or this Ordinance.
Section 6.010. Fines.
All fines paid to the City shall be credited to the General Fund, to be used for general City purposes.
Section 6.020. Special Costs.
The City shall be entitled to recover all special costs and disbursements that are reasonable and necessary expenses incurred in the successful prosecution of a violation complaint, other than for legal services, but including the costs, expenses, salaries and overhead costs of officers, employees and witnesses, the necessary expenses of taking depositions, the expense of publication of summons or notices, postage, compensation of expert witnesses, and the expense of copying any public or private record, book or document used as evidence in the trial.
The special costs shall be allowed to the City in the same manner as a judgment for fines.
Section 7.010. Issuance of Citation.
A peace officer or enforcement officer may issue a citation for violation of a City of Sodaville Ordinance.
Section 7.020. Appearance by Defendant.
The defendant shall either appear in Court at the time indicated in the Summons, or prior to such time shall deliver to the Court the summons, together with cash, checks or money order in the amount of the bail set forth on the Summons, enclosing therewith:
A request for a hearing; or
A statement of matters in explanation or mitigation of the offense charged; or
The executed appearance, waiver of hearing and plea of guilty appearing on the Summons. A statement in explanation or mitigation may also be enclosed with the guilty plea.
In any case in which the defendant personally appears in court at the time indicated in the summons, if the defendant desires to plead guilty and the judge accepts the plea, the judge shall hear any statement in explanation or mitigation that the defendant desires to make.
Section 7.030. Effect of Statement and Explanation in Mitigation.
If a defendant has submitted to the Court any written statement in explanation or mitigation under Section 7.020 or ORS 153.160, the statement constitutes a waiver of hearing and consent to judgment. The Court may declare a forfeiture of bail on the basis of the statement and any testimony or written statement of the person issuing the citation or other person which may be presented to the Court.
Section 7.040. Fixing Hearing Dates: Notice to Defendants,
If the defendant requests a hearing under ORS 153.160, or if pursuant to Section 7.050 or ORS 153.190, the Court directs that a hearing be held, the Court shall fix a date and time for the hearing and, unless notice is waived, shall at least five (5) days in advance of the hearing mail to the defendant a notice of the date and time so fixed.
Notice to the defendant required pursuant to Section 7.040. 1. shall be made in the form of a Court “Notice to Appear” and be placed in the United States mail addressed to the defendant at his last known address with postage prepaid thereon, or by other notice deemed adequate by the Court to provide actual notice to the defendant.
Section 7.050. Hearing Discretionary with Court: Exception.
For any Ordinance violation for which a Citation has been issued, the Court may direct a hearing be held or may enter the appropriate judgment, impose a fine, direct that a fine be paid out of the bail, deposit and unless the court orders otherwise, remit the balance to the defendant or to any other person designated by the defendant.
No fine may be imposed in excess of the amount of bail deposited unless a hearing is held.
Section 7.060. Warrant for Arrest.
If a person cited fails to comply with the provisions of Section 7.020 or ORS 153.200, or if the person fails to appear at any time fixed by the court, a warrant for the arrest of the person may be issued. A warrant issued by a circuit or justice court may be served, without further endorsement, in any county in this State.
No warrant of arrest may be issued pursuant to this Section after a period of 60 days from the date of entry of an Order declaring a forfeiture of bail or other Security given by the defendant. Unless a warrant has been issued before the expiration of that period, the Order of Forfeiture shall be deemed the final disposition of the case.
Section 8.010, Enforcement and Penalties.
Any individual, firm or corporation, whether as principal, agent, or employee violating any provision of a City of Sodaville Ordinance for which a penalty is provided shall, upon conviction thereof, be punished by a fine not less than $50.00 and not more than $300.00,
For purposes of this Ordinance, a failure to comply with any provision of a City of Sodaville Ordinance from day to day shall be a separate offense for each such day.
Section 8.020. Bail.
Bail for each violation shall be one-half the amount set out as a maximum fine by Section 8.010, Emergency. Inasmuch as it necessary for the peace, health, and safety of the citizens of Sodaville, an emergency is hereby declared and this ordinance shall be in full force and effective upon its passage by the council and approval by the mayor.
INTERGOVERNMENTAL AGREEMENT
(Pursuant to Linn County Order #98-3 12)
THIS AGREEMENT is entered into by and between LINN COUNTY, a political subdivision of the State of Oregon, hereinafter referred to as "COUNTY," and the CITY OF SODAVILLE, a municipal corporation, hereinafter referred to as "CITY."
RECITALS
WHEREAS, ORS 190.010 provides that units of local governments may enter into agreements for the performance of any or all functions and activities that a party to the agreements, its officers or agents, have authority to perform, and
WHEREAS, Sections 11, 22, and 24 of the City of Sodaville Charter of 1996 provide for a Municipal Court and Judge, and for Council appointment of a Municipal Judge, and
WHEREAS, the County maintains and operates the Lebanon Justice Court in which the City of Sodaville lies; and
WHEREAS, the City desires to reduce costs while maintaining service to the residents of Sodaville by contracting for the provision of judicial services from the Lebanon Justice Court; and
WHEREAS, ORS 51.037 provides that the City and the County may enter into an agreement whereby the County Justice of the Peace may perform judicial services on behalf of the City, and
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
1. COUNTY’S OBLIGATIONS.
The County, through the Justice of the Peace for the Lebanon Justice Court, shall perform the duties and functions of the Sodaville Municipal Court as provided in the applicable Charter provisions and ordinances of the City of Sodaville and the laws of the State of Oregon.
a. Except as otherwise provided by law, the County shall apply the applicable general laws of the State of Oregon to all proceedings for violations of a City ordinance, and they shall be governed thereby. The County shall conduct jury trials when appropriate. The County shall have the authority to issue process for the arrest of any person accused of an offense against the City ordinances; to commit, when appropriate, any accused person to jail or admit him or her to bail pending trial; to issue subpoenas; to compel witnesses to appear and testify in court on the trial of any cause before it; to compel obedience to such subpoenas; to levy fees, fines and assessments as designated by state law or City ordinance; to enter judgment on any matter before it; to issue any process necessary to carry out and effect the judgments of the court; and to punish any person found to be in contempt in court.
b. Whenever possible, trials and hearings shall be scheduled to be convenient with the work schedule of City employees required to appear at trial or hearing.
c. Whenever the County deems it necessary, it shall appoint pro tempore Justices of the peace pursuant to the statutory process. The County shall notify the City Recorder of any periods of time of pro tem appointment during which trials or hearings on City initiated matters will be conducted. Whenever the City deems it necessary, it may appoint pro tempore municipal court judges, who serve at its pleasure, to preside over city initiated trials or hearings. The City shall bear the cost of such pro tempore municipal court judges, and shall provide a place for the hearings or trials other than the Justice Court.
d. The County shall perform all clerical functions inherent in the delivery of municipal court services, including giving all notices required by state law, and collecting and appropriately disbursing all fees, fines and assessments. It shall pay directly to the State any state assessments or other required state fees, The County shall pay to the City the fines collected pursuant to services rendered under this agreement which are beyond those retained pursuant to Section 3. below. For the purpose of this agreement, the word "fines" shall not include any State, County or other assessments.
e. The County shall be responsible for providing and paying the Justice of the Peace, and County appointed pro tempore justices, and any necessary clerical support.
2. CITY’S OBLIGATIONS.
The City shall appoint the Justice of the Peace for the Lebanon Justice Court as the Municipal Court Judge for the City. Upon termination of this agreement, the appointment shall also simultaneously terminate.
a. The City shall provide copies of all relevant municipal ordinances to the Justice, and shall provide at its expense all forms used exclusively in connection with such ordinances. Upon termination of this agreement, these materials shall be returned to the City.
b. If the City exercises its rights to appoint a pro tem Municipal Court Judge, it shall notify the County as soon as possible.
3. COMPENSATION.
As compensation for the services rendered pursuant to this agreement, the County will retain:
a. 50% of all fines levied on citations issued by City enforcement officers for violations of the Oregon Motor Vehicle Code and municipal ordinances, and
b. 100% of all fines levied in connections with all other matters initiated by City enforcement officers.
4. REVENUE.
Not later that the 20" of each month, the County shall remit to the City all that revenue collected during the preceding month which belongs to the City under this agreement. The County shall also transmit a statement delineating the sources and amounts of the revenue.
5. RECORDS INSPECTION.
Upon one week’s written notice, the City Recorder or a qualified auditor designated by the City may inspect or audit the County records pertaining to services under this agreement. The City and County shall cooperate in the timing of the inspection or audit to avoid conflict with the court docket or functions. Such inspection or audit shall be performed at no cost to the County.
6. TERM AND TERMINATION.
This agreement shall begin on 12/23, 1998, and shall continue in effect until terminated pursuant to this section. Either party may terminate this agreement with or without cause upon thirty (30) days written notice to the other party. Upon termination, all matters which have been adjudicated or which are within the adjudicative process, or are on appeal to another court shall remain the responsibility of the County and shall remain subject to the terms of this agreement. All other cases filed by the City which have not yet entered the adjudicative process shall be promptly returned to the City, along with all bail or other revenue deposited with the County relating to those cases, free of any obligation in this agreement.
7. WORKER’S COMPENSATION.
Each party working under this contract is a subject employer under the Oregon Worker’s Compensation Law and shall comply with ORS 656.017, which requires each to provide Worker’s Compensation coverage for all its subject workers. Each party is also an independent contractor for purposes of the Oregon Workers’ Compensation Law (ORS Chapter 676) and is solely liable for any Workers’ Compensation coverage under this contract.
8. INDEMNITY.
To the extent allowed by the Oregon Constitution but subject to the provisions of the Oregon Tort Claims Act, each of the parties hereto agrees to indemnify and save the other harmless from any claim, liability or damage resulting from any error, omission or act of negligence on the part of the indemnifying party, its officers, agents or employees in the performance of its responsibilities under this agreement.
9. AMENDMENTS.
No amendment to this agreement shall be effective unless made in writing and signed by both parties.