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ORD 07-560 ORIGINAL ORDINANCE NO. 8,- Sf.&, 0 AN ORDINANCE OF THE CITY COUNCIL OF THE .CITYOFFEDERAL WAY, WASHINGTON, AMENDING THE CRIMINAL ENFORCEMENT PENAL TY PROVISIONS OF CHAPTER 1, ARTICLE III AND CHAPTER 22, ARTICLE I OF THE FEDERAL WAY CITY CODE. (Amending Ordinance Nos. 90-43, and 99- 342) WHEREAS, among the responsibilities imposed on the City of Federal Way are those involving enforcement of ordinances proscribing violations of criminal laws adopted as a part of the Federal Way City Code; and, WHEREAS, the provisions of the Federal Way City Code include identification of certain criminal penalties in its criminal code designed to provide for public safety within the City and to meet specific needs ofthe City; and, WHEREAS, the Federal Way City Code is at variance with state law with respect to the penalties for certain designated misdemeanors; and WHEREAS, the numbering provisions ofFWCC 1-21 require slight renumbering for clarity; and WHEREAS, the Federal Way City Council finds that it is in the best interest of its citizens to update criminal penalty provisions of Chapter 1 and a criminal penalty provision of Chapter 22 of the City Code to ensure more consistent and effective enforcement and prosecution of criminal activity within the City, ORD # f),-S&D , PAGE 1 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. Chapter 1, Article III, Section 1-16 of the Federal Way City Code is hereby amended to read as follows: 1-16 Order to cease activity. (a) Issuance. Whenever the enforcement officer determines that any activity is being conducted or any development is occurring that does not conform to the applicable provisions of this Code, or that civil violation otherwise exists, he or she may issue an order to cease activity directing any person causing, allowing and/or participating in the offending conduct to cease such conduct immediately. (b) Posting and service of order. The enforcement official shall serve the order upon the person to whom it is directed, either by: (1) Delivering it personally; or (2) By mailing a copy ofthe order to cease activity by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address and by posting a copy ofthe order to cease activity conspicuously on the affected property or structure, or as near to the affected property or structure as feasible. Proof of service shall be made at the time of service by a written declaration under penalty of peljury executed by the person effecting the service, declaring the time and date of service and the manner by which service was made. Any failure of the person to whom the order to cease activity is directed to observe the posted order or to actually receive the mailed order shall not invalidate service made in compliance with this section, nor shall it invalidate the order to cease activity. ORD # 07- SlolJ , PAGE 2 (c) Appeal of order to cease activity. An order to cease activity may be appealed under the procedures set forth in FWCC 1-19. During any such appeal, the order to cease activity shall remain in effect. (d) Effect of order to cease activity. When an order to cease activity has been issued, posted and/or served pursuant to this section, it is unlawful for any person to whom the order is directed or any person with actual or constructive knowledge of the order to conduct the activity or perform the work covered by the order, even if the order to cease activity has been appealed, until the enforcement officer has removed the copy of the order, if posted, and issued written authorization for the activity or work to be resumed. Violation of an order to cease activity constitutes a misdemeanor punishable by a fine of up to $5,000 $1.000, or imprisonment for up to six months ninety (90) days, or both. In addition to such criminal penalties, the city may enforce the order to cease activity in accordance with FWCC 1-21 below, and/or enforce it in superior court. (Ord. No. 99-342, ~ 3, 5-4-99) SECTION 2. Chapter 1, Article III, Section 1-17 ofthe Federal Way City Code is hereby amended to read as follows: 1-17 Notice of violation and order to correct. (a) Issuance. Whenever the enforcement official determines that a civil violation has occurred or is occurring, he/she may issue notice of violation and an order to correct ("notice and order") to the property owner or to any person causing, allowing and/or participating in the violation. The notice and order issued pursuant to this section represents a determination that a violation ofthis Code has been committed. This determination is final and conclusive unless appealed as provided herein. (b) Content. The enforcement official shall include the following in the notice and order: (1) The name and address ofthe property owner and/or other person to whom the notice and order is directed; ORD #07"'5100 , PAGE 3 (2) The street address or description sufficient for identification ofthe building, structure, premises, or land upon or within which the violation has occurred or is occurnng; (3) A description of the violation and a reference to that provision of a city development regulation which has been violated; (4) A statement ofthe action required to be taken to correct the violation as determined by the enforcement official and a date or time by which correction is to be completed; (5) A statement that the person to whom the notice and order is directed must: a. Complete correction ofthe violation by the date stated in the notice; or b. Appeal the notice and order as provided in FWCC 1-19; and (6) A statement that, if such violation is not corrected and the notice and order is not appealed, a monetary penalty in an amount per day for each violation as specified by FWCC 1-17(e) shall accrue against the person to whom the notice and order is directed for each and every day, or portion of a day, on which the violation continues following the date set for correction. (c) Service of order. The enforcement official shall serve the notice and order upon the person to whom it is directed, either by: (1) Delivering it personally; or (2) By mailing a copy of the order to correct violation by certified mail, postage prepaid, return receipt requested, to such person at his/her last known address and by posting a copy of the notice and order conspicuously on the affected property or structure. Proof of service shall be made at the time of service by a written declaration under penalty of peljury executed by the person effecting the service, declaring the time and date of service ORD#07-sbO , PAGE 4 and the manner by which service was made. Any failure of the person to whom the notice and order is directed to observe the posted notice and order or to actually receive the mailed notice and order shall not invalidate service made in compliance with this section, nor shall it invalidate the notice and order. (d) Extension. Upon written request received prior to the correction date or time, the enforcement official may extend the date set for correction for good cause. The enforcement official may consider substantial completion of the necessary correction or unforeseeable circumstances which render completion impossible by the date established as a good cause. ( e) Monetary penalty. The amount of the monetary penalty per day or portion thereof that each violation continues beyond the date set in a notice and order is as follows: (1) First violation, $100.00; (2) Second violation, $200.00; (3) Third violation, $300.00; (4) Additional violations in excess ofthree, $500.00. (f) Continued duty to correct. Payment of a monetary penalty pursuant to this chapter does not relieve a person of the duty to correct the violation as ordered by the enforcement official. (g) Declaration of compliance. When the violation has been corrected and the penalty paid, the enforcement officer shall issue a letter which shall so state, and shall also record the date upon which the violation was fully corrected, beyond which no further penalty shall accrue. (h) Effect of unappealed notice and order. If a notice and order is not appealed, each day which the violation continues beyond the date set in order to correct shall constitute a misdemeanor punishable by a fine of up to $5,000 $1.000, or imprisonment for up to s* months ninety (90) days, or both. In addition to such criminal penalties, the city may enforce ORD # f)7-,9pD , PAGE 5 the notice and order in accordance with FWCC 1-20 and 1-21, and/or enforce it in superior court. (Ord. No. 99-342, ~ 3, 5-4-99) SECTION 3. Chapter 1, Article III, Section 1-18 ofthe Federal Way City Code is hereby amended to read as follows: 1-18 Voluntary correction agreement. (a) General. Prior to the issuance ofa notice and order under FWCC 1-17, or in lieu thereof, when the city determines that a violation of an ordinance has occurred, the city may enter into a voluntary correction agreement wherein the person(s) responsible for the violation or the owner(s) of property on which the violation has occurred or is occurring agrees to abate the violation within a specified time period and according to specified conditions. (b) Contents. A voluntary correction agreement shall be in writing, signed by the person(s) responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring and an enforcement official, and shall contain substantially the following information: (1) The name and address of the person responsible for the violation and/or the owner of property on which the violation has occurred or is occurring; (2) The street address or a description sufficient for identification ofthe building, structure, premises, or land upon or within which the violation has occurred or is occurnng; (3) A description of the violation and a reference to the regulation violated; (4) The necessary corrective action to be taken, and a date or time by which the correction must be completed; (5) An agreement by the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring that the city may ORD # 0;-51IJD , PAGE 6 inspect the premises as may be necessary to determine compliance with the voluntary correction agreement; (6) An agreement by the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring that, if the terms of the voluntary correction agreement are not met, the city may abate the violation and recover its costs and expenses as provided in this article; (7) An agreement that by entering into the voluntary correction agreement, the person responsible for the violation and/or the owner(s) of property on which the violation has occurred or is occurring waives the right to a hearing before the examiner under this article regarding the matter of the violation, penalty and/or required corrective action; and (8) A statement that failure to comply with the terms of the agreement shall constitute a misdemeanor punishable by a fine not to exceed $5,000 $1.000 and/or imprisonment for not more than six months ninety (90) days. (c) Modification and time extension. An extension of the time limit for correction or a modification ofthe required corrective action may be granted by the enforcement official if the person responsible for the violation has shown due diligence and/or substantial progress in correcting the violation but unforeseen circumstances render correction under the original conditions unattainable. All modifications or time extensions shall be in writing, signed by the person(s) responsible for the violation and/or the owner(s) ofthe property on which the violation has occurred or is occurring and an enforcement official. (d) Penalty for noncompliance. Violation of the terms of the agreement shall constitute a misdemeanor punishable by fine not to exceed $5,000 per day $1.000 and/or imprisonment for not more than six months ninety (90) days. Further, the city may enter the property, abate the violation and recover all costs and expenses of abatement in accordance with the provisions ofthis chapter. (Ord. No. 99-342, ~ 3, 5-4-99) ORD # 07....ShD , PAGE 7 SECTION 4. Chapter 1, Article III, Section 1-19 ofthe Federal Way City Code is hereby amended to read as follows: 1-19 Appeal to hearing examiner. (a) General. A person to whom an order to cease activity or a notice and order is directed may appeal the order to cease activity or notice and order to the hearing examiner. The person appealing may appeal either the determination that a violation exists, the amount of any monetary penalty imposed, the corrective action ordered, or all three. (b) How to appeal. A person may appeal an order to cease activity or notice and order by filing a written notice of appeal with the city clerk within 14 calendar days from the date of service ofthe order to cease activity or notice and order. The appeal must be accompanied by cash or a check, payable to the city of Federal Way, in the amount of $100.00, which is refundable in the event the appellant prevails on the appeal. (c) Effect of appeal. The timely filing of an appeal in compliance with this section shall stay the requirement for action specified in the notice and order that is the subject of the appeal. The monetary penalty for a continuing violation does not continue to accrue during the pendency of the appeal; however, the hearing examiner may impose a daily monetary penalty from the date of service of the order to cease activity or notice and order if he finds that the appeal is frivolous or intended solely to delay compliance. The effect of the filing of an appeal of an order to cease activity shall be as provided in FWCC 1-16( d). (d) Notice of and hearing before the hearing examiner. (1) Date of hearing. Within 10 days of the clerk's receipt ofthe appeal, the hearing examiner shall set a public hearing for a date within 30 days ofthe clerk's receipt of the appeal. ORD # 07.....5(po , PAGE 8 (2) Notice of hearing. a. Content. The clerk shall cause a notice of the appeal hearing to be posted on the property that is the subject ofthe order to cease activity or notice and order, and mailed to the appellant and property owners located within 300 feet ofthe property that is the subject of the violation. The notice shall contain the following: 1. The file number and a brief description of the matter being appealed. 2. A statement of the scope of the appeal, including a summary of the errors alleged and the findings and/or legal conclusions disputed in the appeal. 3. The date, term and place of the public hearing on the appeal. 4. A statement of who may participate in the appeal. 5. A statement of how to participate in the appeal. (3) Distribution. The notice shall be mailed and posted at least 10 calendar days before the hearing on the appeal. (4) Participation in the appeal. Any person may participate in the public hearing in either or both of the following ways: a. By submitting written comments to the hearing examiner, either by delivering these comments to the clerk prior to the hearing or by giving these directly to the hearing examiner at the hearing. b. By appearing in person, or through a representative, at the hearing and making oral comments directly to the hearing. The hearing examiner may reasonably limit the extent of oral comments to facilitate the orderly and timely conduct of the hearing. (5) Conduct of hearing. The hearing examiner shall conduct the hearing on the appeal pursuant to the rules of procedure ofthe hearing examiner. The city and the appellant may participate as parties in the hearing and each may call witnesses. The appellant shall have the burden of proof by a preponderance ofthe evidence that a violation has not occurred, that the amount of monetary penalty assessed was not in compliance with FWCC 1-17(e), or that the corrective action ordered is unnecessary to cure the violation. ORD #D1J~(PO , PAGE 9 (6) Electronic sound recording. The hearing examiner shall make a complete electronic sound recording of the public hearing. (7) Continuation of the hearing. The hearing examiner may continue the hearing if, for any reason, he or she is unable to hear all ofthe public comments on the matter or if the hearing examiner determines that he or she needs more information on the matter. If, during the hearing, the hearing examiner announces the time and place ofthe next hearing on the matter and a notice thereof is posted on the door ofthe hearing room, no further notice of that hearing need be given. (e) Decision of hearing examiner. (1) Vacation. If the hearing examiner determines that the appellant has proven by a preponderance of the evidence that no violation substantially as stated in the order to cease activity or notice and order has occurred, the hearing examiner shall vacate the order to cease activity or notice and order, and order the appeal fee refunded. (2) Affirmance. If the hearing examiner determines that the appellant has not so proven by a preponderance of the evidence, the hearing examiner shall affirm the order to cease activity or notice and order, shall affirm the amount of any monetary penalty imposed by the order to cease activity or notice and order, and shall affirm the corrective action ordered. (3) Modification. If the hearing examiner determines that the monetary penalty was not calculated in compliance with FWCC 1-17(e), or that the corrective action ordered was unnecessary to cure the violation the examiner may modify the penalty amount and/or the abatement action required depending on the specifics ofthe violation as found at the hearing. In so ordering, the hearing examiner shall consider the following: a. Whether the intent ofthe appeal was to delay compliance; b. Whether the appeal was friyolous; ORD # 61--S/PD ,PAGE 10 c. Whether there was a written contract or agreement with another party which specified the securing by the other party of the applicable permit or approval from the city; d. Whether the applicant exercised reasonable and timely effort to comply with the applicable development regulations; or e. Any other relevant factors. In modifying a monetary penalty under this section, the hearing examiner shall impose, at a minimum, the monetary penalty set forth in FWCC 1-17( e), for each separate section of the Code violated, and as determined by reference to the applicable number of violations (first, second, third) at issue. In modifying the corrective action ordered, the hearing examiner shall require, at a minimum, any action necessary to ensure actual compliance within 14 days of the date of the examiner's decision. (f) Issuance of decision. The hearing examiner shall issue a written decision, including findings of fact, conclusions, and order within 14 days of the hearing. (g) Judicial review. Judicial review of a decision by the hearing examiner may be sought by any person aggrieved or adversely affected by the decision, pursuant to the provisions of the Land Use Petition Act, Chapter 36.70C RCW, if applicable, or other applicable authority, if any, if the petition or complaint seeking review is filed and served on all parties within 21 days of the date ofthe decision. For purposes ofthis section, "aggrieved or adversely affected" shall have the meaning set forth in RCW 36.70C.060(2). (h) Effect of decision. If judicial review is not obtained, the decision ofthe hearing examiner shall constitute the final decision of the city, and the failure to comply with the decision of the hearing examiner shall constitute a misdemeanor punishable by a fine of not more than $5,000 $1.000 or up to six months ninety (90) days imprisonment, or both. In addition to criminal punishment pursuant to this subsection, the city may pursue collection and abatement under FWCC 1-20 and 1-21. (Ord. No. 99-342, ~ 3,5-4-99) ORD # ()1"'~~O , PAGE 11 SECTION 5. Chapter 1, Article III, Section 1-21 ofthe Federal Way City Code is hereby amended to read as follows: 1-21 Abatement and additional enforcement procedures. (a) Abatement by violator. In the absence of an appeal, any required abatement shall be executed in the manner and means specifically set forth in the order to correct and/or the voluntary correction agreement by the person(s) responsible for the violation. (b) Abatement by city. h The city may perform the abatement required upon noncompliance with the terms of: (1) An unappealed notice and order; (2) A voluntary correction agreement; or (3) A final order ofthe hearing examiner. ii. The costs shall be billed to the person(s) obligated to perform the work under FWCC 1-17(b)(6), the voluntary correction agreement or hearing examiner decision, as applicable. (1) The city may utilize city employees or a private contractor under city direction to accomplish the abatement. The city, its employees and agents using lawful means are expressly authorized to enter upon the property of the violator for such purposes. (2) The city shall bill its costs, including incidental expenses, of abating the violation to the person(s) obligated to perform the work under the notice and order, voluntary correction agreement or hearing examiner decision, which costs shall become due and payable 30 days after the date of the bill. The term "incidental expenses" shall include, but not be limited to, personnel costs, both direct and indirect, including attorney's fees incurred by the city; costs incurred in documenting the violation; the actual expenses and costs to the city in the preparation of notices, specifications and contracts, and in inspecting the work; and the cost of any required printing and mailing. ORD #07-5toD , PAGE 12 (c) Obstruction with work prohibited. No person shall obstruct, impede or interfere with the city, its employees or agents, or any person who owns, or holds any interest or estate in any property in the performance of any necessary act, preliminary or incidental to, carrying out the requirements of an order to correct, voluntary correction agreement or order ofthe hearing examiner issued pursuant to this chapter. A violation of this provision shall constitute a misdemeanor punishable by a fine of not more than $5,000 $1.000 per day or up to six months ninety (90) days imprisonment, or both. (d) Report to city council and hearing on cost of abatement. In the event the person( s) responsible fails to pay within the 30-day period set forth in subsection (b )(2) of this section, the enforcement official shall prepare a written itemized report to the city council showing the cost of abatement, including rehabilitation, demolition, restoration or repair of such property, including such salvage value relating thereto plus the amount of any outstanding penalties. (1) A copy ofthe report and a notice ofthe time and date when the report shall be heard by the city council shall be served on the person responsible for payment as provided in FWCC 1-17(b)( 6) at least five days prior to the hearing before the city council. (2) The city council shall review the report and such other information on the matter as it receives and deems relevant at the hearing. The city council shall confirm or revise the amounts in the report, authorize collection of that amount or, in the case of a debt owed by a property owner, authorize placement of an assessment lien on the property as provided herein. ( e) Assessment lien. Following the hearing and authorization by the city council, the city clerk shall certify to the county treasurer the confirmed amount. The county treasurer shall enter the amount of such assessment upon the tax rolls against the property for the current year and the same shall become a part of the general taxes for that year to be collected at the same time and with interest at such rates as provided in RCW 84.56.020, as now or hereafter amended, for delinquent taxes, and when collected to be deposited to the ORD #01 J S4>f) , PAGE 13 credit of the general fund of the city. The lien shall be of equal rank with the state, county and municipal taxes. (1) The validity of any assessment made under the provisions ofthis chapter shall not be contested in any action or proceeding unless the same is commenced within 15 calendar days after the assessment is placed upon the assessment roll. (f) Additional remedies. The provisions of this article may be used in lieu of or in addition to other enforcement provisions ofthis Code, unless otherwise precluded by law. (1) In addition to, or in lieu ofthe provisions ofthis chapter, the city may, at its option, turn the matter over to collection or commence a civil action in any court of competent jurisdiction to collect for any such charges incurred by the city, to obtain compliance pursuant to this chapter, and/or to collect any penalties that have been assessed. (2) The city may, at its option, seek injunctive or other civil relief in superior court regarding any Code violation. (Ord. No. 99-342, ~ 3, 5-4-99) SECTION 6. Chapter 22, Article I, Section 22-11 ofthe Federal Way City Code is hereby amended to read as follows: 22-11 Violation of this chapter. (a) Violations. It is unlawful for any person to do or cause any ofthe following to be done and for a property owner to permit any ofthe following to be done on his or her property contrary to or in violation of this chapter: (1) Construct, in any way alter, or move any improvement. (2) Engage in any activity. (3) Use or occupy any structure or land. (4) Conduct any use. (5) Create any conditions. ORD # IJ,--<:5itO , PAGE 14 It is also unlawful for any person to fail to perform any activity or obligation required by this chapter. Violations identified herein shall constitute misdemeanors subject to criminal prosecution, punishable as set forth herein. This chapter is also subject to civil enforcement, as set forth herein. (b) Criminal enforcement. Upon conviction of an unlawful act under or violation of this chapter, the property owner or other person may be punished by a fine of not more than $5,000 $1.000 or imprisoned for not more than six months ninety (90) days or both for each day or part of a day during which the unlawful act or violation occurs. The property owner or other person may also be ordered to discontinue the unlawful act or correct the violation. Criminal enforcement is in addition to, and does not limit any other forms of enforcement available to the city including, but not limited to, civil enforcement as specified herein or Chapter 1 FWCC, Article III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation of this chapter. (c) Civil enforcement. Civil enforcement of the provisions of this chapter and the terms and conditions of any permit or approval issued pursuant to this chapter shall be governed by Chapter 1 FWCC, Article III, Civil Enforcement of Code. Civil enforcement is in addition to, and does not limit any other forms of enforcement available to the city including, but not limited to, criminal sanctions as specified herein or Chapter 1 FWCC, Articles II, III, nuisance and injunction actions, or other civil or equitable actions to abate, discontinue, correct or discourage unlawful acts in violation ofthis chapter. (Ord. No. 90-43, ~ 2(175.45), 2-27-90; Ord. No. 99-342, ~ 5, 5-4-99) SECTION 7. Severability. The provisions ofthis ordinance are declared separate and severable. The invalidity of any clause, sentence, paragraph, subdivision, section, or portion of this ordinance or the invalidity of the application thereof to any person or circumstance, shall ORD # !J1-S&>O , PAGE 15 not affect the validity ofthe remainder of the ordinance, or the validity of its application to other persons or circumstances. SECTION 8. Ratification. Any and all acts consistent with the authority and prior to the effective date of this ordinance are hereby ratified and affirmed. SECTION 9. Effective Date. This ordinance shall take effect and be in force five days from its passage, approval and publication, as provided by law. PASSED by the City Council of the City of Federal Way this [0 day of ~ 2007. CITY OF FEDERAL WAY ATTEST: HATHAWAY, CMC APPROVED AS TO FORM: f~;;f ~ CITY ATTORNEY, PATRICIA RICHARDSON FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: K:\ORDIN\2007\Criminal penalty ch 1 and 22 080207,doc ORD # ()7-S~6 , PAGE 16