- Definitions - KRS 65.8805
- Objective of Code Enforcement
- Initiation Enforcement
- Fundamentals of Inspection
- Issuing a Citation
- Preparing the Case for Presentation
In order to enforce its codes and ordinances through the code enforcement board process, a city must, among other things, establish a code enforcement board (CEB), set forth hearing procedures, determine penalties for code violations, and amend its existing ordinances accordingly. Another very important aspect, the importance of which cannot be overlooked, is the appointment of one or more qualified code enforcement officers (CEO).
The CEO is the one individual in the entire process that has contact with the public on a daily basis. This individual is entrusted with the authority and discretion to cite private citizens for violations that must later be proven in an open hearing to the CEB. It is critical that the person or persons appointed to fill that role, be of the mindset and temperament to enforce a city’s ordinances in a competent and fair manner. The task of prosecuting private citizens for ordinance violations is difficult enough without having to deal with issues of competency and fairness on the part of your CEO. This section will set forth the job description of a CEO, who may hold this position, and what can and should be expected of such an individual in the performance of his or her job.
Code Enforcement Officer. According to KRS 65.8805, code enforcement officer means “a city police officer, safety officer, citation officer, county police officer, sheriff, deputy sheriff, university police officer, airport police officer, or other public law enforcement officer with the authority to issue a citation.”
This definition gives cities the flexibility and authority to assign the duties of a CEO to current employees or to create specific positions of employment for the enforcement of their codes. Because their jobs place them in contact with the general public, police officers or citation officers would be well suited to serve in the capacity of a CEO.
Additionally, as police and citation officers are already charged with enforcing state and
local laws, performing the duties of a CEO would seem to dovetail with their present
responsibilities. Dealing with the public on a daily basis, issuing citations for violations of
the law, and working to see those violations prosecuted in a court of law gives a police or citation officer much experience with the duties of a CEO.
There may be reasons, however, that a city may wish to assign the duties of a CEO to a specific individual. For instance, if a city decides to use the code board process to enforce only its existing housing code, having a single individual dedicated to the position would almost certainly increase the level of expertise that person would obtain. A person spending all of his or her time learning and enforcing a city’s code, as well as becoming more and more familiar with the public and the types of problems that need to be addressed, will soon become an expert in the area of code enforcement.
having trained police officers spend a portion of their day enforcing ordinance violations
as opposed to enforcing criminal statutes may not be the most effective use of their
workday. That is not to say local ordinances are not important, it just may be a situation where the police officer simply does not have the time to adequately do both. From a public relations standpoint it may not be a wise move either. The public would probably prefer to see their police officers out “fighting crime” and putting criminals in jail instead of citing people for what they may consider less compelling violations. Therefore, before a decision is made as to how the position should be filled and who should fill it, each city should examine their needs and expectations regarding the code enforcement process and then make a final decision.
Ordinance. KRS 65.8805 defines ordinance as “an official action of a local government body, which is a regulation of a general and permanent nature and enforceable as a local law and shall include any provision of a code of ordinances adopted by a local government which embodies all or part of an ordinance.”
Ordinarily, when one thinks of code enforcement, building code violations, blighted properties, and eyesores are what come to mind. However, because the Local Government Code Enforcement Board Act (the “Act”) gives cities the authority to enforce “any ordinance” through this process, there is no reason to limit enforcement proceedings to these types of violations. Failure to pay permit fees and local taxes, animal control, and parking violations are examples of the types of ordinances, in addition to the ones previously mentioned, that may be enforced using this method.
Code enforcement today addresses a wide range of issues which affect our environment, health, safety, property values, and general well being. Community preservation and improvement are now recognized by government leaders as necessary to halt or reverse the deterioration of our surroundings.
The objective of code enforcement is to obtain voluntary compliance. Prosecuting a code violation is the least efficient way to guarantee an improved community. Therefore, education and guidance are the primary services rendered by a CEO. Punitive action should only be taken as a last resort, and then only with reason and restraint.
The inspection and enforcement process should be focused on assisting the violator to come into compliance with the law. On many occasions, because the local regulations may be complex, violations may be unintentional as opposed to deliberate. It is in these situations where a CEO’s discretion in whether or not to issue a citation will come into play. If a violation was clearly unintentional and is quickly remedied by the violator, then it may be in the best interest of all concerned to simply issue a Notice of Violation, give the person an adequate opportunity to correct the violation and proceed on without imposing any penalty. Repeated and deliberate violations should be of more concern to a CEO and should, of course, be prosecuted vigorously.
The types of code enforcement which is commonly practiced in other states is not inexpensive, but the benefits to the community represent tax dollars well spent. Code enforcement programs achieve not only their primary goals of improved health, safety and welfare of the community, but are utilized to enhance other programs and efforts such as historic preservation, rehabilitation and revitalization.
In order to establish an efficient system of code enforcement, a CEO should operate under set guidelines for the receipt of complaints, investigation and inspection procedures, and citation issuance. Absent a formalized system for handling code enforcement, there is a possibility the system will breakdown - CEO’s may not conduct their investigations in an efficient manner, complaints may go unanswered, some individuals may be prosecuted while others go untouched, and penalties may be unevenly imposed. This increases the chances a court would throw out rulings by the code enforcement board based on arbitrary or selective prosecution.
The following are recommended ways of handling the enforcement process. Of course as you begin enforcing your codes you will undoubtedly discover more practical and efficient ways of dealing with certain issues than are set out here. Therefore, you should expect to change and improve on these guidelines as you gain experience in the process.
In order to make enforcement proceedings more efficient and consistent, guidelines or procedures should be established for the resolution of complaints. This will allow CEO’s, CEB members, city officials, and city employees to know exactly how the process works. All interested parties will know how a complaint is initiated, who initiates it, who is responsible for what, and what the stages of the enforcement process are. In essence, everyone from the city will be operating from the same page.
Receipt of Complaints. In addition to regular inspections, the receipt of complaints will be a common method of becoming aware of code violations. In fact, once it becomes publicly known that the city will be “taking care” of dilapidated buildings, junk cars, and all other eyesores in the community, your CEO may become inundated with complaints. Most will be serious complaints made in good faith, while others may be nothing more than a personal vendetta against a neighbor. In order to limit the number of less serious complaints, it would be helpful if a policy were established that no investigation will be conducted unless a signed, written request or complaint is filed with the CEO. It may also help to make “knowingly filing a false complaint” a code violation punishable by fine. When complaints or requests for investigations are received, the local government should have a policy as to how to handle them.
- When the complaint is received a cursory determination of whether or not to
proceed with a full fledged investigation should be made. This could be based on
experience of the CEO or by the history of the individual making the complaint.
Over time it will become apparent that there are certain individuals in the community
who tend to make numerous, unsubstantiated complaints. These should be
disposed of in quick fashion. However, when a CEO has this amount of discretion,
there is a danger of complaints falling through the cracks or of an inconsistent
application of the enforcement process. There should be a system of checks to
guarantee that all complaints are looked at seriously and fairly.
- In order to guarantee this consistency, a simple tracking system for complaints received should be put into place. When a complaint is received, a written record should be established and a case number assigned. The record would not have to be an elaborate description of the complaint. It should contain the complaint itself and a few notes from the CEO indicating what action, if any, was taken. Any notes made should be initialed and dated. If no action was taken on the complaint and the file was closed, there is now a written reason as to why. If an investigation and citation followed, there is a case number that allows it to be tracked at all stages and a written record that could be offered as proof at the hearing.
Complaint Priority Levels. In order to streamline the investigation process, certain response priorities should be established. Categories of violations should be created based on seriousness, number of occurrences, and time of occurrence. Obviously, if a situation arose whereby the health and safety of the general public was in danger, immediate action must be taken. It would be unwise to proceed as normal and investigate the situation in a routine manner. Additionally, if a violation has occurred, it is much easier to investigate and prosecute if action were taken as soon as practical after the violation becomes known. Otherwise evidence becomes stale and other duties soon take precedence.
Definitions of Conditions
- Existing. An act or condition that is presently occurring that is harmful to persons or property; completed illegal structures; evidence of blight conditions (visual blight, offensive odor, or unlawful noise); or other conditions or situations that are in violation of local ordinances.
- In-Progress. An act or condition recently initiated that is harmful to persons or properties; illegal structures during the construction phase; the initiation of blight conditions; or other in-progress violations.
- Imminent. An illegal activity which is predictably about to happen based on physical evidence or other information gathered by the CEO.
- Potential. A possibility that an illegal act will result.
Prioritization. Of course each local government will have to set it own priorities when determining what types of ordinances to enforce, how strictly they will be construed, and the speed at which action will be taken. Each community has its individual problems and goals and that, as much as anything, will govern how code violations will be addressed.
However, a system should be put into place as to how to respond to these situations. A differentiation between “existing” and “in-progress” needs to be made. Existing violations require a response, but the priority of response may not be as urgent as an item in-progress. Items in-progress usually denote a situation that will get worse if not corrected. Relative hardship as well as the need to minimize damages come into play for violations in-progress.
“Imminent” and “potential” are similar in that the violation is yet to have happened, but an imminent violation would require a quicker response time because it is almost certain to occur while a potential violation may not. Additionally, “imminent” violations should be divided into two separate categories:
- imminent, but not life threatening and
- imminent and life threatening.
Based on those distinctions, the CEO will be in the position to take the correct action in the most timely fashion. For example, it may be imminent that an individual will park in a “no parking” zone, it is not imminent, however, that lives will be threatened as a result. On the other hand, if an individual is preparing to unlawfully burn his trash near a large quantity of flammable liquids, a violation is imminent and lives are threatened. In that case immediate action is needed.
KRS 65.8838 of the Act states that a local government may take immediate action to remedy a violation of its ordinances when there is reason to believe that the existence of the violation presents a serious threat to the public health, safety, and welfare, or if in the absence of immediate action, the effects of the violation will be irreparable or irreversible. Therefore, if a situation such as that arose, a city could take quick, immediate action without going through the normal enforcement process.
Again, when establishing the goals of your city’s code enforcement program, make sure a criteria of what ordinances are to be enforced, as well as the relative importance of each type of violation is set out. This will not only improve the program’s efficiency, but the overall results of the program as well.
Prelude to Inspection.
- Understand the objective of code enforcement. As we’ve discussed, the goal is to ensure compliance with all applicable codes. The CEO should try and work with the public to assist them in complying with the law. It is much easier to prevent a violation from occurring than it is to investigate and prosecute one.
- Set your priorities. Understand your city’s goals. Concentrate your efforts on the main problem areas of your community. If your city has a problem with junk vehicles do not waste your time writing parking tickets. In fact, it would be a good idea before you write your first citation to set down with the mayor, council, and department heads of city government to establish a list of the most pressing problems that should be addressed first. Then you will know which areas to focus your attention and avoid areas that require less consideration.
- Personal preparation. As a CEO you should be familiar with all ordinances that you will be charged with enforcing. Obviously, at first you will not have the desired level of expertise, but with enough time you should become proficient in all aspects of your code. Again, this will increase your efficiency and allow you to accomplish more in a shorter amount of time.
- Personal appearance. As a representative of a governmental agency it is important to project a certain image. Because you are in a position of “authority” and responsible for citing individuals for violations of local ordinances it is important that you receive a certain amount of respect. Ordering someone to clean up their yard or getting permission to enter a person’s home for inspection is much easier if you have the appearance of someone who is competent and in charge. Therefore, if possible, it is advisable to wear a uniform. If not, always be neat, clean, conservative in dress, and presentable.
- Proper equipment. An inspection can not be done properly without the required equipment. When making inspections always take your code book, forms, hard hat, camera (video or still camera - preferably both), measuring wheel, and whatever else you might need. Additionally, it is important to always carry proper identification. You will have a much easier time gaining access to an individual’s property if you can demonstrate that you are an official of the city conducting an investigation instead of a stranger snooping around their property.
- Schedule. Set appointments and inspection routes to make the best use of your available time and to minimize travel and distance from point to point. Gaining quick access to an individual’s property and minimizing wasted trips will greatly increase your efficiency.
In order to make the inspection process as efficient and comprehensive as possible, it is best to set out procedures to follow and then, of course, to follow those procedures. Items to include would be methods of detecting violations; complaint evaluation; site inspection; evidence gathering; enforcement strategy; and follow-up.
Detecting Violations. Discovering or detecting code violations may be accomplished in several ways.
- Complaints. The CEO may receive complaints from any source and should always investigate them unless it can be determined from the complainant’s description that no violation exists. The ability to make this determination will come with time and experience. Until that time, however, it would be advisable to at least make a cursory investigation into all complaints.
- Inspector observation. The most common way of discovering violations is through observation of the CEO on regular area patrol or while visiting sites of other reported violations.
- Targeting. Depending upon the goals of your city’s enforcement program, certain geographical areas or types of violations may be designated or targeted for close inspection.
- Referrals. Referrals or tips from other city employees may be used to good effect. Field staff (meter readers, sanitation workers, police and fire personnel) can be trained to observe and report violations to the CEO.
- Public involvement. This would be similar to the referral system just mentioned. In order to build support for the concept of code enforcement, a local government should try and encourage public involvement through tips and referrals and in letting the city know what are the most critical problems that need to be addressed first. In that way, the public will more likely support the program than if they were completely left out of the process.
Complaint Evaluation. Upon receipt by the CEO, complaints should be reviewed and evaluated. If referral to another agency or department is more appropriate, the complainant should be advised. Even if a complaint is referred to another department within the city, a written record should be kept noting the complaint and the referral. This will protect the CEO from charges of neglect or selective prosecution.
Site Inspection. The CEO may observe the site conditions from outside the property and determine if a violation is visible. At that point, the CEO may attempt to make contact with the owner or occupant to gather more information, make further investigation and , if necessary, issue a citation.
Evidence Gathering. Usually to make an adequate inspection, the CEO will have to enter the individual’s property. Therefore, you should be aware of your rights of entry as determined by law and your own city attorney. First, make contact with the occupant of the property, identify yourself and provide proper identification. Explain the reason for your visit and the necessity of entrance upon the property. If the reported violation is not visible from off the property, ask for permission to inspect. If possible, have the individual sign a form giving you permission to come on the property and make an inspection. (See the copy of Consent of Inspect form in Chapter 8). If the owner or occupant refuses your entrance upon the property then leave. Do not force your way onto a piece of property or otherwise cause a disturbance.
After your inspection, make notes of any conversations or observations you may have had. These notes should be made as soon after the inspection as is practicable. This will improve accuracy and can be used for future reference to confirm any agreements with the violator regarding what is required to comply with the law. In your notes always include the date of inspection, violation, suggested action to be taken, and any consequences for non-compliance.
In order to “bolster” your case, during the inspection you should take photographs if possible. Polaroids, 35 mm, or video are all acceptable. As the saying goes, “a picture is sometimes worth a thousand words.” During the process of prosecuting a case, you will sometimes get into a “swearing match” with the violator. He or she will categorically deny any violation, making it their word against your word. This places the code enforcement board in a difficult situation, unless you have photographs or video of the violation. As long as you can show that the photographs or video were of the actual violation and were taken on the date the citation was issued you will have a much stronger case. To do this, all photos should be dated and signed as to location and violation. You may need to experiment to determine which format (video, still camera, etc.) is appropriate for your duties.
Neighbors can be an excellent source of information, particularly for intermittent illegal activity, where the reported activity or violation may not be occurring at the time of the initial inspection.
Implementation of Enforcement Strategy. Consider the circumstances and the conditions on the property in order to pursue the most appropriate enforcement procedure. Internal procedures may allow a certain amount of time to be provided to the violator in order to remedy the problem without fine or punishment. Initial verbal contact, formal notice and warning procedures may be used to remedy the situation without resorting to a full fledged prosecution.
Follow-Up. In order to determine compliance with previous warnings and formal notices, a final inspection or follow-up should be conducted with the owner or occupant of the property. Follow-up should be done on a regular basis and documented for potential prosecution. After the final inspection, if compliance is confirmed, document and report results and close the case.
According to KRS 65.8825, enforcement proceedings before a code enforcement board may only be initiated by the issuance of a citation by a CEO. Such enforcement actions may not be instigated by personal requests of the mayor or council, by a citizen’s letter or petition, or at the behest of the code enforcement board itself. Only the CEO may issue a citation or a notice of violation.
The CEO is only authorized to issue a citation of a violation of a local ordinance if he or she has reasonable cause to believe, based on personal observation or investigation, that a violation of a local government ordinance has been committed. That means that a CEO must do an inspection of the property in question or personally investigate the facts of a particular situation before a citation may be issued. Of course, the CEO may conduct an investigation upon the filing of a citizen’s complaint or at the request of the mayor, but he or she does not necessarily have to issue a citation.
If the CEO finds numerous violations, the CEO should apply the same procedure of documentation for each violation. Additionally, the CEO should cite all of the violations, not just one. The city may always “drop” the most minor violations if the violator agrees to remedy the most serious one. The violator will be much more likely to “negotiate” if there are several violations hanging over his head as opposed to just one. Also, if the CEO observes other possible violations outside the scope of his expertise, the CEO should coordinate his investigation with that of other CEO’s or individuals with the required expertise.
If the local government chooses, it may, in lieu of immediately issuing a citation, give a notice or warning to the individual that there is a violation. This written notice should give the violator a specified period of time to remedy or correct the violation. If the violator fails or refuses to remedy the violation within the time specified, the CEO could then issue a citation. This is known as a “Notice of Violation” or “NOV”.
The use of this warning system is purely discretionary on the part of the local government; it is not required. However, if the goal of the city is compliance and the elimination of public nuisances and eyesores, it can be the most effective way of dealing with those problems. It is always better to have a violator voluntarily correct a problem than to take them before the CEB. It is quicker and cheaper. The CEO must be strict with the issuance of NOV’s, in that if a certain amount of time is given to remedy a problem and it is not corrected, a citation must be issued. If a CEO makes it a habit of letting the NOV’s slide along with no follow-up citation, then the process loses credibility and enforcement becomes that much more difficult. On the other hand, once it becomes known that the city is serious about enforcing its codes and will pursue appropriate penalties and fines, an issuance of a NOV will get the attention of a violator and will usually get results.
If a local government does choose to issue NOV’s and allow violators to correct the problem without a citation, a specific amount of time must be set forth to remedy the violation. The NOV should not give a violator a “reasonable” amount of time, because there is no rule defining a “reasonable time.” Reasonable time will vary depending on the facts of the case. For instance, mowing a yard would take very little time, but tearing down a dilapidated structure would take much longer. The city may choose to set different time limits depending upon the violation, it may simply choose to set a single time limit to cover all violations, or it could give the CEO the discretion to set the time frame depending upon the specific case. It is also recommended that the violator be required to notify the CEO to verify the violator’s compliance with the NOV. If the CEO is not notified of the compliance, then a citation will be issued. This places the burden on the alleged violator to show compliance. It also eases the administrative burden on the CEO with regard to re-inspections to verify compliance.
Additionally, the city may authorize the granting of extensions of time that are set forth in the NOV. If, at the end of the time period set forth in the NOV, the CEO feels that the violator has commenced good faith actions and activities to correct the problem, the CEO can deliver additional time extensions. Any time extensions should be in writing and should contain language that states that the granting of the extension should in no way be deemed by the city as a waiver or release of the violation. This prevents a violator from successfully claiming that a CEO “told” him he could have some extra time. If you want to prove it in court you should get it in writing or take a picture of it. Otherwise, it is your word against their word.
Citation Form. Both the NOV and the citation issued by the CEO must be in a form prescribed by the local government. According to KRS 65.8825(3), the citation must contain, in addition to any other information required by ordinance or rule of the CEB:
- The date and time of issuance;
- The name and address of the person to whom the citation is issued;
- The date and time the offense was committed;
- The facts constituting the offense;
- The section of the code or the number of the ordinance violated;
- The name of the code enforcement officer;
- The civil fine that will be imposed for the violation if the person does not contest the violation;
- The maximum civil fine that may be imposed if the person elects to contest the citation;
- The procedure for the person to follow in order to pay the civil fine or to contest the citation; and
- A statement that if the person fails to pay the civil fine set forth in the citation or contest the citation, within the time allowed, the person shall be deemed to have waived the right to a hearing before the code enforcement board to contest the citation and that the determination that a violation was committed shall be final.
After filling out the citation, the original should be placed in the case file along with any contemporaneous notes concerning conversations or agreements with the violator. A copy of the citation should be given to the violator. Additionally, after issuing the citation to an alleged violator, the CEO must notify the CEB by delivering a copy of the citation to the administrative official designated by ordinance or the board to receive such citations. Although it is not required, after an NOV is issued to a violator it should be delivered to the CEB as well. This will allow the CEO to have a file when the history of the violator started with the CEB.
Service of Process. In order to guarantee that all individuals charged with violating an ordinance are put on notice and are made aware of the consequences, certain procedures for notification should be followed. This is known as service of process. If the individual can show that he was never notified or made aware of what was going on, there is a good chance that the city would be prevented from prosecuting his violation. If at all possible, the NOV, citation, and every other document required by its terms to be served should be hand-delivered to the violator.
Unfortunately, the actual violator may not be located to receive documents. In that case, other individuals may be served and the violator is considered to have been put on notice of the citation, hearing, or other official action. To complete service of process, either on the violator himself or other persons who may legally accept such service, the following procedures should be adhered to:
- Service may be accomplished by personal delivery or by certified mail, return receipt requested, or by leaving the notice at the person’s usual place of residence with any individual residing therein who is eighteen (18) years of age or older and who is informed of the contents of the documents. Service may also be accomplished by delivering the documents to an agent authorized by appointment or by law to receive such service of process for that individual.
- If acceptance of the documents are refused, service is still good if the documents were simply offered to that person. Refusal to accept service should be noted on the return receipt.
- Service can not be made upon an unmarried infant under the age of eighteen (18) or upon a person of unsound mind.
- Service may be made upon a partnership or unincorporated association subject to suit under a common name by serving a manager or managing agent of the partnership or an officer or managing agent of the association, or an agent authorized by appointment or by law to receive service on its behalf.
- Service shall be made upon a corporation by serving an officer or managing agent thereof, or any other agent authorized by appointment or by law to receive service on its behalf.
- Service may be made upon an individual out of this state, other than an unmarried infant, a person of unsound mind or a prisoner, by certified mail, personal delivery of the document by a person over the age of eighteen (18) years of age, or by other methods allowed by law. Proof of service may be made either by the return receipt or by affidavit of the person making such service, upon or attached to a copy of the document, stating the time and place of service and the fact that the individual served was personally known to the person making service.
- Service may be made upon a nonresident individual who transacts business through an office or agency in this state, or a resident individual who transacts business through an office or agency in any action growing out of or connected with the business of such office or agency, by serving the person in charge.
- In a action against a person whose name is unknown, the person shall be described in the documents as “unknown party.” If the person’s name or place of residence is discovered pending the action, then the documents shall be amended accordingly.
With service by certified mail, return receipt requested, attach the “green card” receipt with the original paperwork. If the green card is not returned, then the CEO may not have proper service on the violator. The green card is proof that service was made on the alleged violator.
Request for Hearing. According to KRS 65.8825(5) of the Act, after a citation has been issued the person to whom the citation is issued must respond to the citation within seven (7) days of the date the citation is issued. The violator may either pay the civil fine set forth in the citation or request, in writing, a hearing before the CEB to contest the violation. The citation form itself should contain instructions informing the violator of his right to request a hearing. Additionally, it should be made clear that the request for a hearing should be made directly to the CEB and not the CEO. In this way, the CEO is protected if the hearing does not get scheduled exactly as it should. The CEO can not be accused of “sitting” on a request while the time limit runs out.
If the person fails to respond to the citation by requesting a hearing within the seven (7) day time limit, the person shall be deemed to have waived the right to a hearing to contest the citation. At that point, the determination that a violation was committed shall be considered final and non-appealable. If the violator does not request a hearing, the CEB must enter a final order determining that the violation was committed and impose the civil fine that was set forth in the citation.
The Act allows the city attorney to either present the case to the CEB or to act as an advisor to the board during hearings. It is, of course, up to each individual city to determine how best to prosecute its code violations. However, because the hearing process is very informal, we believe that the CEO is the more appropriate party to present cases to the CEB. The experience and knowledge of the city attorney could then be used to advise the CEB during the hearing. The city attorney could give advice concerning such issues as procedural due process, evidentiary matters, and hearing formalities.
There is one instance, however, where the city attorney should present the case before the CEB. That is in those instances when the alleged violator is represented by an attorney. Although most code violations will be fairly straightforward, there will be cases that involve complex fact situations or large monetary penalties. As a result, the alleged violator may retain the services of an attorney. Therefore, in order to protect the city’s interests and “level the playing field,” the violations should be prosecuted by the city attorney. This would prevent the opposing attorney from taking advantage of the CEO or disrupting the proceedings through legal maneuvers.
After the investigation is complete, the citation has been issued, and the hearing has been scheduled, the CEO must now present the case to the CEB for adjudication. The burden is on the CEO to demonstrate and prove that a violation of a local ordinance took place. Because of that, the CEO must be prepared to present his case in an orderly, convincing and complete fashion. Prior to presenting the case to the CEB, the CEO should prepare and accomplish the following:
CASE REPORT. In preparation of his case, a CEO should put together a short narrative report setting out the main points and most critical pieces of information about the case. This does not have to be a long, detailed document. It is simply a reference tool that can be used by both the CEO and the CEB during the hearing. This report should contain:
- Date the complaint was received
- Nature of the complaint
- What the investigation disclosed
- Type(s) of violations, including specific references the ordinances or code provisions alleged to have been violated
- Any contact CEO had with violator; include dates, time, and any notices sent by certified mail or hand delivered to violator
- Other attempts to resolve the violation (e.g., Notices of Violation, time extensions, etc. ) and the results of these efforts
Citations/Notice of Violation. The CEO should compile all of the Citations and NOV’s that were issued to the alleged violator along with all “green cards” demonstrating service. They should be in the correct sequence from date of issuance for ease of reference. Photographs/Video. Put together a folder with all pertinent photographs. All photos should include on their back:
Day of week
Time (AM or PM)
Location (street address or description)
If photo is to be introduced and was taken by someone other than CEO, attach an affidavit from photographer attesting to it’s authenticity
Appropriate Codes. Provide a copy of all ordinances that have been violated with all pertinent sections highlighted.
Other Appropriate Documents. Any letters or other correspondence with the violator that is pertinent to the case should be included.
Qualification Form. The CEO should prepare a form setting forth his qualifications. It should include at a minimum: name, position/title, length of time employed by city, length of time in current position, prior relevant experience, education and special training, if any.
Authentication. Any documents that will be offered to the CEB must be properly authenticated. If the documents or photos are ones that the CEO prepared personally, then authentication can be accomplished through his testimony. However, if the documents were prepared by another individual, that person must either testify that they prepared the document or the CEO must offer proof that the documents are authentic, usually through an affidavit of the person who prepared the document.
Testimony. Without a “prosecutor,” the CEO has the burden of presenting the case against the alleged violator. The CEO must offer the testimony and present the evidence without benefit of the usual question-and-answer approach used when a prosecuting attorney is involved. Therefore, the CEO should take special care to make sure that all of the elements of the violation are presented to the CEB in a coherent and believable fashion.
In order to have the presentation go as smoothly as possible, the CEO should prepare his testimony ahead of time. Go over what needs to be brought to the attention of the CEB. Review all citations, NOV’s, photos, ordinances, letters, and any other documents in order to “refresh your recollection” of the events surrounding the issuance of the citation(s). Meet with witnesses and make sure that everyone is operating off of the same page. Don’t try to “wing it.” Preparation is the key.
The following is a checklist of the information that the CEO should introduce through his testimony at the hearing.
- Identification. Name and governmental employer.
- Background and experience. Information that is contained on “Qualification Form.”
- Violation. Information contained in “Case Report.” Explain thoroughly the connection of the alleged violator to the violation itself.
- Action of the CEO. What did the CEO do in this process? Inspection of property, conversation with violator, advice to violator on corrective action, took photographs, issued NOV and citation.
- Introduce Evidence. Photographs, video, or other witnesses.
Finally, it is critical that the CEO be truthful when testifying before the CEB. Aside from the legal consequences of lying under oath, the entire process of code enforcement would be jeopardized by a CEO who perjures himself trying to win a “conviction.” If the violation can not be proven, then so be it. Move on to the next case.
Re-inspection. Before the CEO is ready to present the case to the CEB, he should make one final inspection. If the violation is still ongoing, pictures should be taken. This will be further proof that the violator has not taken the situation seriously and has made no attempt to correct the problem. Additionally, the CEO should offer proof (if available) of repeat violations. Again, the CEB should have less patience with an individual who has previously been cited for the same violation.