ACTION ALERT!!!! YOUR HELP IS NEEDED ABOUT A proposed new ordinance by the County Commissioners

STATE OF OREGON

ORDINANCE No. 2021-002

AN ORDINANCE AMENDING THE COUNTY CODE (ORDINANCE NO. 2018-004) BY AMENDING JOSEPHINE COUNTY CODE TITLE 19: RURAL LAND DEVELOPMENT CODE, CHAPTER 19.19: VIOLATIONS; ADDING NEW SECTIONS TO CHAPTER 19.19, AND AMENDING THE TITLE OF CHAPTER 19.19 TO: VIOLATIONS; ADMINISTRATIVE SEARCH WARRANTS; CITATION AUTHORITY; FINES.



 
Please review the document below which outlines a proposed new ordinance that WILL HAVE ITS FIRST READING, AT THE COMMISSIONERS MEETING, BY ZOOM ON WED. SEPTEMBER 1, 9:00 AM.  

This is the type of thing that we need to jump on immediately so it doesn’t go any further.  The Commissioners are proposing to empower the Planners to be able to enter any property, make assessments and fines, etc.  

It is geared toward the marijuana industry, but is not bound by it and could have far-reaching consequences including violating our property and privacy rights. This ordinance needs to be scrapped and rewritten with more finite goals and processes.  Please join me in saying NO to this ordinance on Wednesday morning.  We will offer our assistance to come up with something more appropriate for the problem at hand.
 
Below you will see a webinar invite.  You must register for this, so take action Tuesday so you will be ready by Wednesday at 9 am. 

Please write your own statement to read.  I will be writing one and will send it to all for review.

Thank you for being an important part of shaping our community.  WE NEED YOUR HELP!!

Holli JoCo Chair


 

You are invited to a Zoom webinar.
When: Sep 1, 2021, 09:00 AM Pacific Time (US and Canada)
Topic: Weekly Business Session

Register in advance for this webinar:
https://us02web.zoom.us/webinar/register/WN_Xr4z7tykRR6fJpwHL-kEMQ

After registering, you will receive a confirmation email containing information about joining the webinar.


   BEFORE THE BOARD OF COUNTY COMMISSIONERS FOR JOSEPHINE COUNTY STATE OF OREGON
 
ORDINANCE No. 2021-002
 
AN ORDINANCE AMENDING THE COUNTY CODE (ORDINANCE NO. 2018-004) BY AMENDING JOSEPHINE COUNTY CODE TITLE 19: RURAL LAND DEVELOPMENT CODE, CHAPTER 19.19: VIOLATIONS; ADDING NEW SECTIONS TO CHAPTER 19.19, AND AMENDING THE TITLE OF CHAPTER 19.19 TO: VIOLATIONS; ADMINISTRATIVE SEARCH WARRANTS; CITATION AUTHORITY; FINES.
           
            WHEREAS, Title 19 of the Josephine County Code establishes regulations for the management of Rural Land Development Code enforcement violations; and
 
            WHEREAS, the prevalence of code enforcement violations in conjunction with unlawful activity in the county is pervasive and increasing; and
 
            WHEREAS, alternative forms of enforcement are necessary to better address the most egregious code enforcement violations throughout the county while balancing individual property rights and due process under the law; and
 
WHEREAS, Josephine County is responsible for protecting the health, safety, and welfare of its citizens through state and local laws; now, therefore,
 
The Board of County Commissioners of Josephine County ordains as follows:
 
Section 1.00   TEXT AMENDMENTS
 
Chapter 19.19 of the Josephine County Code (JCC) is amended as follows (language stricken is deleted; double underlined language is new):
 
Sections:
19.19.010        Penalty. Notification of violation.
19.19.020        Notification of violation. Compliance procedures and infraction citations.
19.19.030        Compliance procedure. Grounds for Issuance of Administrative Search Warrants.
19.19.040        Legal action. Execution of Administrative Search Warrants
19.19.050        Other remedies. Infraction Citation.
19.19.060        Appearance by Defendant.
19.19.070        Consent Decree.
19.19.080        Hearing.
19.19.090        Enforcement.
19.19.100        Fines for Infraction Citation
19.19.110        Further legal action.
19.19.120        Fines upon conviction in civil litigation.
19.19.130        Other remedies.
 
19.19.010        Penalty.
Any person violating any of the provisions of this regulation shall be punishable, upon conviction, by a fine of not more than $500.00 for a non-continuing offense and a fine of not more than $1,000 for a continuing offense [Ord. 85-1 § 15.237.]
 
19.19.010        Notification of Violation.
 
Upon determination of an alleged violation, the Planning Director or his or her designates shall promptly notify the property owner in writing, either through personal delivery or both regular first-class mail and certified mail, return receipt requested.  Initial correspondence with the property owner shall:
 
A.         Cite the alleged violation, the section of the ordinance which may be violated, and the remedies which are available to correct the alleged violation;
 
B.         Offer the assistance of the Planning Director or his or her designates to work with the property owner to correct an alleged violation.
 
C.        Such correspondence shall state all options available to the property owner to remedy the alleged violation and which options are most likely to meet with approval.
 
D.        Correspondence shall specify a period of time, not more than (thirty) 30 days, to abate the alleged violation.  Any extension of time beyond this period shall be granted in writing by the Planning Director or his or her designates, with the signature of the property owner.
 
19.19.020        Notification of violation.
Upon determination of an alleged violation, the Planning Director or his assistants shall notify the property owner.  Initial correspondence with the property owner shall:
A.         Be in written form and shall be composed in such a manner that no accusations are made;
B.         Cite the alleged violation, the section of the ordinance which may be violated, and the remedies which are available to correct the problem;
C.        Offer the assistance of the Planning Director or his assistants to work with the property owner to correct a problem.  Such correspondence shall state all options available to the land owner and which options are most likely to meet with approval.  Correspondence shall specify a period of time, not more than 30 days, to abate the alleged violation.  Any extension of time beyond this period shall be granted in writing by the Planning Director or his assistants, with the signature of the property owner.  [Ord. 85-1 § 15.238]
 
19.19.020        Compliance procedures and infraction citations.
 
A.         If the Planning Director has reasonable cause to believe a violation of this title exists, a site inspection shall be conducted on the property by the Planning Director or his or her designates with the consent of the property owner.  If the property owner refuses access to the property, the Director or his or her designates shall document such refusal and may apply for an administrative search warrant to gain access to said property pursuant to JCC 19.19.030 and JCC 19.19.040.
 
B.         The Planning Director or his or her designates shall attempt to document the alleged violation with photographs and appropriate field notations.  Departmental files shall contain a recording of the time, date and location of any photographs pertaining to the alleged violation, together with the names of any witnesses who viewed the alleged violation. 
 
C.        Prior to submission of the alleged violation for legal remedy, the Planning Director or his or her designates shall notify the property owner of the alleged violations in writing to attempt to obtain voluntary compliance with the law.
 
D.        Any extension of time to abate the alleged violation as a result of the notice described by subsection C of this Section shall be granted at the sole discretion of the Planning Director.  Such extension shall be agreed to in writing and shall be limited to no more than fifteen (15) days, or a compliance schedule with intermediate program check-ups.
 
E.         If an alleged violation is not abated within the period authorized by the notice described in subsection C of this Section or no response is received from the property owner, the Planning Director, or his or her designates shall be authorized to issue an infraction citation pursuant to the provisions outlined in JCC Section 19.19.050.
 
F.         In addition to the remedy provided for in subsection E of this Section, if the property owner does not respond to notifications of violation, the Planning Director shall prepare documentation of the alleged violation for submission for appropriate legal remedy.  Prior to submission of the violation the Director shall send a certified letter containing the following:
 
1.         Citation of previous compliance requests, extensions of time, or commitments;
 
            2.         Description of alleged violations and necessary corrective actions; and
 
3.         Indication of a time limit of seven (7) days to comply with the ordinance and a statement that if the alleged violation is not corrected within the time limit, formal legal action will begin without further notice from the Planning Department.
 
G.        The Planning Director or his or her designates may continue to offer to meet with the property owner to discuss any alleged violation and to secure a possible solution other than a court proceeding.  Formal correspondence shall include a copy of the applicable sections of the Josephine County Code and copies of all previous correspondence and agreements related to the matter.
 
19.19.030        Compliance procedure.
A.         If the Planning Director has reasonable cause to believe a violation of this title exists, a site inspection may be conducted on the property by the Planning Director or his assistants with the consent of the property owner.  If the property owner refuses access to the property, the Director shall document such refusal and utilize other available legal remedies to gain access to said property.
B.         If an alleged violation is not abated within the period authorized by the original notification, the Planning Director or his assistants shall attempt to document the violation with photographs and appropriate field notations.  Departmental files shall contain a recording of the time, date and location of any photographs pertaining to the alleged violation, together with the names of any witnesses who, in addition to the enforcement officer, viewed the alleged violation.
C.        Prior to submission of the alleged violation for legal remedy, the Planning Director or his assistants shall attempt to recontact the property owner, explain the standards of the ordinance, and seek to obtain voluntary compliance with the law.  If an extension of time is necessary, such extension shall be agreed to in writing and shall be limited to no more than 30 days, or a compliance schedule with intermediate program check-ups. 
D.        If the property owner does not respond to notifications of violation, the Planning Director shall prepare documentation of the alleged violation for submission for appropriate legal remedy.  Prior to submission of the violation the Director shall send a certified letter containing the following:
1.         Citation of previous compliance request, extensions of time, or commitments;
            2.         Description of alleged violations and necessary corrective actions; and
3.         Indication of a time limit of 15 days to comply with the ordinance and a statement that if the alleged violation is not corrected within the time limit, formal legal action will begin without further notice.
E.         The Planning Director or his assistants shall continue to offer to meet with the property owner to discuss any alleged violation and to secure a possible solution other than a court proceeding.  Formal correspondence shall include a copy of the applicable sections of the County ordinance and copies of all previous correspondence and agreements related to the matter.  [Ord.85-1 § 15.239].
 
19.19.030        Grounds for Issuance of Administrative Search Warrants.
 
A.         Any judge with jurisdiction in Josephine County is authorized to issue an administrative search warrant upon application by the County Attorney, Building Official, Planning Director, or their designates, acting in the course of their official duties, whenever an inspection or investigation of any place is required or authorized by any ordinance or regulation.  The warrant is an order authorizing the inspection or investigation at a designated location.
 
B.         An administrative search warrant shall be issued only upon cause, supported by affidavit.  Such affidavit shall:
 
            1.         Particularly describe the applicant’s status in applying for the warrant;
 
2.         The ordinance or regulation requiring or authorizing the inspection or investigation;
 
3.         The full address to be inspected or investigated;
 
4.         Background information on the property, including past compliance issues related to the alleged violations present on the property or a refusal by the property owner to give consent to inspect the property;
 
5.         The purpose for which the inspection or investigation is to be made, including the basis upon which cause exists to inspect;
 
6.         A statement that entry has been sought and refused or the facts or circumstances reasonably showing that the purposes of the inspection or investigation might be frustrated if entry were sought without a warrant.
 
C.        Cause shall be deemed to exist if reasonable legislative or administrative standards for conducting a routine, periodic or area inspection are satisfied with respect to the location, or if there is probable cause to believe that a condition of nonconformity with a health, public protection or safety ordinance, regulation, rule, standard or order exists with respect to the particular location, or an investigation is reasonably believed to be necessary in order to determine or verify the condition of the location.
 
D.        Before issuing any administrative search warrant, the Judge shall examine the applicant or any other witness under oath and shall be satisfied of the existence of grounds for granting such application.
 
E.         If the Judge is satisfied that cause for the inspection or investigation exists and that the other requirements for granting the warrant are satisfied, the Judge may issue the administrative warrant.  An administrative search warrant shall:
 
1.         Specifically identify the actions to be taken by the Planning Director or his or her designates.
 
2.         Specifically identify who is allowed entry onto the property under the warrant, including law enforcement;
 
3.         Specifically indicate the timeframe, manner, and places to be searched, and, if necessary, things to be seized;
 
4.         Contain a direction that the administrative search warrant be executed on any day of the week between the hours of 8:00 a.m. and 5:00 p.m., or at any particular time as ordered by the Court.
 
 
 
19.19.040        Legal action.
Upon determination that voluntary compliance cannot be obtained, the Planning Director shall submit all evidence and documentation of the alleged violation to the District Attorney’s Office for prosecution or to the Board of County Commissioners for civil remedy.  [Ord. 85-1 § 15.240.]
 
19.19.040        Execution of Administrative Search Warrants.
 
A.         Except as provided in subsection B of this Section, the person authorized to execute the administrative search warrant shall, before entry, make a reasonable effort to present credentials, authority and purpose to an occupant or person in possession of the property designated in the warrant and show the warrant or a copy thereof upon request.
 
B.         The person authorized to execute the administrative search warrant need not inform anyone of the person’s authority and purpose, as prescribed in subsection A of this Section, but may promptly enter the designated location if it is vacant or not in the possession of any person or at the time reasonably believed to be in such condition.
 
C.        A peace officer may be requested to assist in the execution of the administrative search warrant.
 
D.        The inspection pursuant to the administrative search warrant shall take place in the presence of either the owner of the place or premises to be inspected or of a lawful occupant thereof over the age of eighteen (18) years, unless specified otherwise in the warrant.
 
E.         An administrative search warrant must be executed and returned to the Judge by whom it was issued within (fourteen) 14 days from its date, unless such Judge, before the expiration of such time and on motion of the applicant, extends the time for five (5) days.  After the expiration of the time prescribed by this subsection, any administrative search warrant is deemed void unless executed.
 
F.         No person shall hinder, delay, impede or otherwise interfere with any enforcement officer in the course of executing or attempting to execute an administrative search warrant which is apparently valid on its face, or making or attempting to make any inspection authorized by such warrant.
 
G.        An administrative search warrant may not be used as a pretext for entry by law enforcement for the primary purpose of conducting a criminal investigation.
 
19.19.050        Other remedies.
In addition to penalties provided by ORS 203.065, the Board of County Commissioners may utilize such remedies for violations of this title as are authorized by ORS 215.185. [ Ord. 85-1 § 15.241.]
 
19.19.050        Infraction Citation.
 
A.         Except provided in subsection (E), the Planning Director, Building Official, Public Health Director, their designates within any of the aforementioned departments, or a law enforcement officer may issue an infraction citation for violations of Title 19 of the JCC.  All infraction citations shall conform to the requirements of this section and shall be on a form provided and printed by the County.  A signed infraction citation shall be filed with the Josephine County Court charging the responsible person with a civil infraction.
 
B.         The citation shall consist of a Complaint and Summons.  The citation shall include the following:
 
1.         The name of the court and public body on whose behalf the infraction citation is being issued;
 
2.         The name of the responsible person(s) alleged to have committed the infraction;
 
3.         The name and title of the individual issuing the citation;
 
4.         The infraction or code provision which the person is to have allegedly violated;
 
5.         A brief description of the alleged infraction written so that it can be readily understood by a person making a reasonable effort;
 
6.         The date, time and place the infraction allegedly occurred;
 
7.         The amount of the fine for the alleged infraction;
 
8.         The time and place at which the person is to appear in circuit court;
 
9.         A statement by the enforcement officer to the effect that he/she has reasonable grounds to believe, and does believe, that the person cited committed the infraction.
 
C.        Any error in the citation may be corrected at a hearing or prior to the hearing upon notice to the person cited.   The citation shall be set aside by the Court due to error only upon a request by the person cited made before the close of the hearing and upon a determination that the error is prejudicial to the person’s defense.  Failure to make a request of the Court to set aside the citation before the conclusion of the hearing shall constitute a waiver and will be an absolute bar to raising this issue at a later date.
 
D.        Service of the citation shall be made in the manner prescribed for the service of summonses in Rule 7D of the Oregon Rules of Civil Procedure.
 
E.        Any open violations listed in JCC 19.19.120.A(1) and JCC 19.19.120.A(2) existing on or prior to January 1, 2016 that do not involve illegal cannabis activities as described in JCC 19.19.120.B:
            1.         Shall not be subject to the citation process as outlined in JCC           19.19.050 to         JCC 19.19.100.
            2.         Shall not be subject to further legal action or civil litigation as outlined         in JCC 19.19.110 to JCC 19.19.130.
 
 
19.19.060        Appearance by Defendant.
 
Any defendant who is issued an Infraction Citation must either:
 
            A.         Personally appear at the date, time and place set by the Summons;
 
B.         Prior to the date and time set by the Summons, enter a plea of guilty or no contest by delivering the completed Summons to the Court as directed by the Summons, with appropriate payment and any written statement; or
 
C.        Prior to the date and time set by the Summons, enter a plea of not guilty by delivering the completed Summons, as directed by the Summons, with a request for trial or hearing, prior to the date and time set by the Summons.
 
19.19.070        Consent Decree.
 
A.         At any time prior to a hearing on an infraction citation, the county and the responsible person(s) may enter into a consent decree.  The consent decree shall provide for necessary corrections to bring the property into conformance with appropriate county ordinances, without admission of violation.
 
B.         The responsible person(s), or attorney(s) if any, and the county counsel or his or her designates shall sign all consent decrees.
 
C.        The consent decree shall be filed with the court as a final adjudication of the proceedings and shall constitute a dismissal of the action upon agreed performance.  Either party may seek a court order dismissing the case upon compliance with the conditions of the consent decree.
 
D.        Failure to comply with the consent decree will allow the county to seek any additional remedies provided by state or local law.
 
19.19.080        Hearing.
 
A.         Every hearing to determine whether an infraction has occurred shall be held before the Circuit Court.
 
B.         The hearing shall be limited to the production of evidence only on the infraction alleged in the citation.
 
1.         Any relevant evidence shall be admitted.
 
2.         Oral evidence shall be taken only on oath or affirmation.
 
3.         Hearsay evidence may be used for the purpose of supplementing or explaining any direct evidence.  Hearsay evidence shall not be sufficient alone to support a finding unless such evidence would be admissible over objection in civil actions in courts of competent jurisdiction in this state.
 
C.        The person cited shall have the right to present evidence and witnesses, to cross-examine witnesses who testify against them, and to submit rebuttal evidence.
 
D.        The person cited may be represented by counsel, but counsel shall not be provided at public expense.  If defense counsel is to appear, written notice shall be provided to the designated court no later than ten (10) business days prior to the hearing date.
 
E.         The county shall have the burden of proving the infraction by a preponderance of the evidence.
 
F.         After consideration of the evidence and arguments presented at the hearing, the Court shall determine whether the infraction as alleged in the complaint has been established.  If the infraction has not been established, the Court shall enter an order dismissing the complaint.  If the infraction has been established, or the fine has been paid by the defendant, the Court shall enter a judgment consistent with its findings.
 
G.        Unless otherwise provided by ordinance, upon establishment of the commission of an infraction, the Court shall assess a fine shown on the schedule established in JCC 19.19.100.
 
H.        The County shall be entitled to recover all reasonable and necessary costs and disbursements incurred in the successful enforcement of an infraction citation, including attorney fees.  Costs shall be assessed by supplemental judgment as outlined in Rule 68 of the Oregon Rules of Civil Procedure.
 
I.          Any appeal of a determination by the Court herein shall only be by writ of review pursuant to ORS Chapter 34.
 
19.19.090        Enforcement.
 
A.         If a cited person fails to answer the summons or appear at a scheduled hearing as provided herein, the Court may enter a default judgment for the fine associated with the infraction citation.
 
B.         Fines assessed for infractions occurring on real property or for improper use of real property or liens for the costs of abatement of a public nuisance are county liens against real property and collectible in the same manner as other such debts owing to the county.
 
C.        The procedure to abate a nuisance is an additional remedy to the civil infraction citation procedure.  Imposition of a fine does not relieve a person of a duty to abate a nuisance.  Abatement of the nuisance shall not constitute a defense to the imposition of a fine for an infraction citation.
 
D.        At the Court’s discretion, any fine or cost not paid within sixty (60) days from the date of the Court’s order may be assigned to a collection agency for collection.
 
E.         At the Court’s discretion, any fine or cost not paid within sixty (60) days from the date of the Court’s order may be recorded as a lien in the county lien record.  In addition to any other remedy provided by law, recording an order in the county lien record shall have the same effect and may be enforced as provided in ORS 205.125 and 205.126.
 
19.19.100        Fines for Infraction Citation.
 
A.         A fine for an infraction citation for any violation listed in JCC 19.19.120.A shall be an assessment to pay an amount not to exceed more than $500 for each violation.
 
B.         A fine for an infraction citation for any violation listed in JCC 19.19.120.B shall be an assessment to pay an amount not to exceed more than $500 per day for each day the violation continues.
 
C.        The penalties enumerated in Subsections A and B herein are in addition to, and not in lieu of, any other remedies provided by federal, state, and local law.
 
19.19.110        Further legal action.
 
In addition to or in lieu of the remedies provided in this chapter, upon determination that voluntary compliance cannot be obtained, the Planning Director shall submit all evidence and documentation of the alleged violation to the District Attorney’s Office for prosecution or to Legal Counsel for civil remedy.
 
19.19.120        Fines upon conviction in civil litigation.
 
Any individual, corporation, or entity that violates any of the provisions of this regulation shall be, upon conviction in a court of competent jurisdiction, assessed a fine as follows:
 
A.         A fine of $1,000 for each offense for:
 
1.         Erecting or maintaining structures without a development permit required by JCC 19.41.020;
 
2.         Erecting or maintaining multiple structures as dwellings, including, but not limited to sheds, shacks, outbuildings, or garages, and allowing residents or individuals to reside therein;
 
3.         Maintaining recreational vehicles, automobiles, tents, or tarps as dwellings and allowing residents or individuals to reside therein;
 
4.         Establishing, constructing, erecting, moving, reconstructing, replacing, extending, enlarging, altering, or otherwise changing the character of land without a development permit required by JCC 19.41.020;
 
5.         Unpermitted diversion of streams, creeks, rivers, or any other waterways;
 
6.         Any other adjudicated violation of JCC Title 19.
 
B.         A fine of $1,000 per day for:
 
1.         The sale, cultivation, production, processing, wholesaling, retailing, research of cannabis, or any form of activity associated with or directly derived from a cannabis business in any zoning classification without a valid license to engage in such activities from the Oregon Liquor and Cannabis Commission (OLCC), the Oregon Medical Marijuana Program (OMMP) as administered by the Oregon Health Authority (OHA), the Oregon Department of Agriculture (ODA), and Josephine County.
 
C.        The penalties enumerated in Subsections A and B herein, are in addition to, and not in lieu of, any other remedies provided by federal, state, and local law.
 
D.        The initiation of enforcement proceedings by a Code Enforcement Officer is permissive and not mandatory. Decisions not to initiate any prosecution or a civil action are discretionary in nature and shall be made upon consideration of the severity of the alleged violation, and County staff, time, and resources necessary.
 
19.19.130        Other remedies.
 
In addition to penalties provided by ORS 203.065, the Board of County Commissioners may utilize such remedies for violations of this title as are authorized by ORS 215.185.
 
 
 
Section 2.00   CODIFICATION
 
This chapter shall be codified as JCC Chapter 19.19, entitled “Violations; Administrative Search Warrants; Citation Authority; Fines.”
 
Section 3.00   AFFIRMATION
 
Except as specifically amended by the provisions of this ordinance, the Josephine County Code, as previously adopted and amended, is hereby affirmed.
 
Section 4.00   EFFECTIVE DATE
 
First reading by the Board of County Commissioners this ___ day of September, 2021.
 
Second reading and adoption by the Board of County Commissioners at least thirteen (13) days from the first reading, this ___ day of September, 2021.  This ordinance shall take effect ninety (90) days after its adoption by the Board of County Commissioners.
 
                                                                        JOSEPHINE COUNTY
                                                                        BOARD OF COMMISSIONERS
 
                                                                        _____________________________________
                                                                        Daniel E. DeYoung, Chair
 
                                                                        _____________________________________
                                                                        Herman Baertschiger, Jr., Vice Chair
 
                                                                        ______________________________________
                                                                        Darin J. Fowler, Commissioner
 
 
APPROVED AS TO FORM:
 
_____________________________________
M. Wally Hicks, Legal Counsel