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

THE DAILY COURIER GETS IT WRONG AGAIN

By Attorney Jack Swift, JD
September 6, 2013
NewsWithViews.com

Grants Pass, Oregon: -The editor of the Grants Pass Daily Courier (Dennis Roler) offered an editorial last week praising the logic demonstrated by the County in putting Angela’s Hacienda out of business. They offer that as reason for adopting the system of code enforcement proposed in the November election. Once again, the Courier gets it wrong.

The result the Courier praises is the fact that the offending restaurant owner now confronts a fine in excess of $10,000 for failing to renew a $600 permit and has been closed by court order. While the closure order appear to make sense, one has to wonder whether a $600 offense necessitates a $10,000 penalty? Is this a matter of logic and proportionality or is it simply an opportunity for the County to legally loot the citizenry? One might even ask whether it makes good sense in the midst of an economic depression to close a business and put who knows how many people out of work over the failure to pay an annual fee? The out of work employees might have a different view.

According to Roler’s logic, this result shows that our current laws need additional teeth. Angela might opine that the current law not only has teeth, it has fangs dripping with venom. The tale itself rebuts Roler’s allegation, “It makes little sense to have laws if county officials have to beg for compliance.” Clearly, the County has a great deal more at its disposal than begging.

Roler opines, “Their only other choice is to spend thousands of taxpayers’ dollars to take offenders to court.” Roler apparently thinks that there is a net cost to the County as a result of this action. How wrong can he be? Taking Angela to court under the current law cost the taxpayer nothing. In addition to the fine assessed, the County was awarded judgment in an amount to compensate it for its costs of litigation, including attorney fees.

And as legal counsel Steve Rich has observed, the fine and judgment are secured by a lien upon the property. The exercise was nothing but a very successful money makingendeavor. Which should tell us what the proposed rule enforcement ordinances are really all about.

The Angela case was brought under existing law. Under the existing ordinance No. 90- 16, the maximum penalty for failure to pay the $600 renewal fee is closure and a $500 fine. Under the existing law, the violation could have been adjudicated before a hearings officer - even the Board of Commissioners themselves or, alternatively, could be prosecuted in the Circuit Court.

That is a matter of the commissioners’ discretion. The advantage leading to the commissioners’ decision in February to prosecute in State court, is that the County could also assert an action under ORS 624.020. That action allows the County to seek civil penalties in addition to the flat fine under 90-16. In this case, the penalty sought was for $50 per day of operation without payment of the permit fee. The State statute and the existing ordinance provides for the award of costs and attorney fees. Roler is wrong in thinking the County was forced to go to Circuit Court. There was a big profit in doing so.

Roler also opines that “With the new ordinances, which were approved by the commissioners in April, but put on hold until after the election, action could be taken quickly - not delayed for months.” Again, Roler, not knowing the existing law, gets it wrong. Once one understands the profit advantage of $50 per day, one can readily see why the commissioners did not choose to hear this matter promptly themselves. All the delay simply enhanced their profit. No one in legal counsel was concerned that it took from February 17 until April 22 to get the case filed. That delay made the County an extra $3200.

These ordinance proposals are not about teeth. They are not about speed of resolution.

They would effect one big difference. They would deprive the accused of an independent judiciary trying his case. A simple comparison of the proposed scheme and the existing law tells the whole tale.

Both schemes of law begin with notice being sent to the offender. In the case of the existing law, that is letter. (90-16, section 6.00 (1).) Under the proposed 29013-003, that is either a warning notice and/or a citation. (2013-003, sections 7and 8.1.)

Under either scheme the BoCC determines whether the issue is to be prosecuted before its own hearings officer or the Circuit Court. (2013-004, section 5.2; 90-16, section 8.030.)

The defendant has no option in the choice of the tribunal in which his case will be tried. Either scheme provides for immediate abatement by the County without hearing in the case of a public health hazard. (90-16, section 6.00 (3)(B); 2013-002, section 11.4.)

Either scheme, in the absence of an emergency health hazard, allows the accused offender 10 days to correct the problem. (2013-002, sections 10.2 and 11.1; 90-16, section 6.00(1).)

There is nothing in 90-16 that required the delay from January 1 to April 22 for initiating the action against Angela. Enacting the new ordinances would change nothing in that regard. When the BoCC decides to proceed in the Circuit Court under either scheme, there is a 30 delay for the defendant to reply but that delay is necessary only if the BoCC decides they prefer to go there.

Roler is simply wrong when he conceives that changing the scheme would save time. The existing ordinance 90-16 has provision for the award of the County’s attorney fees. (90-16, section 8.030(D).) There is no equivalent provision in the proposed replacement scheme. Thus, Roler is again wrong when he suggests prosecution under the new scheme will save the County money.

The creation of the hearings officer scheme, on the other hand, would greatly change the amount of money the County might be able to garner from the action.

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As illustrated in the Angela case, the present scheme allows the County, when it wants a large judgment, to proceed in the Circuit Court. The effect of 2013-003 is, in the case of a continuing nuisance, to raise the potential payoff for the County from the $50 per day awarded against Angela under the State law to $200 per day (2013-003, section 18.1.), giving the County all the more incentive to be tardy in its prosecution.

The proposed scheme would have the ultimate effect of increasing a violator’s potential liability while forcing his trial to be heard before the commissioner’s hearings officer, serving at the pleasure of the commissioners. (2013-004, section 5.1) Obviously, the concept of an independent judiciary standing between the citizen and the bureaucracy is of no consequence to Mr. Roler.

The proposed ordinance scheme is all about money and the ease of taking it from the citizen. That is it, sum and total. The measures in November need to be defeated.

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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