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7. Discussion on Wind and the Pines and regulation of parking Staff Report Date of Meeting: May 2, 2018 To: City Council From: Neil Soltis, Administrator Re: Wind in the Pines Parking Background: At the April 17 City Council meeting there was discussion of utilizing an Administrative Citation process for the enforcement of parking permits at Wind in the Pines. Following this report are 2 examples of ordinance that would establish an administrative citation process along with an information handout on administrative citations. If the intent is to use parking permits to control access to the park and the intent is to use an administrative citation as an option to a criminal citation, action would need to be taken on an ordinance. Note that before an ordinance can be approved there needs to be a 10-day notice. If passes are being utilized the cost of parking pass hangers range from purchasing paper stock hangars and using the City copier ($0.50 / unit) to purchasing plastic hangers ($1.50 / unit). In addition to the cost of the permits there would be costs incurred for printing any administrative citations and for signage. Direction is needed from the Council on whether to utilize parking permits and how the enforcement would take place. If the decision were to be made at the meeting a draft of the ordinance could be posted to comply with the 10-day notice requirement so that action could be taken at the May 17th Council meeting.   The City of Brainerd has initiated an Administrative  Citation process to address infractions of a civil  nature defined in the City Codes.  This procedure is  being implemented because the Crow Wing County  Courts system is overloaded, and citizens are left with  the feeling of being labeled a criminal for violations of  administrative regulations.     Before issuing an Administrative Citation, the City  may issue an “Order to Correct” letter, outlining the  violation and compliance deadline.    An Order to Correct an Administrative Violation will  clearly state the nature of the violation, the City Code  section it pertains to, the date to have it corrected,  and any other options open to you.  Please do not  ignore this letter.  Failure to  make the corrections will result  in an Administrative Citation  which will establish a fine,  along with an order to correct  the violation and failing that,  the City will abate the problem  and you will be assessed the  costs and the fine.    The end goal of this program is to achieve a  community of quality and to instill pride in the  neighborhoods, thereby retaining property values.       You are asked to take responsibility and action; make  arrangements and begin work early enough to  complete the repair on time.  If you are unable to  complete all the work by the compliance date, please  call the staff person listed on the letter and request  an extension to avoid further action.  Staff can work  with you to help resolve the violation, including but  not limited to reasonable extensions for compliance.      If you receive a citation, you may correct the violation  and pay the fine.   If you decide to contest the  violation, you may request a hearing; you must  respond within 10 days from the citation date.  The  purpose of a hearing is to determine whether or not a  violation(s) of the City Code existed. If you request a  hearing and the citation stands, you will be  responsible for the hearing costs, the fines as  determined by the hearing officer, and the correction       hearing and the citation stands, you will be  responsible for the hearing costs, the fines as  determined by the hearing officer, and the correction  of the violation.    If you do contest the citation and request a hearing,  you will be notified by mail as to the date, time and  place of the hearing as well as the name of the  Hearing Officer.  If you cannot make that date or wish  to request the Hearing Officer be removed from the  case, you must do so no later than 15 days before the  date of the hearing.  If so, a new hearing date will be  set and you will be notified.    The hearing will be informal and will be recorded.   You may present any information and have witnesses  to support your case.  The City will present its case  and provide any supporting documentation or  witnesses as well.  The Hearing Officer may render a  decision immediately or can delay the decision but  must issue a decision within 10 days of the hearing.   You will receive the decision in writing and if the  violation is upheld, the amount of the fines and other  pertinent information will be provided.  The decision  of the Hearing Officer is final and may only be  appealed to the Minnesota Court of Appeals.      If the violation is upheld, you will have 30 days to  correct the violation and pay the fines and hearing  costs.  Unpaid fines including an administrative  charge plus interest of the total balance will be  assessed against your property.  For uncorrected or  continued violations, the City will abate the violation  and assess the charges for doing so.    More information can be obtained on the City  Website at:  ci.brainerd.mn.us        City of Brainerd Administrative Citation Program ADMINISTRATIVE CITATIONS AND CIVIL PENALTIES [Application.] Sections shall govern administrative citations and civil penalties for violations of the City Code. [Alternative enforcement methods.] The city council finds that there is a need for alternate methods of enforcing the City Code. While criminal fines and penalties have been the most frequent enforcement mechanism, there are certain negative consequences for both the city and the accused. The delay inherent in that system does not ensure prompt resolution. Citizens resent being labeled as criminals for violations of administrative regulations. The higher burden of proof and the potential of incarceration do not appear appropriate for most administrative violations. The criminal process does not always regard City Code violations as being important. Accordingly, the city council finds that the use of adminis trative citations and the imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This method of enforcement shall be in addition to any other legal remedy which may be pursued for City Code violations. The administrative offense procedures established pursuant to this chapter are intended to provide the public and the city with an informal, cost effective, and expeditious alternative to traditional criminal charges for violations of certain ordinance provisions. The procedures are intended to be voluntary on the part of those who have been charged with the administrative offenses. At any time prior to the payment of the administrative penalty as is provided for hereafter, the individual may withdraw from participation in the procedures, in which event the city may bring criminal charges in accordance with law. Likewise, the city, in its discretion, may choose not to initiate an administrative offense and may bring criminal charges in the first or succeeding instances. General provisions. (1) A violation of any provision of the City Code or the acts prohibited in section xxxx is an administrative offense which may be subject to an administrative citation and civil penalties pursuant to this chapter. Each day a violation exists constitutes a separate offense. (2) Any officer of the W ashington County sheriff Department or any other person employed by the city, authorized in writing by the city administrator shall, upon determ ining that there has been a violation, notify the violator, or in the case of a vehicular violation, attach to the vehicle a notice of the violation. Said notice shall set forth the nature, date and time of violation, the name of the official issuing the notice, and the amount of the scheduled penalty. (3) Once such notice is given, the alleged violator may, within seven days of the time of issuance of the notice, pay the amount set forth on the schedule of penalties for the violation as adopted by the ci ty council resolution from time to time, or may request a hearing in writing, as is provided for hereafter. The penalty may be paid in person or by mail, and payment shall be deemed to be an admission of the violation. (4) Any person contesting an administrative offense pursuant to this chapter may, within seven days of the time of issuance of the notice, request a hearing by a hearing officer who shall forthwith conduct an informal hearing to determine if a violation has occurred. The hearing officer shall have authority to dismiss the violation or reduce or waive the penalty. If the violation is sustained by the hearing officer, the violator shall pay the penalty imposed within seven days or withdraw from participation in the administrative procedure by notice in writing. (5) A person designated in writing by the city administrator shall be the hearing officer. The hearing officer is authorized to hear and determine any controversy relating to administrative offenses provided for in this chapter. Recovery of civil penalties. (1) If a civil penalty is not paid within the time specified, it shall constitute: a. A lien upon the real property upon which the violation occurred if the property or impro vements on the property was the subject of the violation and the property owner was found responsible for that violation; or b. A personal obligation of the violator in all other situations. (2) A lien may be assessed against the property and collected in the same manner as taxes. (3) A personal obligation may be collected by any appropriate legal means. (4) A late payment fee to ten percent of the fine shall be assessed for each 30-day period, or part thereof, that the fine remains unpaid after the due date. (5) Failure to pay a fine is grounds for suspending or revoking a license or permit or other approval associated with the violation. Criminal penalties. The following are misdemeanors, punishable in accordance with state law. (1) Failure to pay a fine or request a hearing within seven days after issuance of an administrative citation. (2) Failure to appear at a hearing which was scheduled. (3) Failure to pay a fine imposed by a hearing officer within seven days after it was imposed, or such other time as may be established by the hearing officer. Brainerd City Code 320.01 Section 320 – Administrative Citations Section 320.01 Purpose. The City Council determines that there is a need for alternative methods of enforcing the City Codes. While criminal fines and penalties have been the most frequent enforcement mechanism, there are certain negative consequences for both the City and the accused. The delay inherent in that system does not ensure prompt resolution. Citizens resent being labeled as criminals for violations of administrative regulations. The higher burden of proof and the potential of incarceration do not appear appropriate for most administrative violations. The criminal process does not always regard City Code violations as being important. Accordingly, the City Council finds the use of administrative citations and the imposition of civil penalties is a legitimate and necessary alternative method of enforcement. This method of enforcement is in addition to any other legal remedy that may be pursued for City Code violations. Section 320.03 Alternative Methods of Enforcement. This administrative enforcement procedure seeks to gain compliance with certain provisions of the City Code prior to any formal criminal or civil court action. The administrative hearing process provided for in this Section shall be in addition to any other legal or equitable remedy available to the City for City code violations, except that if a determination is made by the hearing officer pursuant to the hearing process detailed in Section 320.19 that a violation did not occur, the City may not then proceed with criminal prosecution of the same act or conduct. Section 320.05 Authority to Issue Order to Correct Letters and Administrative Citations. The following City employees and agents are authorized to issue compliance letters and administrative citations for violations of the City Codes: 1) Licensed peace officers, the Crime Prevention Specialist, and Community Service Officers of the Brainerd Police Department; 2) City Building Official; 3) Building Inspectors; 4) Housing Inspector; 5) Animal Control Officer; 6) City Engineer; 7) City Planner; 8) Fire Chief, or Fire Inspector of the Brainerd Fire Department Section 320.07 Administrative Offenses; Schedules of Fines and Fees. Subd. 1 A violation of any provision of the City Code is an administrative offense which may be subject to an administrative citation and civil penalties pursuant to this ordinance. Each day a violation exists constitutes a separate offense. Brainerd City Code 320.07 Subd. 2 Subd. 2 An administrative offense may be subject to a civil penalty not exceeding $2,000. Subd. 3 The City Council shall adopt by resolution a schedule of recommended fines for offenses initiated by administrative citation. The City Council is not bound by that schedule when a matter is appealed for administrative review. Subd. 4 The City Council may adopt a schedule of fees to be paid to administrative hearing officers. Subd. 5 The City Council shall adopt written procedures for administering the administrative citation program. Section 320.09 Order to Correct; Administrative Citations. Upon the reasonable belief that an administrative offense has occurred, the City officials listed in Section 320.05 shall serve on the violator an order to correct the violation. If compliance is not achieved within the timeline prescribed in the order to correct the violation, the official is authorized to issue an administrative citation. An administrative citation shall be presented in person or by first class mail to the person responsible for the violation. Service shall be deemed complete upon depositing the citation in the U.S. Mail, properly addressed to last known address of the person to be served and postage prepaid. The citation shall state the following: date, time and nature of the offense, citing the relevant portion of the City Code that was allegedly violated, the amount of the scheduled civil fine, and the manner for paying the fine, a statement that the City Code violation and the amount of the administrative civil penalty may be contested to be heard before an independent hearing officer by notifying the City Administrator or designated representative in writing within 10 days of the date of the citation, and a statement that failure to pay the administrative civil penalty may result in it being assessed against the property as provided in Minnesota Statutes Chapter 429. Section 320.11 Exceptions to Issuance of Order to Correct Letter. For violations of the following sections, the City shall not be required to issue a compliance letter and may proceed directly to the issuance of an administrative citation as provided in Section 320.09. 1) Repeat Offender. If the same owner commits a subsequent violation within 12 months after a compliance letter has been issued for the same or similar offense. 2) License Violations. For any license violations, including not having a license. 3) Traffic or Parking Violations. For traffic or parking violations issued under Sections 1300, 1305, 1310 and 1315 including obstruction of fire hydrants or fire lanes. 4) Animal Violations. For any violations of City Code Section 900.03 (Running at Large) or City Code 900.21 (Dangerous Dogs). 5) Noise Violations. For any violation of City Code Section 2014 (Noise Related Issues). Brainerd City Code 320.13 Section 320.13 Reasonable Extensions. Following service of the compliance letter, the City shall attempt to work with the owner to resolve the violation, including but not limited to responding to reasonable extensions for compliance. Section 320.15 Payment of Penalty and Correction of Violation. If the owner pays the administrative civil penalty and corrects the City Code violation, no further action will be taken against the owner or the owner’s real property for that same violation. If payment is made but correction is not accomplished, a subsequent administrative citation may be issued, criminal proceedings may be initiated, or any other proceedings or remedies available in order to enforce correction of the violation. If no payment is made and no correction of the violation is made, the City may assess the administrative civil penalty against the property owner pursuant to Minnesota Statutes Chapter 429, issue a subsequent administrative citation and commence a new administrative process, initiate criminal proceedings, or initiate other enforcement action authorized by law, or a combination hereof. Section 320.17 Request for Hearing. An owner or occupant may contest the administrative citation and the amount of the fine by requesting a hearing, in writing, within 10 days of the date of the citation, to the City Administrator or designated representative. Section 320.19 Administrative Hearing Procedures. Subd 1. Hearing Officers. The City Council will periodically approve a list of lawyers, from which the City Administrator will select a Hearing Officer to hear and determine a matter for which the hearing is requested. The person who has requested the hearing has the right to request, no later than 15 days before the date of the hearing, that the assigned Hearing Officer be removed from the case. One such request for each case will be granted by the City Administrator. A subsequent request must be directed to the assigned Hearing Officer who will decide whether the Hearing Officer can fairly and objectively review the case. If such a finding is made, the Hearing Officer shall remove himself or herself from the case, and the City Administrator shall assign another Hearing Officer. The Hearing Officer is not a judicial officer, but is a public officer as defined by Minnesota Statutes, Section 609.415. The Hearing Officer shall not be a current or former employee of the City of Brainerd. Subd 2. Notice of Hearing. Notice of the hearing must be served in person or by first class mail to the person responsible for the violation no less than 20 days in advance of the scheduled hearing, unless a shorter time is accepted by both parties. Service shall be deemed complete upon depositing the Notice of Hearing in the U.S. Mail, properly addressed to last known address of the person to be served and postage prepaid. Subd 3. Payment for Cost of Hearing. The cost of the hearing shall be borne solely by the non-prevailing party. The City shall provide an estimate of the cost of the hearing at the time of the request for hearing. The City Council has the authority to reduce the non-prevailing party’s costs where that party can demonstrate indigency by clear and convincing evidence. Brainerd City Code 320.19 Subd. 3 cont Proof of indigency can be demonstrated by the party’s receipt of means tested governmental benefits or a demonstrated lack of assets or current income. Such proof shall be presented to the City Council for determination subsequent to the hearing. However, the Hearing Officer at the time of the hearing shall make specific findings as to whether or not the party is indigent with said findings presented to the City Council. In all cases, where the party requesting the hearing is unable to attend and fails to request a continuance of the hearing at least 48 hours in advance of the scheduled hearing, all costs incurred by the City attributable to the hearing shall be charged to the requesting party. Subd 4. Hearing Procedures. At the hearing, the parties shall have the opportunity to present testimony and question any witnesses, but strict rules of evidence shall not apply. The Hearing Officer shall record the hearing and receive testimony and exhibits and the full record of the hearing shall be kept. The Hearing Officer shall receive and give weight to evidence, including hearsay evidence, which possesses probative value commonly accepted by reasonable and prudent people in the conduct of their affairs. Subd 5. Authority of Hearing Officer. The Hearing Officer has the authority to determine that a violation did or did not occur, to dismiss a citation or impose the scheduled fine or to reduce, stay or waive a scheduled fine either unconditionally or upon compliance with appropriate conditions. When imposing a penalty for a violation, the hearing officer may consider any or all of the following: 1) The duration of the violation; 2) The frequency or recurrence of the violation; 3) The seriousness of the violation; 4) The history of the violation; 5) The violator’s conduct after issuance of the notice of hearing; 6) The good faith effort of the violator to comply; 7) The economic impact of the penalty on the violator; 8) The impact of the violation upon the community; 9) Any other factors appropriate to a just result. Subd 6. Fines for Continuing Violations. The Hearing Officer may exercise discretion to impose a fine for more than one day of a continuing violation but only on a finding that the violation caused a serious threat of harm to the public health, safety, or welfare, or the accused intentionally and unreasonably refused to comply with the Code requirement. The Hearing Officer’s decision and supporting reasons for continuing violations must be in writing. Subd 7. Decision of the Hearing Officer. The Hearing Officer shall issue a decision in writing to both parties within 10 days of the hearing. Any fines or penalties imposed must be paid no later than 30 days of the date of the Hearing Officer’s order. If the fine is not paid, the City may assess the civil penalty against the owner’s property pursuant to Minnesota Statutes Chapter 429. If the Hearing Officer determines that no violation occurred, the City may not proceed with criminal prosecution for the same act or conduct. The decision of the Hearing Officer is final and may only be appealed to the Minnesota Court of Appeals by petitioning for a writ of certiorari pursuant to Minnesota Statute Section 606.01. Brainerd City Code 320.21 Section 320.21 Payment of fines. Prior to any assessment for unpaid fines, the City shall seek payment of the fines by notifying the owner of the property in writing of the fine imposed. Section 320.23 Assessment Procedure. Unpaid fines including an administrative charge of $25.00 plus interest of the total balance will be assessed pursuant to Minnesota Statutes, Chapter 429, against the property of the owner charged with the violation. For uncorrected or continued violations, the City will correct the violation and assess the charges for doing so. (Added Ord. 1191 – 2003, Ord. 1356 - 2010)