Attorney Jack Swift -- Angela's Hacienda: A Tale of Deceit

ANGELA’S HACIENDA: A TALE OF DECEIT

By Attorney Jack Swift, JD
August 26, 2013
NewsWithViews.com

Grants Pass, Oregon: -One must have noted the item in Friday’s Daily Courier entitled “Judge shuts down Angela’s Hacienda.” The incident - all about code compliance - is chilling.

Back in mid-April, Stacy Stumbo of the Daily Courier opined that the “County tries to put teeth into code enforcement” by adopting the package of code compliance ordinances now referred to the November ballot. The Courier apparently agreed with County Counsel’s opinion that handling a problem in Circuit Court “is expensive and takes up employee time, costing taxpayers thousands of dollars and sometimes taking years to resolve. The proposed ordinance system would bring the process in house, and a hearings officer would prosecute violators.”

The case against Angela Garibay, the owner and operator of Angela’s Hacienda, was prosecuted under the current law and according to the system adopted by the voters in November of 1990. According to Steve Rich, County Counsel, the action “could have been handled without the involvement of the courts and attorneys and with resultant lower costs, if Josephine County had a hearings officer system. . .” According to Rich, “It’s just more expeditious and less costly.”

It is important to note that Angela’s offense was failure to pay a permit fee. There is no allegation that her restaurant in any way failed to qualify for a permit, that it had failed safety inspections, or that there were any food quality complaints. While one has to wonder about the wisdom of the County closing down a successful business in operation since the 1990s and putting an unknown number of employees out of work in the midst of a depression for failure to pay a $600 permit fee, the Angela case is a wonderful illustration of all of the mendacity in this argument over the code compliance ordinances.

The first thing to note about the existing County ordinance No. 90-16 is that it requires one letter to be sent in complaint and giving the accused 10 days to come into compliance. See section 6.00(1). In the Angela case, this letter was sent on February 12. Under the proposed Ordinance 2013-003, an initial warning notice would be required.

See section 7. If that failed to bring about compliance, then an enforcement officer would issue a citation consisting of a summons and a complaint. The summons and complaint could be to either the Circuit Court or a hearings officer. See section 8. In terms of expeditiously responding to a problem, there would be no difference. In terms of cost of county employee labor, there would be no difference. Mendacity number one.

It is important to note that the existing ordinance No. 90-16 allows for a case to be handled by a hearings officer - usually the Board of Commissioners. See section 8.020.

As the proposed ordinance No. 2013-003 allows the County the choice of proceeding in Circuit Court or before a hearings officer, so too does 90-16. The existing law does not, and did not in the Angela case, require the “cumbersome” litigations feared by Commissioner Walker. Mendacity number two.

The Angela case became an issue on January 1st. Notice was sent on February 12th. A six page complaint was filed in the Circuit Court on April 22. Judgment was given sometime last week, August 16 at the latest. How expeditious do we want to be when it comes time to put someone out of business? This is not a situation of Commissioner Walker’s prolonged litigations taking up to sixteen months or Rich’s “sometimes years to resolve.” Mendacity number three.

One has to wonder why the County chose to go to Circuit Court when they had the option of a hearings officer that could supposedly save the “taxpayers thousands of dollars.” An examination of the complaint filed in the action, case number 13CV0513, explains everything. Before a hearings officer, the County could prosecute only under ordinance 90-16 which calls for a $500 fine. In the Circuit Court, the County could and did prosecute under ORS 624.020 which allows for the imposition of a fine of $50 per day.

Simply, in the Court action, the County stood to make more than $10,000 in penalties against a mere $500 in a hearings action. There is no way the Court action can be seen as more costly to the taxpayer. Mendacity number four.

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Angela’s case illustrates the true reason for proposed ordinance No. 2013-005. That ordinance, if adopted, would incorporate certain State statutes as County ordinances for purposes of prosecution before the hearings officer. Specifically mentioned are ORS 624-010 to 624.130. See section 3.3. If adopted, the accused would be stripped of an independent judiciary standing between him and the administration and would instead be tried by an un-licensed, un-certified officer serving at the pleasure of the County Commissioners. Mendacity number five.

Angela’s case tells us all we need to know about the scheme of ordinances advocated by Rich and Walker. It is all about the money and the ease of tapping the citizen for $10,000 rather than a paltry $500. It is all mendacity. The entire electorate, and particularly the business community, should be outraged and fearful. The whole package of code compliance ordinances should be rejected out of hand.

Related Articles:

1- Commissioner Cherryl Walker, Kangaroo Court and Big Fines
2- Josephine County, Oregon: Sad Failure of Central Planning
3- Commissioners Cherryl Walker and Keith Heck Misinformed
4- Bureaucrat Cherry Walker - The Bully in Josephine County Government
5- What the Grants Pass Daily Courier Failed to Report
6- County Government vs. Citizens, Part 1
7- County Government vs. Citizens, Part 2
8- County Government vs. Citizens, Part 3
9- County Government vs. Citizens, Part 4

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Jack Swift is an retired attorney. Actively involved in the Republican Party and local politics, Jack would love to see honest Constitution following representatives in local Josephine County government. Jack believes if we are to save America from the grip of evil, people must get involved on the local level and expose wrongdoers at every opportunity. He is putting that belief in practice.

E-Mail: jhswft@earthlink.net

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