G3-09 Ordinance No. G3-09
AN ORDINANCE
AMENDING TITLE 1 OF THE ELGIN MUNICIPAL CODE, 1976, AS AMENDED,
TO ESTABLISH PROCEDURES FOR THE ADMINISTRATIVE ADJUDICATION OF
NON-VEHICULAR CODE VIOLATIONS
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS:
Section 1. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by creating Chapter 1.25, entitled, "Administrative
Adjudication of Non-Vehicular Code Violations,"to read as follows:
SECTION:
1.25.010: Purpose, Reservation of Right; Authority
1.25.020: Administrative Composition
1.25.030: Procedures
1.25.040: Administrative Hearings
1.25.050: Representation at Hearings
1.25.060: Fines; Compliance Bond
1.25.070: Violations of Orders
1.25.080: Administrative Review
1.25.090: Judgment and Collection
1.25.100: Election of Remedies Non-Exclusive
1.25.010: PURPOSE; RESERVATION OF RIGHT; AUTHORITY:
The purpose of this Chapter is to provide a fair and efficient method of enforcing the
City's regulations through administrative adjudication of charges of non-vehicular
violations of this Code. All provisions of this Code may be enforced through the
administrative adjudication system, provided the system shall have no authority to
impose a penalty of incarceration or adjudicate an offense under the Illinois Motor
Vehicle Code which is a traffic regulation governing moving vehicles, or to impose a fine
in excess of $50,000.00. The City reserves its right to employ all other means and
methods available under the law to enforce this Code, including direct application to the
courts.
Pursuant to the authority conferred by section 1-2.1-1 et seq. of the Illinois Municipal
Code (65 ILCS 5/1-2.1-1, et seq.) which authorizes home rule municipalities to provide
by ordinance for a system of administrative adjudication of municipal code violations to
the extent permitted by the Illinois Constitution, the City hereby creates a system of
administrative adjudication for charges of violations of this Code. The City hereby adopts
65 ILCS 5/1-2.1-1, et seq., as amended from time to time. In the event of conflict
rok between said statutes and this Chapter, the Chapter shall prevail. The adoption of this
Chapter does not preclude the City from using other lawful methods to enforce the
provisions of this Code.
1.25.020: ADMINISTRATIVE COMPOSITION:
The system of administrative adjudication of non-vehicular regulations violations shall be
composed of a Code hearing unit which shall be comprised of a hearing officer, and may
include any one or more of the following: an administrator, a computer operator/system
coordinator and hearing room personnel (deputy), with the power, authority and
limitations as are hereinafter set forth:
A. Powers of the Hearing Officer. The hearing officer shall have all of the powers
granted to hearing officers under State law, set forth at section 1-2.1-4 of the
Illinois Municipal Code (65 ILCS 5/1-2.1-4), as amended, the provisions of which
are incorporated herein by this reference, including the power to:
1. Preside over all administrative hearings as the adjudicator.
2. Administer oaths.
3. Hear testimony and accept evidence that is relevant to the existence of the Code
violation.
4. Issue subpoenas to secure the attendance of witnesses and the production of
relevant papers or documentation upon the request of the parties or their
representatives.
5. Rule upon objections and the admissibility of evidence.
6. Preserve and authenticate the record of the hearing and all exhibits and
evidence introduced at the hearing.
7. Issue a determination, based on the evidence presented at the hearing, of
whether a Code violation exists. The determination shall be in writing and shall
include a written finding of fact, decision, and order setting forth the fine, penalty,
or action with which the person found liable must comply.
8. Impose penalties consistent with applicable Code provisions and assess costs
upon finding a party liable for the charged violation. Notwithstanding those
violations for which the Illinois Municipal Code (65 1LCS 5/1-1-1 et seq.), as
amended, limits the fine or penalty to seven hundred fifty dollars ($750.00), the
hearing officer shall have the authority to impose fines and penalties up to fifty
thousand dollars ($50,000.00). When applicable, each day a Code provision is
found to have been violated by the defendant shall constitute a separate offense,
and each separate offense subjects the respondent to the penalty provided by the
governing penalty provision. In addition to imposing penalties consistent with
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applicable Code provisions and assessing costs upon finding a party liable for the
charged violation, the hearing officer may:
a. Impose, in addition to fines, administrative and/or enforcement costs
and when applicable, imposing costs incurred by the City for effecting
compliance with Code provision(s) for which a defendant has been found liable.
b. Order, notwithstanding fines imposed or costs assessed, the defendant
to comply with Code provision(s) found to have been violated, and, if appropriate,
ordering the respondent to post a compliance bond as provided by subsection
1.25.060 of this Chapter.
c. Order, regardless of fines imposed or costs assessed, the defendant to
perform a term of community service.
9. In no event shall a hearing officer have the authority to:
a. Impose a penalty of incarceration.
b. Impose a fine in excess of fifty thousand dollars ($50,000.00).
c. The maximum monetary fine under subsection (b), above, shall be
exclusive of costs of enforcement or costs imposed to secure compliance with the
Code and shall not be applicable to cases to enforce the collection of any tax
imposed and collected by the City.
B. Powers of the Administrator. The administrator shall be empowered and is
authorized and directed to:
1. Operate and manage this system of administrative adjudication of non-
vehicular Code violations.
2. Adopt, distribute and process Code violation notices and other notices as may
be required to carry out the purpose of this Chapter.
3. Collect monies paid as fines and/or penalties assessed after a final
determination of a Code violation.
4. Promulgate rules and regulations reasonably required to operate and maintain
this administrative adjudication system.
5. Collect unpaid fines and penalties and otherwise pursue all post judgment
remedies available under law.
6. Compromise or otherwise settle violation notices prior to a hearing date.
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However, any such compromise should be made of record by the administrator on
the date the violation notice was scheduled to appear for hearing, with an
explanation by the Administrator as to the reasons for such compromise. The
hearing officer is also required to approve any such compromise or settlement at
the hearing.
C. Powers of the System Coordinator. The system coordinator/computer operator
shall operate and maintain computer programs for the administrative adjudication
system created hereunder, on a day-to-day basis, including but not limited to:
1. Input of violation notice information.
2. Input of hearing and notice dates.
3. Input of fine and penalty assessments and payments.
4. Issuance of receipts for payment.
5. Issuance of succeeding notices of hearing dates or court dates and/or final
determination of liability as directed by the administrator or by the hearing officer
in accordance with the provisions hereinafter set forth.
6. Maintenance of accurate records of appearances and non-appearances at
administrative hearings, pleas entered, fines and penalties assessed and paid.
D. Powers of the Hearing Room Personnel. The hearing room personnel shall be full-
time, part-time or auxiliary police officers. The hearing room personnel shall:
1. Maintain hearing room decorum.
2. Have and carry out such authority as is granted to courtroom deputies of the
Circuit Court for the Sixteenth Judicial Circuit, Kane County, Illinois.
3. Perform such other duties or acts as may reasonably be required to maintain
hearing room decorum as directed by the Hearing Officer or the Administrator.
E. Selection and Appointment of Personnel. The persons who shall hold the
positions of hearing officer, administrator, computer operator/systems
coordinator, and hearing room personnel under this Chapter shall be selected, and
appointed according to the following procedures:
1. The hearing officers shall be appointed by the city manager and shall serve
pursuant to the terms set forth in an employment agreement for such services as
determined by the city manager. Hearing officers shall be subject to removal at
the sole discretion of the city manager.
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2. In making selections, the city manager shall consider all pertinent information,
including at a minimum:
a. Candidate's ability to comply with the job descriptions as set forth
herein; and
b. Background and performance date made available to the city manager
on file with the City, or otherwise obtained by the City; and
c. Whether the candidate meets the statutory criteria as an attorney
licensed to practice law in the State of Illinois for at least three (3) years.
3. Administrator, System Coordinator and Hearing Room Personnel:
a. The city manager shall assign the duties of administrator, system
coordinator and hearing room personnel to City employees.
F. Compensation. The compensation to be paid for the hearing officer shall be
established annually by the city manager.
G. Training of Personnel. Prior to a hearing officer conducting these administrative
adjudication proceedings, the hearing officer must either:
rbk 1. Demonstrate a minimum of three years experience as a hearing officer for a
program of administrative adjudication of violations of non-vehicular regulations;
or
2. Successfully complete a formal training program pursuant to section 1-2.1-4(c)
of the Illinois Municipal Code (65 ILCS 5/1-2.1-4(c)), as amended.
1.25.030: PROCEDURES:
The system of administrative adjudication of non-vehicular regulations violations shall be
conducted in accordance with the following procedures to assure defendants are afforded
due process of law:
A. Issuance of Violation Notices. Code violation notices may be issued by any
authorized person and shall contain information and shall be served, certified and
have evidentiary value as hereinafter stated. Certain violation notices may be
issued in the form of a "C" ticket allowing the recipient to pay the stated fine prior
to any hearing. If the recipient fails to pay the required fine within the allotted
time under the "C" ticket, the violation notice will be processed through the
administrative adjudication system as otherwise provided for in this Chapter.
B. Authorization. All full-time, part-time and auxiliary police officers and other
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specifically appointed individuals including, but not limited to, the City's code
official (Community Development Group Director) and his or her designees,
including but not limited to, code enforcement officers and building inspectors,
shall have the authority to issue violation notices.
C. Detection of Violations. Any individual authorized to issue a violation notice who
detects a violation of any non-vehicular regulation shall issue a notice of violation
thereof and shall serve the violation notice as herein provided.
D. Content. Violation notices shall contain, at a minimum:
1. The date, time and place of the violation(date of issuance).
2. The particular Code section or regulation violated.
3. The common address of the building or property alleged to be in violation (the
"cited property"), if applicable.
4. The signature and identification number, if applicable, of the person issuing the
violation notice.
5. The date, time and place of the administrative hearing at which the charge may
be contested on its merits. This date shall be no less than fifteen (15) days after
the date of service of the violation notice. A hearing may be set at a date less than
fifteen (15) days after the date of service of the violation in an emergency
situation where the violation constitutes a threat to public interest, safety or
welfare.
6. A statement of penalties for failure to appear at the hearing.
7. If the violation notice is issued as a "C" ticket, the notice shall include the
amount of the fine and the date required for payment of the fine. The notice under
the "C" ticket shall also apprise the recipient that the failure to pay the stated fine
within the allotted time will operate to process the violation notice within the
administrative adjudication system as otherwise provided for by this Chapter.
E. Service of Violation Notices. Service of violation notices shall be made in a
manner reasonably calculated to give the defendant actual notice, by:
1. Handing a copy of the violation notice to the person charged; or
2. Delivering a copy of the violation notice to the person charged by certified
mail, return receipt. Such service shall be completed as of the date of deposit in
the United States Mail.
3. If a violation of Title 16 of this Code (Buildings and Construction) is alleged
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where the person charged is an owner or manager of the property, posting a copy
on the cited property.
F. Certification. The correctness of facts contained in the violation notice shall be
certified by the issuing person by:
1. Signing his or her name to the violation notice at the time of issuance; or
2. In the case of a violation notice produced by a computer device, by signing a
single certificate, to be kept by the administrator, attesting to the correctness of all
violation notices produced by the device while under his/her control.
G. Business Records. The original or complete copy of the violation notice shall be
retained and kept as a record in the ordinary course of City business.
H. Prima Facie Evidence. Any violation notice issued, signed and served in
accordance herewith, or a complete copy of the notice, shall be deemed prima
facie correct and shall be considered prima facie evidence of the facts alleged
therein.
I. Admissibility. The violation notices shall be admissible in any subsequent
administrative or legal proceeding.
1.25.040: ADMINISTRATIVE HEARINGS:
An administrative hearing shall be held to adjudicate an alleged Code violation on its
merits, or to contest the validity of a violation notice. Specifically, hearings shall be held
to adjudicate alleged violations of all Code sections except those that are excluded by law
from the City's administrative adjudication system:
A. Time and Date. Hearings shall be on the date, time and place as set forth in the
violation notice issued and served.
B. Recording. Hearings shall be tape recorded.
C. Non-Appearance. Persons who do not appear on their scheduled hearing date shall
have a default judgment entered against them.
D. Hearing Rights. Persons appearing to contest an alleged Code violation may be
represented by counsel of their own choice at their own expense, may present
witnesses, may present testimony and documents, may cross examine opposing
witnesses, and may request the issuance of subpoenas to compel the appearance
of relevant witnesses or the production of relevant documents.
E. Evidentiary Standard. The formal and technical rules of evidence do not apply in
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an administrative hearing conducted in compliance with this Chapter. Evidence,
including hearsay, may be admitted, pursuant to state law set forth at section 1-
2.1-6 of the Illinois Municipal Code (65 ILCS 5/1-2.1-6), as amended, only if it is
of the type commonly relied upon by reasonably prudent persons in the conduct
of their affairs.
F. Determination of Liability. Hearings shall result in a default judgment, or a
determination of liability or non-liability, made by the hearing officer, who shall
consider facts and/or testimony. The hearing officer shall, upon a determination of
liability, assess fines and penalties in accordance with this Chapter and issue a
notice of final determination that shall contain, at a minimum, the following
information and warnings:
1. The findings, decision and order of the hearing officer.
2. A date by which the violation must be brought into compliance with the Code.
3. A statement that the unpaid fine and any penalty assessed is a debt due and
owing the City.
4. A warning that the findings, decision and order of the hearing officer may be
enforced in the same manner as a judgment entered by a court of competent
jurisdiction. And in the case in which a defendant fails to comply with a judgment
ordering the correction of a Code violation or imposing any fine or other sanction
as a result of the Code violation, a statement that any expenses incurred by the
City to enforce the judgment, including but not limited to, attorneys' fees, court
costs and costs related to property demolition or foreclosure, shall be a debt due
and owing the City and may be collected in accordance with applicable law.
5. A notice of judgment entered by default shall be forwarded to any person who
fails to appear and shall contain the same information as a determination of
liability, but shall also state that the judgment may be set aside by the hearing
officer if, within twenty-one (21) days of issuance of the judgment, a petition is
received stating what the hearing officer determines is good cause for failure to
appear. The hearing officer, upon making a determination of good cause shall,
within the twenty-one (21) day period, provide the petitioner with notice of a new
hearing date or denial of the petition. The default judgment shall state that it shall
constitute a final determination of liability if such petition is not received, if the
petition is denied or if after setting of a new hearing date the person fails to
appear.
G. Final Determination. The determination of liability shall constitute a final
determination for purposes of judicial review and shall be subject to review under
the Illinois Administrative Review Law(735 ILCS 5/3-101, et seq.), as amended.
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1.25.050: REPRESENTATION AT HEARINGS:
A. City Representation. The case for the City may be presented by a city employee, or by
an attorney designated by the corporation counsel, but not by an employee or other
representative of the code hearing unit, subject to the following exception: Documentary
evidence prepared by another department of the City and submitted to the code hearing
unit may be presented at the hearing by the hearing officer.
B. Defendant Representation. The case for the defendant may be presented by the
defendant or by an attorney or agent of the defendant. An attorney or agent appearing at
an administrative hearing on behalf of a defendant shall present the hearing officer with a
signed appearance form stating, on oath or affirmation, that he or she has been authorized
by the defendant to represent the defendant at the hearing.
1.25.060: FINES; COMPLIANCE BOND:
A. All fines and other monies to be paid to the City in accordance with this Chapter
shall be remitted to the City and deposited in the appropriate City account as
designated by the city manager.
B. To ensure that Code violations are remedied in a timely manner, the hearing
officer, upon issuing a determination of liability that includes an order of
compliance, may order the defendant in the case to obtain a bond to ensure
defendant's timely compliance with the Code provision(s) found to have been
violated. Any bond ordered pursuant to this subsection shall name the City as
beneficiary and shall be in the amount specified by the hearing officer, provided
that the amount of the bond shall be reasonably related to the cost of compliance.
Any bond issued as a result of the hearing officer's order is subject to review and
modification by the city manager as to form and amount. If the defendant fails to
remedy in a timely manner the Code violation(s) for which a bond has been
ordered and issued and the City undertakes remediation or otherwise expends
funds related to the code violation(s) for which a bond has been ordered and
issued, the hearing officer, after giving the parties notice and opportunity to be
heard, may issue an order permitting the City to draw against the bond in an
appropriate amount. The hearing officer shall order the bond amount, less the
reasonable costs incurred by the City, returned to the defendant upon proof of
compliance with the Code provision(s) found to have been violated.
C. In the event a defendant ordered to secure a bond as provided by subsection B of
this section seeks judicial review of that portion of the hearing officer's order
requiring a bond and prevails on that issue, the City shall release the bond, and if
the City has drawn against the bond, the City shall refund to the defendant the
total amount drawn within thirty (30) days of receiving a copy of the reviewing
court's mandate.
1.25.070: VIOLATIONS OF ORDERS:
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Any person, having received notice and an opportunity for a hearing as provided in this
Chapter, who knowingly fails to comply with an order issued by the hearing officer under
this Chapter, including the issuance of a subpoena, shall, if the order is not stayed by a
court of competent jurisdiction prior to its effective date, be guilty of contempt. Contempt
shall be enforceable only by the judicial system of the Circuit Court for the Sixteenth
Judicial Circuit, Kane County, Illinois, or the Circuit Court of Cook County, and shall be
punishable by applicable law. Each day that the violation continues shall be considered a
separate and distinct offense. In a prosecution under this section, it shall not be a defense
that a person came into compliance with an order, sought judicial review of it, or made
efforts to comply with an order, subsequent to its effective date
1.25.080: ADMINISTRATIVE REVIEW:
The administrative review of final determinations issued by the hearing officer under this
Chapter shall be subject to the provisions of the Illinois Administrative Review Law (735
ILCS 5/3-101, et seq.), as amended, which sections are incorporated herein by reference.
1.25.090: JUDGMENT AND COLLECTION:
A. Enforcement. Upon expiration of the period in which judicial review under the
Illinois Administrative Review Law may be sought for a final determination of a
Code violation, unless stayed by a court of competent jurisdiction, the findings,
decision and order of the hearing officer may be enforced in the same manner as a
judgment entered by a court of competent jurisdiction.
B. Court Costs, Attorneys' Fees and Costs of Collection. In any case in which a
person has failed to comply with a hearing officer's judgment ordering the
correction of a Code violation or imposing any fine or other sanction as a result of
a Code violation, any expenses incurred by the City to enforce the judgment,
including, but not limited to, attorneys' fees, court costs, and costs related to
property demolition or foreclosure, after they are fixed by a court of competent
jurisdiction or by the hearing officer shall be a debt due and owing the City and
may be collected in accordance with applicable law.
1. Prior to any expenses being fixed by the hearing officer pursuant to this
subsection, the City shall provide notice to the person that states that the person
shall appear at a hearing before the hearing officer to determine whether the
person has failed to comply with the judgment. The notice shall set the date for
such hearing, which shall not be less than seven (7) days from the date that notice
is served. If notice is served by mail, the seven (7)-day period shall begin on the
date the notice was deposited in the mail.
2. Upon being recorded in the manner required by Article 12 of the Code of Civil
Procedure (735 ILCS 5/12-101 et seq.), as amended, or by the Uniform
Commercial Code, as amended, a lien shall be imposed on the real estate or
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personal estate, or both, of the person in the amount of any debt due and owing
the City under this Section. The lien may be enforced in the same manner as a
judgment lien would be enforced in a court of competent jurisdiction.
1.25.100: ELECTION OF REMEDIES NON-EXCLUSIVE:
Nothing contained in this Chapter shall prevent the City from pursuing all available
remedies, allowed by law,to collect money judgments.
Section 3. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by amending Chapter 1.20, entitled, "General Penalty;
Citations,"to amend section 1.20.020A to read as follows:
A. Any person violating any of the provisions or failing to comply with any of the
mandatory requirements of the ordinances of the City shall be guilty of an
offense. Except in cases where a different penalty is prescribed by any ordinance
of the City, any person convicted of an offense under the ordinances of Elgin shall
be punished by a fine of not less than fifty dollars ($50.00) nor more than a fine of
seven hundred and fifty dollars ($750.00).
Section 4. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by amending Chapter 1.20, entitled, "General Penalty;
Citations,"to delete section 1.20.030 in its entirety.
Section 5. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by amending Chapter 1.20, entitled, "General Penalty;
Citations,"to delete section 1.20.040 in its entirety.
Section 6. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by amending Chapter 1.20, entitled, "General Penalty;
Citations,"to delete section 1.20.050 in its entirety.
Section 7. That Title 1 of the Elgin Municipal Code, 1976, as amended, entitled "General
Provisions," be and is hereby amended by amending Chapter 1.20, entitled, "General Penalty;
Citations,"to delete section 1.20.060 in its entirety.
Section 8. Severability. If any provision, clause, sentence, paragraph, section or part of
this ordinance or application thereof to any person or circumstance, shall for any reason be
adjudged by a court of competent jurisdiction to be unconstitutional or invalid, said judgment
shall not affect, impair or invalidate the remainder of this ordinance and the application of such
provision to other persons or circumstances, but shall be confined in its operation to the
provision, clause, sentence, paragraph, section or part thereof directly involved in the
controversy in which such judgment shall have been rendered and to the person or circumstances
involved. It is hereby declared to be the legislative intent of the City Council that this ordinance
would have been adopted had such unconstitutional or invalid provisions, clause, sentence,
paragraph, section or part thereof not been included.
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Section 9. That all ordinances or parts of ordinances in conflict with the provisions of this
ordinance be and are hereby repealed.
Section 10. That this ordinance shall be in full force and effect on May 1, 2009 upon its
passage and publication in the manner provided by law.
Ed Schock, Mayor
Presented: January 14, 2009
Passed: January 14, 2009 „0 O F
Vote: Yeas: 5 Nays: 0
Recorded: January 15, 2009 .11
Published: January 16, 2009 �. '11,s`'P'4
Attest: 'n
Diane Robertson, City C erk
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