§ 26-33. Procedure; hearings.

(a)

An alleged violation of any of the codes or ordinances set forth in section 26-32 shall be filed with the special master by the administrative official, or his designee, who bears the responsibility for enforcement of that respective code or ordinance. If a violation of a code or ordinance is believed to have occurred or to exist, the official, or his designee, shall notify the violator and give such violator a reasonable time to correct the violation. Should the violation continue beyond the time specified for correction, the administrative official or his designee shall notify the special master of the name and address of the violator, the Code provision involved, and provide a short factual statement which forms the basis for the belief that a violation exists. The special master shall schedule a hearing and shall provide written notice of such hearing to the violator by hand delivery or by mail, as provided in section 26-36. At the option of the special master, notice may additionally be served by publication or posting as provided in section 26-36. If the violation is corrected and then recurs, or if the violation is not corrected by the time specified for correction by the code inspector, the case may be presented to the special master even if the violation has been corrected prior to the hearing, and the notice shall so state. If the code inspector has reason to believe a violation or the condition causing the violation presents a serious threat to the public health, safety and welfare, or if the violation is irreparable or irreversible in nature, the code inspector shall make a reasonable effort to notify the violator and may immediately notify the special master and request a hearing. Alternatively, the city may make all reasonable repairs which are required to bring the property into compliance and charge the owner with the reasonable cost of the repairs, along with the fine imposed pursuant to this section. Making such repairs does not create a continuing obligation on the part of the city to make further repairs or to maintain the property and does not create any liability against the city for any damages to the property if such repairs were made in good faith. A repeat violation is defined as a violation of a provision of a code or ordinance by a person who has been previously found, through a code enforcement board or any other quasi-judicial or judicial process, to have violated or has admitted violating, the same provision five years prior to the violation, notwithstanding that the violations occurred at different locations. If a repeat violation is found, the code inspector shall notify the violator but is not required to give the violator a reasonable time to correct the violation. The code inspector, upon notifying the violator of a repeat violation, shall notify the special master and request a hearing. The special master shall schedule a hearing and shall provide notice pursuant to section 26-36. The case may be presented to the special master even if the repeat violation has been corrected prior to the hearing, and the notice shall so state.

(b)

At the hearing, the burden of proof shall be upon the city to show by a preponderance of the evidence that a violation did occur or does exist, or been repeated. Assuming proper notice of hearing has been given to the violator, either as actual notice, or as provided in this article, a hearing may proceed in the absence of the violator.

(c)

All testimony shall be under oath and shall be recorded. The formal rules of evidence shall not apply, but fundamental due process shall be observed and shall govern the proceedings. All relevant evidence shall be admitted if the special master finds that it is the type of evidence upon which reasonable persons would normally rely. The special master may exclude irrelevant, immaterial and unduly repetitious evidence. Documentary and physical evidence may be admitted.

(d)

The special master may inquire of any witness who gives testimony. The violator, or his attorney, and the city attorney or his designee shall be permitted to inquire of any witness before the special master. The special master may call any witness deemed necessary to provide a full and fair hearing of the case.

(e)

At the conclusion of the hearing, the special master shall issue findings of fact based on evidence in the record and conclusions of law, and shall issue an order affording the proper relief consistent with the powers granted in this article. The order shall be stated orally at the meeting, and shall be reduced to writing and mailed to the alleged violator within ten working days after the hearing. The order may include a notice that it must be complied with by a specified date and that a fine, as well as the cost of repairs as provided in section 26-35, may be imposed if the order is not complied with by such date. In addition, a certificate of use, as defined in chapter 22, may be revoked, suspended or denied pursuant to section 22-39, and a revocation or suspension of a sidewalk cafe permit, as defined in chapter 78, may be reviewed pursuant to section 78-348. A certified copy of such order may be recorded in the public records of the county and shall constitute notice to any subsequent purchasers, successors in interest, or assigns if the violation concerns real property, and the findings therein shall be binding upon the violator and, if the violation concerns real property, any subsequent purchasers or successors in interest or assigns.

(f)

If the owner of property which is subject to an enforcement proceeding before the special master transfers ownership of such property between the time the initial pleading was served and the time of the hearing, such owner shall:

(1)

Disclose in writing the existence and the nature of the proceeding to the prospective transferee.

(2)

Deliver to the prospective transferee a copy of the pleadings, notices, and other materials relating to the code enforcement proceeding received by the transferor.

(3)

Disclose, in writing, to the prospective transferee that the new owner will be responsible for compliance with the applicable code and with orders issued in the code enforcement proceeding.

(4)

File a notice with the code enforcement official of the transfer of the property, with the identity and address of the new owner and copies of the disclosures made to the new owner, within five days after the date of the transfer.

A failure to make the disclosures described in subsections (f)(1), (2) and (3) of this section before the transfer creates a rebuttable presumption of fraud. If the property is transferred before the hearing, the proceeding shall not be dismissed, but the new owner shall be provided a reasonable period of time to correct the violation before the hearing is held.

(Code 1979, § 2-171)