§ 2-313. Hearing procedure.

(a)

Request for hearing. Upon the receipt of a named violator's timely request for an administrative hearing, the special magistrate shall set the matter down for hearing on the next regularly scheduled hearing date or as soon thereafter as possible or as mandated in the specified ordinance section which is enforced pursuant to this article.

(b)

Notice; contents. The special magistrate shall send a notice of hearing by first-class mail to the named violator at his last known address. The notice of hearing shall include, but not be limited to, the following:

(1)

Name of the code enforcement officer who issued the notice;

(2)

Factual description of the alleged violation;

(3)

Date of the alleged violation;

(4)

Section of the code allegedly violated;

(5)

Place, date, and time of the hearing;

(6)

Right of the violator to be represented by a lawyer;

(7)

Right of the violator to present witnesses and evidence;

(8)

Notice that failure of the violator to attend the hearing may result in a civil penalty being assessed against him; and

(9)

Notice that requests for continuances will not be considered if not received by the special magistrate at least ten calendar days prior to the date set for the hearing.

(c)

Scheduling hearing. The special magistrates shall call hearings on a monthly basis or upon the request of the code enforcement officer. No hearing shall be set sooner than 20 calendar days from the date of the service of the notice of violation.

(d)

Continuance. A hearing date shall not be postponed or continued unless a request for continuance, showing good cause for such continuance is received in writing by the special magistrate at least ten calendar days prior to the date set for the hearing.

(e)

Open to public. All hearings of the special magistrate shall be open to the public. All testimony shall be under oath. Assuming proper notice, a hearing may proceed in the absence of the named violator.

(f)

Transcription. The proceedings at the hearing shall be recorded and may be transcribed at the expense of the party requesting the transcript.

(g)

Administrative support. The county shall provide clerical and administrative personnel as may be reasonably required by each special magistrate for the proper performance of his duties.

(h)

County attorney or his designee to present case. Each case before a special magistrate shall be presented by the county attorney or the county attorney's designee.

(i)

No formal rules of evidence. The hearing need not be conducted in accordance with the formal rules relating to evidence and witnesses. Any relevant evidence shall be admitted if the special magistrate finds it competent and reliable, regardless of the existence of any common law or statutory rule to the contrary.

(j)

Rights of parties. Each party shall have the right to:

(1)

Call and examine witnesses;

(2)

Introduce exhibits;

(3)

Cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered on direct examination;

(4)

Impeach any witness regardless of which party first called him to testify; and

(5)

Rebut the evidence against him.

(k)

Findings of facts; preponderance of the evidence standard. The special magistrate shall make findings of fact based on the evidence of record. In order to make a finding upholding the code enforcement officer's decision, the special magistrate must find that a preponderance of the evidence indicates that the named violator was responsible for the violation of the relevant section of the Code as charged.

(l)

Costs; violator's responsibility if found guilty. If the named violator is found guilty of the violation, he may be held liable for the reasonable costs of the administrative hearing, at the discretion of the special magistrate.

(m)

Special magistrate's discretion; contents of decision. The fact-finding determination of the special magistrate shall be limited to whether the violation alleged did occur and, if so, whether the person named in the civil violation notice can be held responsible for that violation. Based upon this fact-finding determination, the special magistrate shall either affirm or reverse the decision of the code enforcement officer as to the responsibility of the named violator for the code violation. If the special magistrate affirms the decision of the code enforcement officer, the special magistrate, pursuant to subsection 2-302(c), shall determine a reasonable time period within which correction of the violation must be made. If the special magistrate reverses the decision of the code enforcement officer and finds the named violator not responsible for the code violation alleged in the civil violation notice, the named violator shall not be liable for the payment of any civil penalty, absent reversal of the special magistrate's findings pursuant to section 2-316. If the special magistrate decides to affirm the code enforcement officer's ruling he shall include the following elements in his written decision:

(1)

Amount of the civil penalty;

(2)

Administrative costs of the hearing;

(3)

Date by which the violation must be corrected to prevent imposition of continuing violation penalties (if applicable);

(n)

Special magistrate's authority. The special magistrate shall have the power to:

(1)

Adopt procedures for the conduct of hearings;

(2)

Subpoena alleged violators and witnesses for hearings; subpoenas may be served by law enforcement officers or by the staff of the special magistrate;

(3)

Subpoena evidence;

(4)

Take testimony under oath;

(5)

Assess and order the payment of civil penalties as provided herein;

(6)

A special magistrate shall postpone and shall not conduct a hearing if the named violator, prior to the scheduled hearing date, files with the county board of adjustments an administrative appeal concerning the interpretation or application of any technical provisions of the code section allegedly violated. However, once an issue has been determined by a special magistrate in a specific case, that issue may not be further reviewed by a county board in that specific case. A named violator waives his right to an administrative appeal to other county boards if the violator does not apply for such an appeal prior to the violator's code enforcement hearing before the special magistrate;

(7)

Upon the exhaustion of a timely filed administrative appeal and finalization of the administrative order by such board, the special magistrate may exercise all the powers given to him by this article. The special magistrate shall not, however, exercise any jurisdiction over such alleged code violations until the time allowed for the court appeal of the ruling has lapsed or until such further appeal has been exhausted;

(8)

The special magistrate shall be bound by the interpretations and decisions of duly authorized county boards concerning the provisions of the ordinances within their respective county jurisdictions. In the event such a board decides that an alleged violation of the ordinance is not in accordance with such board's interpretation of the ordinance provision on which the violation is based, the special magistrate shall not be empowered to proceed with the enforcement of the violation.

(Ord. No. 2015-14 , Div. 2, § 3, 7-23-2015)