RULES OF THE CITY OF PORTLAND CODE HEARINGS OFFICER
Administrative Rules Adopted by Auditor's Office Pursuant to Rulemaking Authority
(a) These rules may be referred to and cited as the Rules of the City of Portland Code Hearings Officer.
(b) As used in these rules:
(1) "City Code" means the Code of the City of Portland.
(2) "Hearings Officer" means the Code Hearings Officer created by Title 22 of the City Code.
(3) "Office of the Hearings Officer" means those clerical, administrative and ministerial personnel designated as such by the Hearings Officer.
(4) "Initiating bureau" means the bureau filing the complaint in the proceeding.
(5) "Party" means a person who is a party to the proceeding and is entitled to fully participate in the proceeding, unless such rights are waived. Parties include:
A. The City of Portland, through the initiating bureau;
B. The named respondent(s);
C. Tenants, residents, and lessees of the affected dwelling units in proceedings subject to rule 5; and
D. Any other persons with an interest in the proceedings who has requested and been granted party status by the Hearings Officer pursuant to Rule 9.
(6) "Limited Party" means a person, not a party, with a limited interest in the proceeding or an interest in only one or more matters or areas which are the subject of the proceeding, who has requested and been granted limited party status by the Hearings Officer pursuant to Rule 9 and is entitled to participate in the proceedings in the manner or area(s) specified by the Hearings Officer.
(c) The Hearings Officer may suspend or modify any of these rules when necessary to prevent manifest injustice or extreme prejudice to any party.
(d) In the event of any conflict between these rules and the City Code, the provisions of the City Code shall prevail.
(a) Pleadings shall consist of the complaint only unless the Hearings Office directs an answer. Except as may be stipulated or admitted in an answer or at hearing, all allegations of the complaint will be deemed to be denied.
(b) The complaint shall be in substantially the form set forth in Appendix A. The complaint shall contain a brief and plain statement of the alleged facts constituting the violation together with a reference to the specific Code section or sections involved, and a brief and plain statement of the relief requested, including the amount of the proposed or requested civil penalty if any.
(1) The complaint may be amended at any time prior to the date set for hearing by filing such amended complaint with the Office of the Hearings Officer and delivering a copy thereof to the respondent(s) and all other parties. Thereafter, a complaint may be amended only with the consent of all other parties appearing or of the Hearings Officer. If the Hearings Officer allows the complaint to be amended, the Hearings Officer may do so upon such terms and conditions, including postponing or continuing the hearing, as are necessary or appropriate to prevent undue prejudice to the interests of any party.
(2) When issues not raised by the complaint (or answer, if applicable) are raised at hearing by the parties without objection, they shall be treated in all respects as if raised in the pleadings. Upon motion to the Hearings Officer, any party may amend its pleadings to conform to the evidence and to reflect the issues so raised.
(3) If evidence is objected to at the time of hearing on that grounds that it is not within the issues raised in the pleadings, the Hearings Officer may allow the pleadings to be amended and shall do so freely when the merits of the action or defense will be served thereby and the objecting party fails to satisfy the Hearings Officer that the admission of such evidence would prejudice such party in maintaining such party’s defense on the merits. The Hearings Officer may grant a continuance to enable the objecting party to meet such evidence.
(d) Motions may be made in writing at any time or orally, on the record at hearing or at any conference. Written motions shall be mailed or otherwise delivered to all other parties.
3. SETTING OF HEARINGS
(a) Except as set forth below, the time and date of all hearings shall be set by the Office of the Hearings Officer prior to or at the time the Complaint is filed.
(b) The Office of the Hearings Officer may designate certain times for hearing routine or uncomplicated matters. The initiating Bureau or Bureaus may schedule such matters for these designated times prior to the filing of the complaint and without prior consultation with the Office of the Hearings Officer, In all cases so scheduled:
(1) The setting of such hearings shall be a representation by the initiating Bureau that time requested for such hearings shall not exceed the allotted time.
(2) The complaint shall be filed with the Office of the Hearings Officer and served on the respondent(s) at least seven days prior to the date set for hearing.
4. NOTICE TO RESPONDENTS
Named respondents shall be served in the manner set forth in Section 22.03.020 of the City Code at least seven days prior to the date set for hearing, provided however, the Hearings Officer may, upon application of the initiating bureau, set a shorter time when it appears the alleged violation presents an imminent or immediate danger to the health, safety, or welfare of the public or of any person such as will not admit delay.
5. NOTICE TO OTHER PARTIES
(a) In all cases where the relief requested includes vacation or demolition of occupied residential property, the tenants, residents and lessees of the affected dwelling units shall be parties to the proceeding and shall be given notice of hearing as specified in Rule 6(c)(1).
(b) In all cases involving occupied residential property in which the relief requested by the complaint does not include vacation or demolition of the property, but, during the course of the proceeding, the Hearings Officer determines that an order for such vacation or demolition of any dwelling unit is a reasonably possible outcome of the proceedings, the Hearings Officer shall continue the hearing and cause the tenants, residents and lessees of the affected dwelling units to be given notice of the hearing and of the fact that vacation or demolition is a reasonably possible outcome of the proceeding. Such notice shall be given in as specified in Rule 6(c)(1) or in any other manner reasonably likely to notify the affected parties of the proceeding.
(c) Such parties shall be given notice at least five days prior to the time set for hearing or any continuance thereof, as the case may be; provided however the Hearings Officer may, on his own motion or upon the application of any party, set a shorter time when it appears the alleged violation presents an imminent or immediate danger to the health, safety or welfare of the public or any person such as will not admit delay.
6. NOTICE TO INTERESTED PERSONS
(a) In proceedings involving alleged Code violations involving the use, occupancy or condition of real property, the owner(s) of the property and tenants, residents, and lessees of the affected dwelling units involved, if any, shall be deemed interested persons and shall be given notice of hearing as provided in this rule.
(b) (1) Notice shall be given the owner(s) by either of the following means:
A. Personal service upon the owner(s), or
B. (i) Posting notice of hearing at or near the principal entrance to the structure involved or at any other conspicuous location on the real property and
(ii) mailing notice of hearing, postage prepaid, to the owner(s) or the owner(s) agent, directed to such owner(s) last known address as it appears in the most recent assessment roll of the county in which the property is located.
(2) Notice shall be given to any other person known or reasonably believed to have or claim a legal or equitable ownership interest in the property if the address of such person is known. In proceedings involving leased or rented non-residential real property, the lessee(s) shall be given notice if the address of such person is known.
(3) In the case of property held as tenancy in common, joint tenancy, or tenancy by the entirety, notice to any one or more of the tenants in common, joint tenants, or tenants by the entirety is sufficient.
(c) (1) Notice shall be given to tenants, residents, and lessees of residential property by any of the following means:
A. personal service upon one or more occupants of each affected dwelling unit, or
B. Posting notice of hearing at or near the principal entrance to each affected dwelling unit, or
C. Mailing notice of hearing, postage prepaid, addressed to the occupant or resident of each affected dwelling unit.
(2) In structures containing four or fewer affected dwelling units, notice shall be affected by either personal service or by both posting and mailing as specified above.
(3) "Affected dwelling unit’ means a dwelling unit known to the initiating Bureau:
A. which contains an alleged Code violation or in which a Code violation is alleged to have occurred, or
B. which has had or may have its safety or habitability substantially adversely affected by an alleged Code violation or by any proposed or likely order of the Hearings Officer.
(4) The initiating Bureau may apply to the Hearings Officer for waiver or modification of the notice to owner(s), tenants, residents, and lessees. The Hearings Officer shall grant such request for waiver or modification only if it clearly appears that:
A. The proposed method of notice is as likely or more likely to provide timely and adequate notice as are the methods specified in these rules, or
B. The results of the hearing will not substantially adversely affect any of the rights or interests of such persons, or
C. The alleged violation(s) present an imminent or immediate danger to the health, safety, or welfare of the public or to any person so as will not permit delay and service of notice, as provided by these Rules, cannot be accomplished in the time available. In such cases the Hearings Officer shall require the initiating bureau to provide such notice, if any, as is reasonably practical under the circumstances, including but not limited to oral notice in person or by telephone.
(d) If the proceeding arises out of or as a result of a citizen complaint to the initiating bureau, and the citizen has not requested confidentiality, such citizen(s) shall be given notice personally or by mailing a copy of such notice postage paid and addressed to such person’s last known address.
(e) Interested persons shall be served at least five days prior to the time set for hearing, provided however, the Hearings Officer may, upon application of the initiating bureau, set a shorter time when it appears that the alleged violation presents an imminent danger to the health, safety or welfare of the public such as will not admit delay.
7. RETURN OF SERVICE.
Prior to commencement of the hearing, the initiating bureau shall file with the Office of the Hearings Officer, a return of service substantially in the form of Appendix B, certifying that the respondents, parties, and interested persons have been given appropriate notice of the hearing as required in these rules.
(a) A party shall appear by:
(1) Appearing personally or by an attorney at the place and time set for hearing and/or continuance thereof, or
(2) Filing a written appearance with the Office of the Hearings Officer. Such written appearances need to contain only a statement that such party appears together with the name and address of the party and the name and address of the party’s attorney, if any.
(b) A party who fails to appear shall be deemed to have waived all right of further notice concerning the proceeding.
9. REQUEST TO PARTICIPATE AS PARTY, LIMITED PARTY
(a) After initiation of a proceeding, a person who has a personal or public interest in the outcome of the hearing shall be given an opportunity to participate as a party or a limited party.
(b) Except as set forth in subsection (3) below, any person requesting party or limited party status shall appear at the time set for hearing or any continuance thereof and set forth such person’s request for party or limited party status on the record. In requesting party or limited party status, such person shall show:
(1) If seeking party or limited party status to protect an alleged personal interest, such person’s interest, economic or otherwise, and how the result of the hearing may affect such interest.
(2) If seeking party or limited party status to represent an alleged public interest, the nature of the alleged public interest, how such interest may be affected by the results of the hearing and such person’s qualifications to represent such public interest.
(3) Why the existing parties, including the City, may not adequately represent the interest identified in subsections b (1) and b (2) above.
(c) In lieu of or in addition to appearing at the time set for hearing, a party seeking party or limited party status may file a petition with the Office of the Hearings Officer requesting party or limited party status. Such petition shall include a statement of the matters set forth in subsections b(1), b(2) and b(3) above and, in addition, shall set forth petitioner’s name and address and the name and address of petitioner’s attorney, if any, and of any organization petitioner represents. Such petition must be filed with the Office of the Hearings Officer not later than the time set for hearing.
(d) If a person is granted party or limited party status, the Hearings Officer may postpone or continue a hearing to a later date. If it appears that commencing or continuing the hearing on the date set would jeopardize or unduly burden one or more of the parties in the proceeding.
(e) The Hearings Officer will grant the request for party or limited party status if the Hearings Officer determines:
(1) Such person has demonstrated a personal or public interest which reasonably could be affected by the outcome of the hearing, and
(2) Such person’s interest is not, in the Hearings Officer’s opinion, adequately represented by existing parties, and if appropriate,
(3) Such person is qualified to represent the public interest.
(f) In granting limited party status, the Hearings Officer shall set forth the area(s) and/or manner of participation.
(g) The Hearing Officer’s ruling on a petition for party or limited party status shall be on the record at or immediately prior to hearing.
10. POSTPONEMENTS, CONTINUANCES, CONFERENCES AND RECESSES
(1) Any party desiring a postponement of a hearing shall promptly, upon receipt of a notice of hearing or as soon thereafter as possible, submit a written request to the Hearings Officer, detailing the reason for the request. The Hearings Officer shall grant such request for good cause shown unless it appears that the public safety, health or welfare or the interests of a party would be prejudiced or endangered by such a postponement. The Hearings Officer may grant a postponement upon such terms and conditions as appears necessary or appropriate to protect the public health, safety, or welfare or to avoid serious detriment to any party.
(2) Postponements shall be granted upon the agreement of all parties if no previous postponement has occurred.
(b) Continuances: If, on the motion of any party or upon the Hearings Officer’s own motion, it appears further testimony, evidence or argument should be received, the Hearings Officer may, at the Hearing Officer’s discretion, continue the hearing. The time and date of such continued hearing may be fixed at the time of hearing or by later written notice to the parties.
(c) Conferences and Recesses: In any proceeding, the Hearings Officer may, at the Hearings Officer’s discretion, call the parties together before the hearing for a conference in order to ascertain what is disputed, hear argument upon motions or resolve procedural matters. At any time during the hearing, the Hearings Officer may recess the hearing in order to conduct such a conference. All such conferences shall be open to the public. The results of any such conference shall be summarized upon the record.
11. CONDUCT OF HEARINGS
(a) The hearing shall be conducted by and shall be under the control of the Hearings Officer. At the discretion of the Hearings Officer, the hearing shall be conducted in the following manner:
(1) The Hearings Officer may open the hearing with a brief introduction of the parties, issues and procedures.
(2) Each party shall be given an opportunity to make an opening statement.
(3) The initiating bureau shall present evidence in support of the allegations contained in the complaint and in support of the relief requested.
(4) The respondent(s) shall present evidence in support of their positions.
(5) Other parties including those with limited party status, may present evidence in support of their respective positions.
(6) Each party shall have the right to cross examination of adverse witness.
(7) The parties may present rebuttal evidence, if any.
(8) Each party shall be given an opportunity to make a closing statement.
(9) The Hearings Officer shall have the right to question any witnesses.
(b) The burden of presenting evidence to support a fact or proposition rests on the proponent of that fact or proposition.
(c) The Hearings Officer may set reasonable time limits for oral presentation and testimony and shall exclude or limit cumulative, repetitious, or immaterial. matter.
12. RULES OF EVIDENCE
(a) All evidence of the type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs will be admissible.
(b) Irrelevant, immaterial or unduly repetitious evidence shall be excluded.
(c) All offered evidence, not objected to, will be received, subject to the Hearings Officer’s power to exclude irrelevant or unduly repetitious matters or material.
(d) Evidence objected to may be taken by the Hearings Officer. Rulings on admissibility or exclusion will be made at hearing or at the time the order is issued.
All testimony given at the hearing shall be under oath or affirmation. The oath or affirmation may be administered by the Hearings Officer or by any other person authorized to administer oaths and affirmations under state law.
Exhibits shall be marked upon receipt and the marking shall indicate the party offering the exhibits. The exhibits shall be preserved as a part of the record of the proceeding.
The parties to a proceeding may agree upon some or all of the facts involved in the proceeding. Such stipulation shall either be in writing and subscribed by the parties or be made at hearing and on the record. The stipulation shall be binding upon the parties who agree to it and may be regarded and used as evidence at the hearing.
16. EX PARTE COMMUNICATIONS
The Hearings Officer shall place on the record a statement of the substance of any written or oral ex parte communications on a fact at issue made to the Hearing’s Officer while the proceeding is pending. All parties appearing at hearing shall be given notice of such ex parte communications and of their right to rebut the substance of the ex parte communication on the record.
17. CIVIL PENALTIES: MITIGATING AND AGGRAVATING FACTORS: SUSPENDED PENALTIES
(a) In establishing the amount of a civil penalty to be assessed, the Hearings Officer may consider the following factors and shall cite those found applicable:
(1) Whether the respondent has committed any prior City Code violation, regardless of whether any administrative, civil, or criminal proceeding was commenced therefore.
(2) The history of the respondent in taking all feasible steps or procedures necessary or appropriate to correct the violation.
(3) The economic and financial conditions of the respondent.
(4) The gravity and magnitude of the violation.
(5) Whether the violation was repeated or continuous.
(6) Whether the violation was due to unavoidable accident or other conditions or circumstances beyond the respondent’s reasonable control, or negligence, or an intentional act of respondent.
(7) The opportunity and degree of difficulty to correct the violation.
(8) The economic or financial benefit accrued or likely to accrue to respondent as a result of the violation.
(9) The respondent’s cooperativeness and efforts to correct the violation for which the penalty is to be assessed.
(10) The cost to the City of investigation and correction or attempted correction of the violation.
(11) Any other relevant factors.
(b) At hearing, the burden of proof and the burden of coming forward with evidence regarding respondent’s economic and financial condition shall be upon the respondent. In the absence of such showing by the respondent(s), the Hearings Officer may presume that the economic and financial condition of the respondent is such as would support the imposition of any civil penalty permitted by law.
(c) All or any portion of any civil penalty imposed may be suspended upon such terms and conditions as the Hearings Officer may determine, including, but not limited to, that the respondent(s) comply with all orders of the Hearings Officer, including payment of any unsuspended portion of the civil penalty or penalties and/or that the respondent(s) not commit, suffer or permit any additional City Code violations for a designated period of time, or to exceed one year.
(d) Civil penalties for violations occurring prior to filing the complaint shall not exceed the amount requested in the complaint or amended complaint. This shall not limit the authority of the Hearings Officer to assess greater or additional civil penalties for continuing violations in conjunction with a corrective or continuing order, provided that such order provides that if the violation or violations are corrected or cease as required by the order and the order otherwise complied with, such additional or greater penalty will be suspended or eliminated.
18. CONTINUING ORDERS
(a) If, after hearing, the Hearings Officer determines that the respondent(s), or any of them, have violated any provision of the City Code and that the violation or violations are continuing, the Hearings Officer may enter a continuing order and continue the proceeding to a later date.
(b) The continuing order shall be in writing and shall conform in all particulars to a final order. The continuing order may order any of the remedies authorized by Section 22.05.010 of the City Code necessary or appropriate to correct the violation. In addition, the continuing order may provide that, in the event the party or parties found in violation correct, remedy, or eliminate the violation or violations in the manner and within the time or times specified by the Hearings Officer in the continuing order;
(1) The proceeding will be dismissed, or
(2) Any civil penalty imposed will be suspended, reduced, or eliminated.
(c) (1) At the time set for continuances, the Hearings Officer may hold a hearing to determine whether the terms of the continuing order have been or are being completed with.
(2) If it is determined that the continuing order has been or is being substantially complied with in all its particulars, and the continuing orders so provides, the Hearings Officer shall enter a final order dismissing the proceeding or suspending, reducing, or eliminating the civil penalty, as specified in the continuing order.
(3) If it is determined that the continuing order has not been or is not being substantially complied within all its particulars, the Hearings Officer may, in the Hearings Officer’s discretion.
A. modify the continuing order and continue the matter to a later date, or,
B. vacate the continuing order, enter a new continuing order or continue the matter to a later date, or
C. enter a final order.
(d) Any continuing order may be amended at any time prior to entry of a final order upon the motion of a party and for good cause shown. Good cause shall include, but is not limited to, a showing that a party found in violation is unable to correct the violation and comply with the terms of the continuing order despite all reasonable diligence for reasons beyond such party’s reasonable control.
19. PROPOSED AND FINAL ORDERS.
(a) Proposed and Final Orders shall be in writing and include the following:
(1) Rulings on admissibility of evidence which were not made on the record during the hearings.
(2) Findings of Facts: Those matters which are either agreed by the parties or are determined by the Hearings Officer on substantial evidence.
(3) Conclusions of Law: Applications of the controlling law to the facts found and the legal conclusions arising therefrom.
(4) An Order, which shall set forth the actions to be taken as a result of the Findings of Fact and Conclusions of Law.
(5) A Notice that the Final Order may be appealed, and a reference to the ordinance under which it may be appealed or reviewed.
(6) At the discretion of the Hearings Officer, an opinion explaining the rationale for the Findings of Fact or Conclusions of Law.
(b) Rulings on evidence, findings of fact, and conclusions of law made in prior written orders or on the record at hearing may be incorporated by reference in a proposed and final order.
(c) Parties, who have not previously waived their right to notice, shall be served with a copy of the proposed and final order. Such parties may file written exceptions to the proposed and final order, which exceptions must be filed within ten days of the date of service of such order.
(d) A proposed order shall become a final order ten days after the date of service of the proposed order unless the proposed order otherwise provides. The proposed order may not provide a period less than ten days unless the Hearings Officer determines that the health, safety or welfare of the public or any person requires a shorter period.
(e) A proposed order may be withdrawn at any time before it becomes a final order.
20. PAYMENT OF AND LIEN FOR CIVIL PENALTIES
(a) Civil Penalties shall be due and payable by the party or parties found liable for the same at such time as specified in the order.
(b) Whenever a civil penalty may be made a lien upon real property, unless paid as specified in subsection 1 above, the Hearings Officer shall certify the amount to the City Auditor in the form set forth in Appendix C.
21. ASSESSMENTS OF COSTS INCURRED
(a) Whenever, as may be authorized by the City Code, the City shall incur any costs pursuant to Section 22.06.010 of the City Code, the Bureau incurring such costs shall prepare a statement of costs in substantially the form set forth in Appendix D, which shall be served upon the owner(s) of the real property involved, personally or by registered or certified mail, return receipt requested. A copy of such form, with proof of service attached, shall be filed with the Office of the Hearings Officer. If the statement is served by mail, it shall be deemed served three days after mailing. If no objection is received within fifteen days from the date of service, the Hearings Officer shall certify such statement and forward it to the City Auditor.
(b) An owner may object to such statement by filing a written objection to such statement with the Office of the Hearings Officer within fifteen days after service. If such statement is received, the Hearings Officer shall set a hearing to hear and determine the objections.
If, after hearing, the Hearings Officer determines that such statement, or any portion of it, is correct and proper, the Hearings Officer shall certify the statement, or so much of it as is found correct and proper, and forward it to the City Auditor.
22. PREPARTION AND CERTIFICATION OF THE RECORD
(a) Any party desiring preparation and certification of the record or any portion thereof for the purposes of appeal or review shall file with the Office of the Hearings Officer a written statement requesting preparation and certification of the record and designating those portions of the record requested. Unless otherwise provided pursuant to Section 22.03.050(g) of the City Code, such statement shall be accompanied by a cash deposit in the amount of estimated cost of preparing the record or those portions requested, including the cost of transcribing the record of testimony, if necessary.
(b) Upon receipt of the statement and the cash deposit, the Office of the Hearings Officer will prepare the record or the designated portions thereof. If the cash deposit exceeds the actual cost of preparing the record, the record shall be certified and the excess refunded. If the actual cost of preparing the record exceeds the amount of the cash deposit, the party requesting preparation of the record shall be notified of the deficiency and, upon payment of the same, the record shall be certified.
Filed for inclusion in PPD September 22, 2004.