HB4461 H PS AM 2-15

    Delegates Lawrence and Manchin move to amend the bill on page 1, line 21, by striking everything after the enacting section and inserting in lieu thereof the following:

“ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED     RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND     MUNICIPAL OFFICERS AND EMPLOYEES; SUITS AGAINST  MUNICIPALITIES.

§8-12-14a. Enforcement of External Sanitation and Common Nuisance Violations.

    (a) The purpose of this section is to provide additional and alternative methods and processes to enforce municipal code provisions regarding exterior sanitation and common nuisances related to property located within a municipality in a fair, speedy and inexpensive manner and to improve compliance with these provisions.

    (b) This section is in addition to those methods and processes otherwise contained state or any municipal code and shall be applied at the discretion of the enforcement official enforcing the provisions of this section.

    (c) This section applies to the following exterior sanitation and common nuisance violations contained in a Building Code and Zoning Ordinance including:

    (1) Sanitation;

    (2) Drainage;

    (3) Sidewalks in disrepair;

    (4) High weeds, grass or both;

    (5) Graffiti;

    (6) Exterior garbage accumulation;

    (7) Open storage in residential districts;

    (8) Nonresident recreational vehicles.

    (d) All planning, zoning, building and law-enforcement officers may enforce the provisions of this section and shall be referred to herein collectively as enforcement officials.

    (e) Upon receipt of information or observation of circumstances indicating the likelihood of a violation of an ordinance regarding external sanitation or common nuisance, the enforcement official shall investigate the facts and may, to the extent permitted by law, make an inspection of the premises.

    (f) If an enforcement official determines that a code violation exists, the enforcement official shall provide written notice of the violation to the person having either ownership or control, such as a tenant having possession and maintenance responsibility under a lease agreement. of any land, building, structure, sign, property, licensed or permitted business or operation which is in violation, and shall order that the violation be corrected. Notice of the violation shall be served in accordance with the law of the State of West Virginia concerning service of process in civil actions, except that a method of service effectuated by a mailing by the clerk of a court (e.g., service pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D)) shall be deemed to be effectuated by a mailing by an enforcement official. If service is made by certified mail pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D) and delivery of the notice of the violation is refused, the enforcement official, promptly upon receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the notice of violation and a notice that despite such refusal, the notice of the violation is valid and the municipality will proceed to enforce it; so long as such first class mailing is not returned as undeliverable, service will be conclusively presumed to have been effectuated. Proof of service shall be made at the time of service by a written declaration, under oath, executed by the enforcement official effecting service and shall declare the time, date and manner by which service was made.

    (g) Any notice of violation under this section shall be in writing and shall contain the following:

    (1) The date the notice of violation is given;

    (2) The name and address of the person(s) charged with the violation;

    (3) The section of the ordinance being violated;

    (4) The nature of the violation;

    (5) A statement of the action required to be taken in order to correct the violation;

    (6) The time period allowed for the violation to be corrected prior to issuance of a citation. The time period allowed shall take into consideration the threat posed by the violation to the health, safety and welfare of the public and the nature of the work required to correct the violation: Provided, That no such time period for correction shall be less than ten days;

    (7) The maximum fines that may be assessed if the violation is not corrected; and

    (8) The name, address and telephone number of the enforcement official.

    (h) If the violation has not been corrected within the period established in the notice of violation, the enforcement official may issue a citation to the violator. A citation shall be in writing and shall contain the following:

    (1) The date the citation is issued;

    (2) The name and address of the person(s) charged with the violation;

    (3) The section of the ordinance that has been violated;

    (4) The nature of the violation;

    (5) The place and time the violation occurred;

    (6) The date the notice of violation was given;

    (7) The amount of the fine imposed for the violation;

    (8) The name, address, and telephone number of the enforcement official issuing the citation; and

    (9) The name, address and telephone number of the office, where fines are to be paid, and of the municipal court, where citations may be appealed.

    (i) A citation shall be served accordance with the law of the law of the State of West Virginia concerning the service of process in civil actions, except that a method of service effectuated by a mailing by the clerk of a court (e.g., service pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D)) shall be deemed to be effectuated by a mailing by an enforcement official. If service is made by certified mail pursuant to West Virginia Rule of Civil Procedure 4(d)(1)(D) and delivery of the citation is refused, the enforcement official, promptly upon receipt of the notice of such refusal, shall mail to the person or entity being noticed, by first class mail, postage prepaid, a copy of the citation and a notice that despite such refusal, the citation is valid and the municipality will proceed to enforce it; so long as such first class mailing is not returned as undeliverable, service will be conclusively presumed to have been effectuated. Proof of service shall be made at the time of service by a written declaration, under oath, executed by the enforcement official effecting service and shall declare the time, date and manner by which service was made.

    (j) Any person issued a citation as authorized herein, shall be punished by a fine as follows: Within any 12-month period, $100 for the first citation, $200 for the second citation and for each citation thereafter.

    (k) All fines shall be due within ten days of service of the citation except as otherwise set forth in this section. The failure to pay when due any fine imposed under this section shall constitute and failure to appear or otherwise respond under subsection (c), section two-b, article ten of this chapter and the municipal clerk may notify the Division of Motor Vehicles thereof.

    (l) Any person who disputes the citation or alleges he or she was improperly issued the citation may, within ten days of service of the citation, file a petition for appeal of the citation, along with the required bond, with the municipal court clerk in accordance with the following:

    (1) In order to properly and timely appeal his or her citation, within ten days of service of the citation, the alleged violator shall pay the required amount of the applicable fine in full to the municipal court clerk, which amount will be held by the municipal court as bond pending a hearing before the municipal court; the municipal court clerk shall issue a receipt to the recipient showing the amount of the bond paid. Alternatively, within ten days of service of the citation, the recipient of the citation shall file an application with the municipal court clerk for a financial hardship waiver of the bonding requirement;

    (2) Any petition for appeal filed with the municipal court clerk must be in writing, on the form to be provided by the municipal court clerk, and must be signed by the recipient of the citation affirming that the contents of the petition are true and accurate to the best of the recipient of the citation’s knowledge at that time. The petition for appeal shall state the facts and reasons in support of the petition. Upon filing any petition for appeal with the municipal court clerk, the recipient of the citation shall serve a copy of the petition and receipt showing proof of bond or application for waiver thereof upon the city attorney or municipal prosecutor.

    (3) If any petition for appeal filed in accordance with this section is not timely filed or is not accompanied by the required bond or waiver application, the recipient of the citation shall be deemed to have waived his or her right to appeal the citation, and such petition shall be summarily denied as untimely filed; provided, however, that nothing set forth hereinabove shall prevent the municipal court judge from finding, upon a proper showing, that the recipient of the citation suffers from financial or other hardship, and, as a result, extending the time to file a petition or waiving the requirement that the bond be posted as a prerequisite to filing a petition for appeal. Application for a financial hardship waiver of the bonding requirement shall be made within ten (10) days of service of the citation in lieu of posting the bond; if the municipal court judge shall later determine that no financial hardship waiver of the bonding requirement is warranted, no retroactive posting of the bond shall be permitted and the petition shall be denied as untimely filed.

    (m) Upon filing of a petition for appeal with the municipal court clerk, the clerk or his or her designee shall place the case on the municipal court docket, set the case for hearing within thirty days from the date of the filing of the petition, provide a notice of hearing to the recipient and forward a copy of the petition to the enforcement official who issued the citation. Upon receipt of the petition, the enforcement official shall cause a copy of the citation at issue to be forwarded to the municipal court clerk who shall file it as the original complaint of the violation(s) indicated therein. The municipal court shall treat the citation itself as the original complaint before the court.

    (n) At the hearing, the municipal court judge shall first determine if a hardship waiver is warranted. After making that determination, if necessary and provided the municipal court judge determines the petition is properly before the court, the municipal court judge shall hear evidence and make a determination on the merits of the violation(s) contained in the complaint. If the municipal court judge finds against the recipient of the citation, the bond posted by the recipient of the citation shall be applied as payment for the fine imposed for the violation. If the municipal court judge finds against the recipient of the citation and has determined that a hardship waiver is warranted, then the municipal court judge shall make a further determination of whether to impose either (1) the fine for the violation; or (2) alternative sentencing, including but not limited to, community service. If the court finds in favor of the recipient of the citation, the bond shall be refunded to the recipient of the citation by the municipal court clerk.”