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HomeMy WebLinkAboutOrd 5537 01/17/2006 ORDINANCE NO. 5537 AN ORDINANCE AMENDING CHAPTER 8, ARTICLE XXI ADMINISTRATIVE ADJUDICATION SYSTEM, OF THE VILLAGE CODE OF THE VILLAGE OF MOUNT PROSPECT Passed and approved by the President and Board of Trustees the 17TH day of January, 2006 Published in pamphlet form by authority of the corporate authorities of the Village of Mount Prospect, Illinois, the 18th day of January, 2006 ORDINANCE NO. 5537 AN ORDINANCE ESTABLISHING CHAPTER 8, ARTICLE XXI, ADMINISTRATIVE ADJUDICATION SYSTEM, OF THE VILLAGE CODE OF THE VILLAGE OF MOUNT PROSPECT, ILLINOIS WHEREAS, the Illinois Legislature has, pursuant to the Illinois Municipal Code, 65 ILCS 5/1-2.1-1 et seq., authorized home rule municipalities to provide by ordinance for a system of administrative adjudication of municipal code violations to the extent permitted by the Illinois constitution, excluding a) proceedings not within the statutory or home rule authority of municipalities; b) any offense under the Illinois Vehicle Code, 6251LCS 5/1-100 et seq., or a similar offense that is a traffic regulation governing the movement of vehicles; and c) any reportable offense under Section 6-204 of the Illinois Vehicle Code, 625 ILCS 5/6-204; and WHEREAS, the Village of Mount Prospect is an Illinois Home Rule municipality; and WHEREAS, the Village Board of the Village of Mount Prospect is desirous of establishing a system of administrative adjudication pursuantto 651LCS 5/1-2.1-1, et seq., to adjudicate violations of the Mount Prospect Village Code; NOW, THEREFORE, BE IT ORDAINED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE OF MOUNT PROSPECT, COOK COUNTY, ILLINOIS, acting in the exercise of their home rule powers: SECTION 1. CHAPTER 8 OF THE MOUNT PROSPECT VILLAGE CODE, as amended, is further amended by adding a new Article XXI to Chapter 8, which shall be titled ARTICLE XXI, ADMINISTRATIVE ADJUDICATION SYSTEM, to be and read as follows: iManage 1130394 SECTION 8.2101: CREATION OF ADMINISTRATIVE ADJUDICATION SYSTEM: A. Pursuant to Division 2.1 of the Illinois Municipal Code, 65 ILCS 5/1-2.1-1, et seq., which authorizes municipalities to implement a system of administrative adjudication, there is created a system of administrative adjudication of charges of Code violations for the Village of Mount Prospect. The system will authorize an Administrative Law Judge to conduct adjudicatory hearings of cases instituted by Village Departments. B. The Village adopts Division 2.1 of the Illinois Municipal Code, 651LCS 5/1-2.1-1, et seq., as it may be amended from time to time. In the event of a conflict between said statutes and this Article, this Article shall prevail. C. The adoption of this Article does not preclude the Village from using other lawful methods to enforce the provisions of this Code. SECTION 8.2102: PURPOSE: The purpose of the Administrative Adjudication System of charges of Code violations is to provide a procedure by which charges of Code violations can be equitably and efficiently adjudicated administratively by an Administrative Law Judge. SECTION 8.2103: JURISDICTION: Those matters subject to the Administrative Adjudication System provided for by this Article are charges of violation of any regulation of the Village of Mount Prospect, so long as the relief sought is not a penalty of incarceration or a total fine in excess of $50,000, excluding allowable costs. The $50,000 limitation shall not apply to those cases brought to enforce the collection of any tax imposed and collected by the Village. SECTION 8.2104: ADMINISTRATIVE HEARINGS SUPERVISOR: There is hereby established the Office of Administrative Hearings. That Office shall be directed by an Administrative Hearings Supervisor, who shall be the Village Manager, or his/her designee. The Administrative Hearings Supervisor's function is to expedite the prosecution and/or correction of Code violations subject to the jurisdiction of the Administrative Adjudication System. The Administrative Hearings Supervisor is authorized to manage the administrative adjudication process in the manner provided for in this Article, which shall include determining the qualifications of Administrative Law Judges, appointing Administrative Law Judges, and establishing such rules and regulations, as may be necessary for the effective operation of the Administrative Adjudication System. The Village Manager may also appoint other persons to assist with the Administrative Adjudication System provided for in this Article. iManage 1130394 2 SECTION 8.2105: QUALIFICATIONS OF ADMINISTRATIVE LAW JUDGE Prior to conducting administrative adjudication proceedings under this Article, the Administrative Law Judges shall have successfully completed a formal training program that includes the following: a. Instruction on the rules of procedure of the administrative hearings over which the Administrative Law Judges shall preside; b. Orientation to each subject area of the code violations they will adjudicate; c. Observation of administrative hearings; and d. Participation in hypothetical cases, including ruling on evidence and issuing final orders. In addition, an Administrative Law Judge must be an attorney licensed to practice law in the State of Illinois for at least three (3) years, and be in good standing with the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois. An Administrative Law Judge may not be a resident of the Village of Mount Prospect. SECTION 8.2106: SCOPE OF AUTHORITY OF ADMINISTRATIVE LAW JUDGES: Administrative Law Judges shall preside over adjudicatory hearings. The authority of an Administrative Law Judge shall encompass all acts necessary to conduct fair and impartial adjudicatory hearings, including, but not limited to: A. Hearing testimony and accepting evidence that is relevant to the existence of the code violation. B. Administering oaths and affirmations to witnesses. C. At the request of any party or on the Administrative Law Judge's own motion, issuing subpoenas for the attendance of relevant witnesses and/or the production of relevant books, records, or other information. Subpoena issuance shall be at the discretion of the Administrative Law Judge, where it is determined that the requested witness or document is material to the defense of the allegations and does not constitute a needless presentation and that the elements of the defense sought to be proved could not otherwise be established without the production of the requested evidence. D. Preserving the record of the hearing, including all exhibits and evidence admitted into the record at the hearing. iManage 1130394 3 E. Issuing a determination based upon a review of the notice of violation, citation, other charging document (hereinafter, "charging document") and on the evidence admitted, which determination shall be final for purposes of judicial review under the Illinois Administrative Review Act. The determination shall be in writing, shall be signed by the Administrative Law Judge, shall be designated as findings(s), decision, and order, and shall include the fine, penalty or action with which the respondent must comply. F. Upon finding a respondent liable for violating one or more charged Code provisions: (1) Imposing penalties as provided by the governing penalty provision, except, however, that in no event shall an Administrative Law Judge have authority to (i) impose a penalty of incarceration, or (ii) impose a fine in excess of $50,000, excluding allowable costs. When applicable, each day a Code provision is found to have been violated by the respondent shall constitute a separate offense, and each separate offense subjects the respondent to the penalty provided by the governing penalty provision. (2) Imposing, in addition to fines, administrative and/or enforcement costs and, when applicable, imposing costs incurred by the Village for effecting compliance with Code provision(s) for which a respondent has been found liable. (3) Ordering, notwithstanding fines imposed or costs assessed, the respondent to comply with Code provision(s) found to have been violated, and, if appropriate, ordering the respondent to post a compliance bond as provided by Section 8.2111 (B)(1) (4) Ordering, regardless of fines imposed or costs assessed, the respondent to perform a term of community service. G. Adhering to the policies, procedures, and legislation set forth in the Village Code, except where discretion is specifically vested in the Administrative Law Judge. However, an Administrative Law Judge is authorized to waive the fine and/or costs that otherwise would be imposed upon finding a respondent liable for one or more Code violations when the Administrative Law Judge specifically finds as a matter of fact that the violation(s) occurred under such circumstances that, as a reasonable person, would constitute an excuse for the violation(s). H. Asking questions of the parties and witnesses, if necessary, to ensure the clarity and completeness of the testimony and the record. I. Regulating the course of the hearing in accordance with this Article, the rules adopted by the Administrative Hearings Supervisor for the conduct of administrative hearings, and other applicable law. iManage 113039 4 4 J. Hearings on appeals from the orders of the Director of Community Development. SECTION 8.2107: ADMINISTRATIVE HEARINGS: A. All administrative hearings conducted by an Administrative Law Judge are open to the public and shall be presided over by a duly appointed Administrative Law Judge who is charged with providing the parties a full and fair opportunity to be heard. B. The Village shall not be represented by an employee or other representative of the Office of Administrative Hearings. However, documentary evidence, prepared by another Department of the Village and submitted to the Administrative Law Judge, may be presented at the hearing by the Administrative Hearing Supervisor. C. All administrative hearings shall be conducted on the date set for hearing. In rare instances and for good cause shown, a continuance may be granted at the discretion of the Administrative Law Judge. The purpose of administrative hearings is to provide a prompt resolution of alleged Code violations. Accordingly, the request for, and the grant of, continuances shall be curtailed to the extent fairness permits. Lack of preparation shall not be grounds for a continuance. Continuances shall not be granted for more than two (2) months. D. The Administrative Law Judge may issue subpoenas. E. The formal and technical rules of evidence may be waived in the conduct of the hearing. Evidence, including hearsay, may be admitted only if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. F. The Administrative Law Judge shall permit persons to contest the merits of an alleged vehicular violation subject to the administrative adjudication procedures of this Article without attending a hearing. Any person, who wishes to contest a vehicular violation, must file a notarized statement of facts specifying grounds for contesting the violation notice, which must be filed with the Office of Administrative Hearings, postmarked within ten (10) days of the issuance of the notice of violation. The request shall be deemed filed, if postmarked by such due date. The submission of a notarized statement of facts is a waiver of the person's right to a personal appearance and the Administrative Law Judge will make his/her decision based upon the notarized statement of facts submitted by the person and the facts contained in the notice of violation(s). G. No violation may be established except upon proof by a preponderance of the evidence. However, the original or a legible copy of the charging document, issued in accordance with the applicable provisions of this Code, shall be prima facie evidence of the correctness of the facts specified in the document. iManage 1130394 5 H. The Administrative Hearings Supervisor shall determine the manner in which the record shall be preserved. Such preservation may be made by tape recording or other appropriate means. Recording by any means by any member of the public is prohibited unless expressly authorized by the Administrative Hearings Supervisor. The record of all hearings before an Administrative Law Judge shall include a copy of the findings, decision, and order of the Administrative Law Judge's final determination. I. At the conclusion of a hearing, the Administrative Law Judge shall issue his/her final determination. If the Administrative Law Judge issues a final determination of liability, he or she may impose fines, assess costs, and make orders, all as provided by Section 8.2106(F), and as are consistent with the specific Code provision(s) found to have been violated. J. At the conclusion of the hearing, the Administrative Law Judge shall inform the parties orally and in writing of his determination. Such determination shall constitute a final determination for purposes of judicial review and is subject to review under the Illinois Administrative Review Act. Based on the charging document and the evidence admitted, the Administrative Law Judge may issue the following determinations: liable, not liable, or liable upon a plea of no contest. The Administrative Law Judge also may dismiss the case with or without prejudice or grant a properly made motion by the Village voluntarily dismissing the case. SECTION 8.2108: PROCEDURE: All matters to be adjudicated by the Administrative Law Judge shall be commenced against the party alleged to have violated one or more Code provisions by issuing and serving upon that party a charging document and shall be conducted in accordance with the following procedures: A. The charging document shall be issued by a Village officer or employee authorized to exercise Code enforcement authority and served as provided for in Section 8.21 08(C). B. (1) Any charging document issued pursuant to this Section 8.2108 shall contain the following information: (a) The name; Village Department; position; and identification number, if applicable, of the person issuing the charging document; (b) The name and address of the person or entity being charged with one or more Code violations ("respondent"); (c) The name and address of the person to whom the charging document is given if that person is not the respondent; iManage 113039 4 6 (d) The section(s) of the Code alleged to have been violated; (e) The date, time, and place of the alleged violation(s); (f) A legally sufficient description of the activity or conduct alleged to constitute a violation of each Code section set forth in the charging document or a legally sufficient description of the facts giving rise to the allegations set forth in the charging document; (g) The complainant's name if the complainant is not the issuing Village officer or employee. The Village officer or employee shall certify the correctness of the information required by this Subsection 8.21 08(B)(1) by signing his/her name to the charging document to be issued. Compliance with this Subsection 8.21 08(B)(1) shall establish a prima facie case. (2) A charging document issued pursuant to Subsection 8.21 08(B)(1) also shall set forth (a) the date, time and place of the adjudicatory hearing to be held with respect to the violation(s) alleged in the charging document and (b) the legal authority and jurisdiction under which the hearing will be held. C. (1) The hearing shall be scheduled with reasonable promptness, provided that for hearings scheduled in all non-emergency situations, the respondent shall have at least 15 days after service of process to prepare for a hearing if requested by the respondent. For purposes of this subsection, "non-emergency situation" means any situation that does not reasonably constitute a threat to the public interest, safety or welfare. (2) The respondent named in a charging document shall be given notice of the date of the adjudicatory hearing which may appear on the face of the notice of violation, citation, or other charging document. Notice of the hearing date may be given in any of the following ways: (i) by first class mail or by overnight or two-day commercial delivery service at the respondent's last known address or if the respondent is a business entity, at any address identified for its registered agent or at its principal place of business; or, (ii) by personal service, (iii) by posting upon the property that is the site ofthe alleged violation(s) when the respondent is the owner or person in control of the property, or (iv) by any other means permitted by law for service of civil summons. (3) If service is provided by first class mail or by overnight or two-day commercial delivery service, the 15-day period shall begin to run on the day that the notice is deposited in the mail or given to the commercial delivery service, as applicable. iManage 1130394 7 D. The original or a legible copy of the notice of violation, citation, or other charging document shall be filed with the Office of Administrative Hearings as soon as practicable at the place and in the manner as the Administrative Hearings Supervisor directs. Upon receiving the original or legible copy of the charging document, the Administrative Hearings Supervisor shall select a hearing date and give respondent notice of the date, time, and place of the hearing in the manner set forth in Subsection 8.21 08(C), unless the charging document sets forth the date, time, and location of the hearing and was served on the respondent as provided in Subsection 8.21 08(C)(2). E. Parties to an adjudicatory hearing may be represented by an attorney, present witnesses, and cross-examine opposing witnesses. Parties may request the Administrative Law Judge to issue subpoenas according to the authority granted in Section 8.2106, paragraph C. SECTION 8.2109: REPRESENTATION AT HEARINGS: A. Village Representation: The case for the Village may be presented by a Village employee, or by an attorney designated by the Village Attorney, but not by an employee or other representative of the Office of Administrative Hearings except as allowed by Section 8.2107(B). B. Respondent Representation: The case forthe respondent may be presented by the respondent or by an attorney or agent of the respondent. An attorney or agent appearing at an adjudicatory hearing on behalf of a respondent shall present the Administrative Law Judge with a signed appearance form stating, on oath or affirmation, that he or she has been authorized by the respondent to represent the respondent at the hearing. SECTION 8.2110: DEFAULT: A. If at the time set for hearing, the respondent, or his/her attorney or agent of record, fails to appear, the Administrative Law Judge may enter a default judgment of liability against the respondent and impose fines and assess costs. A copy of the order of default shall be served in any manner permitted by this Article and applicable to the violation. The order shall advise the respondent of the procedure for setting aside the default judgment and shall also apprise the respondent of the availability of an appeal of the default judgment to the Circuit Court of Cook County. The default judgment shall be mailed promptly to the respondent as provided by Section 8.21 08(C)(1). The default judgment constitutes a final determination for purposes of judicial review and is subject to review under the Illinois Administrative Review Act. iManage 1130394 8 B. A respondent against whom a default judgment has been entered may file a motion with the Office of Administrative Hearings to set aside the default judgment and request a new hearing. A motion to set aside a default judgment may be filed at any time if the respondent alleges lack of subject matter or personal jurisdiction. In all other cases, the motion must be filed within 21 days of entry of the default judgment. A motion to set aside a default judgment shall set forth the reason(s) the respondent failed to appear on the original hearing date. The Administrative Law Judge shall hear and rule on the motion. If the Administrative Law Judge grants the motion, a hearing will be held immediately on the alleged Code violation(s) set forth in charging document unless the respondent requests another hearing date and presents good cause for continuing the hearing. C. If any default judgment is set aside pursuant to this Section 8.2110, the Administrative Law Judge shall have authority to enter an order extinguishing any lien which has been recorded for any debt due and owing the Village as a result of the vacated default judgment. SECTION 8.2111 FINES; COMPLIANCE BOND: A. All fines and other payments must be made within ten (10) calendar days. B. If the Administrative Law Judge issues an order of compliance, the Administrative Law Judge may order the respondent to post either a cash or other security bond to ensure respondent's timely compliance. Any non cash security bond shall name the Village as beneficiary and shall be in the amount specified by the Administrative Law Judge. Any bond issued as a result of an Administrative Law Judge's order is subject to review and approval by the Village Manager. If the respondent fails to timely remedy the Code violation(s) for which a bond has been issued and the Village undertakes remediation or otherwise expends funds related to the Code violation(s), the Administrative Law Judge, after giving the parties notice and opportunity to be heard, may issue an order permitting the Village to draw against the bond in an appropriate amount. The Administrative Law Judge shall order the bond amount, less the reasonable costs incurred by the Village, returned to the respondent upon proof of compliance. Upon failure to achieve compliance, the Administrative Law Judge shall, upon written petition of the Village, increase the assessed fine by 10% for each day beyond the original compliance date that compliance has not been achieved. C. Nothing in this Article shall prevent the Director from issuing citations which are payable to the Village without a hearing. However, in such instances the fine may not exceed the amount set forth in Division III of Appendix A. iManage 113039 4 9 SECTION 8.2112: ENFORCEMENT OF ADMINISTRATIVE LAW JUDGE'S ORDER: A. Any fine and any administrative, enforcement, or compliance costs imposed by an Administrative Law Judge's order that remain unpaid after the exhaustion of, or the failure to exhaust, judicial review procedures, unless stayed by a court of competent jurisdiction, shall be a debt due and owing the Village and may be collected in accordance with applicable law. B. After the expiration of the period for which judicial review may be sought, unless stayed by a court of competent jurisdiction, the determination of liability of an Administrative Law Judge may be enforced in the same manner as a judgment entered by a court of competent jurisdiction. At such time, the Administrative Hearings Supervisor shall send a notice of final determination of liability to respondent. C. Anyfine, penalty, and/or cost remaining unpaid after the notice offinal determination of liability is sent shall constitute a debt due and owing the Village. Failure of the respondent to pay such fine or penalty within fourteen (14) days of the notice may result in a lien against the respondent's property (and foreclosure of such a lien) or such other remedies as may be available by law, including the denial of the issuance or renewal of licenses or permits pursuant to Article XXII of this Chapter 8. D. In any case in which a respondent fails to comply with an Administrative Law Judge's order to correct a Code violation, any expenses incurred by the Village to enforce the Administrative Law Judge's order, including but not limited to attorney's fees, court costs and costs related to property demolition or foreclosure, shall be a debt due and owing the Village. Prior to any expenses being fixed by an Administrative Law Judge pursuant to this Subsection 8.2112(D), the respondent shall be provided with notice that directs the respondent to appear at a hearing before an Administrative Law Judge to determine whether the respondent has failed to comply with the Administrative Law Judge's order. The notice shall set the place and the time for the hearing, which shall not be less than seven days from the date the notice is served. Notice may be served by first class mail or by an overnight or 2-day commercial delivery service and the seven-day period shall begin to run on the date that the notice was personally served, deposited in the mail or placed with the overnight or commercial delivery service. E. Nothing in this Section shall prevent the Village from enforcing or seeking to enforce any order of an Administrative Law Judge in any manner provided by law. SECTION 8.2113: ELECTION OF REMEDIES: In no case may an Administrative Law Judge conduct an adjudicatory hearing for an alleged Code violation where the remedy is a punishment of imprisonment. iManage 1130394 10 Nothing in this Article, however, shall preclude the Village from petitioning a court of competent jurisdiction to adjudicate any ordinance violation or an ordinance violation, which provides the remedy of imprisonment, or from petitioning a court of competent jurisdiction to impose the remedy of imprisonment for failure to comply with an order of an Administrative Law Judge. SECTION 2: That all ordinances or parts of ordinances in conflict herewith are hereby repealed. SECTION 3: That this Ordinance shall be in full force and effect from and after its passage, approval and publication in pamphlet form in the manner provided by law. AYES: Corcoran, Hoefert, Lohrstorfer, Skowron, Zadel NAYS: None ABSENT: Korn PASSED and APPROVED this 1 ih day of January, 2006. ~ h: tV~ Irv a K. Wilks, Mayor ATTEST: ~~,*f?2 H :\CLKO\files\ WI N\ORD I NAN C\Administrative adj udication ord i nancesjan2006 DOC iManage 1130394 11