9.10A.090 Hearing before the hearing examiner.
A. Hearing. The hearing will be scheduled as provided in BCC 9.10A.080(A)(5).
B. Procedure. The hearing examiner shall conduct a hearing on the notice of failure to comply pursuant to the rules of procedure of the hearing examiner. The chief of police or his/her designee and the person in charge to whom the notice of failure to comply was directed may participate as parties in the hearing and each party may call witnesses. The city shall have the burden of proof to show by a preponderance of the evidence that the property is a chronic nuisance property under this chapter and that the corrective action is reasonably calculated to abate the chronic nuisance. Copies of police incident reports and reports of other city departments documenting nuisance activities shall be admissible in such actions. Additionally, evidence of a property’s general reputation and the reputation of persons residing in or frequenting the property shall be admissible in such actions.
C. Decision of the Hearing Examiner.
1. The hearing examiner shall affirm, vacate, or modify the city’s decisions regarding the alleged violation and corrective action and mail a copy of the decision to the person in charge and to the chief of police within 10 working days of the hearing.
2. The hearing examiner shall have authority to impose remedies for violation of this chapter as provided in BCC 9.10A.110. The hearing examiner shall issue an order to the person in charge 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 (C)(3) of this section;
e. Make any other order that will reasonably abate nuisance activities from occurring on the property, including authorizing the city to take action to abate nuisance activities from occurring upon the property if other hearing examiner orders are not complied with or do not abate nuisance activity on the property and providing that the costs of such city action are to be paid for by the person in charge of the property;
f. 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 hearing examiner shall be in accordance with the monetary penalty schedule in BCC 9.10A.060.
a. The hearing examiner shall have the following options in assessing monetary penalties:
i. Assess monetary penalties beginning on the date of the declaration of chronic nuisance property pursuant to BCC 9.10A.040; or
ii. Some other date after the declaration of chronic nuisance property; or
iii. Assess no monetary penalties.
b. In determining the monetary penalty assessment, the hearing examiner shall consider the following factors:
i. Whether the person in charge responded to the chief of police’s attempts to contact the person and cooperated with efforts to correct the violation;
ii. Whether the person in charge failed to appear at the hearing;
iii. Whether the violation was a repeat violation;
iv. Whether the person in charge showed due diligence and/or substantial progress in correcting the violation;
v. Whether a genuine code interpretation issue exists; and
vi. Any other relevant factors.
D. Failure to Appear. If the person in charge to whom the notice of failure to comply was issued fails to appear at the scheduled hearing, the hearing examiner will enter an order finding the violation as stated in the notice of failure to comply, and ordering the appropriate remedies as provided in BCC 9.10A.110. The city will carry out the hearing examiner’s order and recover all related expenses, plus the cost of the hearing and any monetary penalty from that person in charge.
E. Appeal to Superior Court. An appeal of the decision of the hearing examiner must be filed with superior court within 20 calendar days from the date the hearing examiner’s decision was mailed to the person in charge to whom the notice of failure to comply was directed, or is thereafter barred. (Ord. 6157 § 1, 2014.)