GOVERNMENT vs. CITIZENS
PART 3 of 4
by Margaret Goodwin
June 22, 2013
Part 3: Code Enforcement Ordinance
This is Part 3 of a four-part analysis of the ordinances recently passed by the Josephine County Board of County Commissioners. This article examines the Code Enforcement Ordinance.
This ordinance creates a financial incentive for County departments to seek out and cite code violations by awarding any imposed fines to the department that issued the citation. Further, it authorizes some egregious abuses of power, such as imposing a fine for twice the value of the property on which a violation occurs if the property owner makes any profit as a result of the violation, and authorizing the County to physically remove the cause of any code violation under the rubric of abating a public nuisance.
This ordinance can be read in its entirety, in a document containing all four ordinances, here. Code Enforcement Ordinance (2013-003)
“The Board of County Commissioners may appoint appropriate persons as Code Enforcement Officers to enforce Josephine County ordinances and codes in accordance with this ordinance.” (2013-003, 5.1) When asked where the County would get the funding to hire Code Enforcement Officers when we can’t even afford to employ two Sheriff’s deputies to patrol the county, the Board of Commissioners stated that the County doesn’t need to hire new Code Enforcement Officers because we already have two of them. One is employed by the Planning Department and the other is employed by the Public Health Department.
There’s nothing in the ordinance that limits the authority of Code Enforcement Officers to only enforce codes within the jurisdiction of their departments, so any Code Enforcement Officer has the authority to cite any citizen for any violation of any County ordinance or code, even if it’s beyond the jurisdiction of the department in which they’re employed.
Nevertheless, there is a powerful incentive for Code Enforcement Officers to cite violations within the jurisdiction of their own department. “Fines recovered shall be paid to the department which issued the Citation.” (2013-003, 18.8.B) Unlike the Solid Waste and Nuisance Abatement Ordinance, this ordinance does not require a citation to be based on a complaint from a citizen, so Code Enforcement Officers are free to seek out and cite violations as a source of revenue for their departments. And their departments are given a direct financial incentive to have them do so.
If a citizen should make any profit through a violation of a county ordinance, the hearings officer can sentence the citizen to pay up to twice the amount of their gain from the violation, where “gain” is defined as either “the amount of money derived from or through the commission of the violation, or the value of the property on which the violation was committed.” (2013-003, 18.6) If a person posts a sign on their property saying they have birdhouses for sale, and they don’t have a permit, that’s a violation of the Planning Code. This ordinance would allow the County to fine them twice the value of their property because they made a profit selling birdhouses on it without a permit. Perhaps it’s unlikely that the County would ever do that, but an ordinance that is so poorly written as to authorize such an egregious abuse of power should never have been adopted.
“Any condition caused or permitted to exist in violation of any provision or any County ordinance, code, rule, regulation, order, or law, shall be deemed to be a public nuisance and may be abated by the County as provided by law.” (2013-003, 18.10) What exactly does it mean to abate a public nuisance?
According to the Solid Waste and Nuisance Abatement Ordinance (see Part 2 of this series) that was passed at the same time as this ordinance, the County may send County personnel onto the property to remove the cause of the nuisance, or may hire a solid waste contractor to go onto the property and remove it. (2013-002, 11.3) “…the Board of County Commissioners may make the cost (of the abatement) a special assessment against the property involved or a personal obligation of the person who generated the nuisance...” (2013-002, 11.3.B)
For example, if you were to build an extension onto your house without the proper permits, this ordinance would grant County personnel the legal authority to go onto your property, tear down and haul away the extension you built, and then bill you or place a lien on your property for the costs incurred in doing so. Again, it may not be likely that the county would actually do that, but an ordinance so poorly written as to allow such an abuse should never have been adopted. It isn’t enough to trust the good intentions of our government. Our laws and ordinances must be written in such a way as to limit the potential for abuse rather than authorize it.
“General Penalty: Any person who fails to comply with any provision of this ordinance for which no penalty is otherwise provided shall be fined … not more than two hundred dollars ($200) per day for a continuing violation, not to exceed ten thousand dollars ($10,000).” (2013-003, 18.1) This is a catchall clause that allows the County to fine citizens up to $10,000 for continuing violations for which no penalty is explicitly specified.
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While it may not have been the intent of the Board of County Commissioners to create an incentive program for County Departments to seek out and cite code violations, that’s what this ordinance does. It may be unlikely that the County would ever impose a fine for twice the value of the property on which a violation occurs, and yet this ordinance authorizes them to do that. There may be cases in which a code violation truly poses a threat to public safety and, in an extreme case of that nature, it might be justified for the County to physically remove the cause of the violation. However, this ordinance deems every condition that violates any provision or any County ordinance, code, rule, regulation, order, or law a public nuisance, and authorizes the County to summarily “abate” it.
A good ordinance should include reasonable limitations on the powers it authorizes in order to protect the citizens from abuses by government. It is not enough to trust the good intentions of those who enforce the ordinances, particularly when the ordinances themselves provide a financial incentive to abuse them. Bad laws (and ordinances) create bad government – and vice versa.
Coming in Part 4 of this series, we’ll examine the Hearings Officer Ordinance, which authorizes a County appointee, with no legal training or experience, to act as judge and jury and pass criminal judgments on citizens for code violations. Part 2 examined the Solid Waste and Nuisance Abatement Ordinance.
See Part 1 for an overview and background on these ordinances.
© 2013 - Margaret Goodwin - All Rights Reserve