22.03.010 Authority of the Code Hearings Officer to Adopt Rules, Procedures, and Forms.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. In addition to any procedure set forth elsewhere in this Code, Code enforcement proceedings before the Code Hearings Officer shall be conducted in accordance with the procedure set forth in this Chapter. The Code Hearings Officer may promulgate rules and regulations, not inconsistent with this Chapter, concerning procedure and the conduct of hearings.
B. The Code Hearings Officer is authorized to adopt rules, procedures, and forms to implement the provisions of Title 22.
C. Adoption of Rules.
1. The Code Hearings Officer may adopt rules pertaining to matters within the scope of Title 22.
2. Prior to the adoption of any rule by the Code Hearings Officer, reasonable public notice of the proposed rules shall be given not less than 30 days prior to the adoption of such rules. Such notice shall include a brief description of the proposed rules, the location at which copies of the full text of the proposed rules may be obtained, and the method of submitting written testimony or comment regarding the proposed rules.
3. Prior to adopting the rules, the Code Hearings Officer shall review and consider all written testimony and comments received and may adopt the proposed rules or modify or reject them. If a substantial modification of the proposed rules is made, no additional public notice need be given, but notice of the proposed modifications shall be given to all persons submitting written testimony or comments and all other persons requesting such notification, and a reasonable opportunity for additional written testimony and comment shall be provided.
4. Unless otherwise stated, all rules shall be effective upon adoption by the Code Hearings Officer and shall be filed with the Auditor’s Office. Copies of all current rules shall be made available to the public upon request. If any person feels aggrieved by any such rule, they may appeal to the Council for its amendment or repeal by filing with the Auditor a petition which shall be presented to the Council at its next regular meeting. But until amended or repealed by the Council, such rule shall be in full force and effect.
5. Notwithstanding Subsections 2. and 3. of this section, the Code Hearings officer may adopt interim rules without prior notice upon a finding that failure to act promptly will result in prejudice to the public interest or to the interest of affected parties.
Any rule adopted pursuant to this subsection shall be effective for a period of not more than 180 days.
22.03.020 Initiation of Proceeding.
(Amended by Ordinance Nos. 174444 and 190387, effective May 5, 2021.)
A. A proceeding before the Code Hearings Officer may be initiated only as specifically authorized elsewhere in the Code.
B. Except as provided in Sections 22.10.030 and 22.20.010 of this Title, a proceeding before the Code Hearings Officer shall be initiated only by the City filing a complaint with the Office of the Code Hearings Officer in accordance with the procedures established by that Office. The complaint shall contain:
1. The name(s) of the Respondent(s).
2. The address or location at which the violation is alleged to have occurred.
3. A short and plain statement of the alleged violations, including a reference to the particular statutes, rules, or regulations involved.
4. The nature of the relief sought by the City.
5. The City bureau(s) initiating the proceeding and the name, title, and signature of the person initiating the proceeding on behalf of the City.
6. Such other information as the Hearings Officer may require.
22.03.025 Setting of Hearings.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. Upon filing of a complaint, the Code Hearings Officer shall specify a time, date, and place for a public hearing on the complaint and the matters alleged therein. A complaint shall be deemed filed upon it being Received by the Code Hearings Office in accordance with the Hearings Office’s administrative rules.
B. The date set for hearing shall be not less than 14 days nor more than 30 days after the date the complaint is filed, except that the Code Hearings Officer may specify a date for hearing less than 14 days after the complaint is filed where it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or to the life, health, safety, welfare, or property of any person. The time frames set forth in this section are waived if the hearing is postponed.
C. The Code Hearings Officer may postpone, continue, set over, or reschedule any hearing with the consent of all parties or on the motion of any party for good cause shown. The time frames set forth in Subsection 22.03.025 B. above are waived if the hearing is postponed.
D. The Code Hearings Officer may postpone or reschedule any hearing on their own motion when the Mayor of Portland or the Governor of Oregon declares an emergency and the Code Hearings Officer finds that the nature of the emergency prevents the Hearings Office from conducting a hearing. The time frames set forth in Subsection 22.03.025 B. above are waived if the hearing is postponed or rescheduled.
22.03.030 Notice of Hearing.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. The City shall give notice of the hearing, together with a copy of the complaint, a list of violations, statement of rights, and any participation instructions to the Respondent(s) and all other parties, not less than 10 calendar days prior to the date set for hearing except that the Code Hearings Officer may set a shorter period when it appears that the alleged violation poses an immediate and serious hazard to the public health, safety, or welfare or the life, health, safety, welfare, or property of any person. When the City is providing notice of the hearing by United States Postal Service mail, then 3 business days must be added to the deadline above.
B. The notice of hearing shall specify the time, date, and place set for the hearing.
C. Notice may be given by any method or combination of methods which, under the circumstances, is reasonably likely to apprise the parties of the hearing. Notice may be given by:
1. Personally delivering the notice to the party(ies), or
2. Mailing the notice by United States Postal Service mail, postage prepaid, and addressed to the residence or business address of the party(ies), or
3. Any method authorized by the Oregon Rules of Civil Procedure for the service of summons, or
4. Any other method, including electronic mail (email), when authorized by the hearings officer, by rule or otherwise.
5. If notice is given by United States Postal Service mail, such notice shall be deemed given and received three days (Sundays and holidays not included) after the notice is deposited in the United States mail.
D. Notice of the hearing and a copy of the complaint shall also be given to:
1. The tenants, residents, and lessees of any building, property, or structure if the City has requested in the complaint the vacation, closure, or demolition of the building, property, or structure or if the Code Hearings Officer determines that such vacation, closure, or demolition is a reasonably possible outcome of the proceeding.
2. Any other person who reasonably appears to have a financial interest in the property involved and who it reasonably appears may be adversely affected by any determination, decision, or order of the Code Hearings Officer.
3. Any person who has requested such notification. The Code Hearings Officer may provide by rule, as provided by Section 22.03.010, for the manner and means of giving notice to such persons in a manner reasonably calculated to provide such persons with actual notice of the proceedings.
E. The failure of any person to receive actual notice of the proceeding shall not invalidate the hearing or any determination, decision, or order of the Code Hearings Officer.
22.03.040 Notice; Rights; Procedure.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. Prior to the commencement of a contested hearing, the Code Hearings Officer shall inform each party to the hearing of the following matters:
1. A general description of the hearing procedure including the order of presentation of evidence, what kinds of evidence are admissible, whether objections any be made to the introduction of evidence and what kind of objections may be made, and an explanation of the burdens of proof or burdens going forward with the evidence.
2. That a record will be made of the proceedings and the manner of making the record and its availability to the parties.
3. The function of the record‑making with respect to the perpetuation of the testimony and evidence and with respect to any appeal from the determination or order of the Code Hearings Officer.
4. Whether an attorney will represent the City in the matters to be heard and whether the parties ordinarily and customarily are represented by an attorney.
5. The title and function of the Code Hearings Officer, including the effect of and authority for the Code Hearings Officer’s determination.
6. In the event a party is not represented by an attorney, whether the party may, during the course of proceedings, request a recess if at that point the party determines that representation by an attorney is necessary to the protection of the party’s rights.
7. Whether there exists an opportunity for an adjournment at the end of the party then determines that additional evidence should be brought to the attention of the Code Hearings Officer and the hearing is reopened.
8. If the Code Hearings Officer determines, upon a party’s motion or sua sponte, that a party should bring additional evidence to the Code Hearings Officer’s attention, the Code Hearings Officer will also announce the method for submission (a continued hearing or post-hearing submission), and whether there will be an opportunity for the other party to respond. The Hearings Office may provide represented parties with less latitude or leniency than pro se litigants.
9. A description of the appeal or judicial review process from the determination or order of the Code Hearings Officer.
B. The information required to be given to a party to a hearing under Subsection A. of this Section may be given in writing or orally before commencement of the hearing.
C. The failure to give notice of any item specified in Subsection A. of this Section shall not invalidate any determination or order of the Code Hearings Officer unless on appeal from or review of the determination or order a court finds that the failure affects the substantive rights of the complaining party. In the event of such a finding, the court shall remand the matter to the Code Hearings Officer for a reopening of the hearing and shall direct the Code Hearings Officer as to what steps shall be taken to remedy the prejudice to the rights of the complaining party.
22.03.050 Hearings Procedure.
(Amended by Ordinance Nos. 173369 and 190387, effective May 5, 2021.)
A. Unless precluded by law, informal disposition of any proceeding may be made, with or without a hearing, by stipulation, consent order, agreed settlement, or default. However, after issuance of a notice of hearing, no building occupied as a residential structure may be vacated based on an informal disposition unless approved by the Code Hearings Officer.
B. Parties may elect to be represented by counsel and to respond to and present evidence and argument on all issues involved.
C. An order adverse to a party may be issued upon default only upon a prima facie case made on the record before the Code Hearings Officer.
D. Testimony shall be taken upon oath or affirmation of the witness from whom received. The Code Hearings Officer may administer oaths or affirmations to witnesses.
E. The Code Hearings Officer shall place on the record a statement of the substance of any written or oral Ex Parte communications made to the Code Hearings Officer on a fact in issue during the pendency of the proceedings. The Code Hearings Officer shall notify the parties of the communication and of their right to rebut such communications.
F. The record in a proceeding before the Code Hearings Officer shall include:
1. All pleadings, motions, and intermediate rulings;
2. Evidence received or considered;
3. Stipulations;
4. A statement of matters officially noticed;
5. Questions and offers of proof, objections, and rulings thereon;
6. A statement of any Ex Parte communications on a fact in issue made to the Code Hearings Officer during the pendency of the proceedings;
7. Proposed findings and exceptions; and
8. Any proposed, intermediate, or final order prepared by the Code Hearings Officer.
G. A verbatim, written, mechanical, or electronic record shall be made on all motions, rulings, and testimony.
22.03.060 Depositions or Subpoena of Material Witness; Discovery.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. On petition of any party, the Code Hearings Officer may order that the testimony of any material witness be taken by deposition in the manner prescribed by law for depositions in civil actions. Depositions may also be taken via audio or audio‑visual recordings. The petition shall set forth the name and address of the witness whose testimony is desired, a showing of the materiality of the witness’ testimony, and a request for an order that the testimony of such witness be taken before an officer named in the petition for that purpose. If the witness resides in this State and is unwilling to appear, the Code Hearings Officer may issue a subpoena, to require the appearance of the witness at the hearing or deposition.
B. The Code Hearings Officer may, by rule, prescribe other methods of discovery which may be used in proceedings before the Hearings Officer.
22.03.070 Subpoenas.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. The Code Hearings Officer shall issue subpoenas to any party upon showing of general relevance and reasonable scope of the evidence sought. The hearings office may make available a form with the information required to make this showing. Witnesses appearing pursuant to subpoena, other than the parties or officers or employees of the City, shall receive fees and mileage as prescribed by law for witnesses in civil actions. Unless a witness expressly declines payment of fees and mileage, the witness's obligation to appear is contingent on the payment of fees and mileage.
B. A subpoena may be served by a party, the party's attorney, or any other person who is 18 years of age or older. Service may be accomplished by personal service of a true copy of the subpoena upon the witness or an agent of the witness authorized to receive the subpoena; substituted service by leaving a true copy of the subpoena at a person's dwelling house or usual place of abode with a person over 14 years of age; office service by leaving true copies of the subpoena with a person who is apparently in charge of an office; or service by United States Postal Service mail if the witness consents to this method.
C. If any person fails to comply with any subpoena so issued or any party or witness refuses to testify on any matters on which the person may be lawfully interrogated, the judge of the Circuit Court of any county, on the application of the Code Hearings Officer, or of a designated representative of the Code Hearings Officer or of the party requesting the issuance of the subpoena, shall compel obedience by proceedings for contempt as in the case of disobedience of the requirements of subpoena issued from such court or a refusal to testify therein.
22.03.075 Discovery of Documents and Things
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. On petition of any party and a showing of the general relevance of the documents or things sought, the Code Hearings Officer may enter an order directing any party to produce and make available to the petitioning party to inspect and copy any documents or to inspect and copy, test, or sample any things which are in the possession of a party. The hearings office may make available a form with the information required to make this showing.
B. The order directing a party to produce and make available documents or things may require the petitioning party to pay the party producing documents and things that party’s reasonable costs associated with such production.
C. The Code Hearings Officer shall not enter an order requiring a party to produce any document or thing which is privileged under the rules of privilege recognized by law or which is exempt from disclosure under the Oregon Public Records Law.
22.03.080 Evidence.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded. Erroneous rulings on evidence shall not preclude action by the Code Hearings Officer on the record unless the error is shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible. The Code Hearings Officer shall give effect to the rules of privilege recognized by law. Objections to evidence may be received in written form or orally at the hearing on the record.
B. All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in Subsection D of this Section, no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies of excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.
C. Every party shall have the right of cross‑examination of witnesses who testify and shall have the right to submit rebuttal evidence.
D. The Code Hearings Officer may take notice of judicially recognizable facts, as well as general, technical, or scientific facts within the specialized knowledge of City employees. Parties shall be notified at any time during the proceeding, but in any event prior to the final decision, of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed.
E. No sanction shall be imposed or order issued except upon consideration of the whole record as supported by, and in accordance with reliable, probative, and substantial evidence.
22.03.090 Continuance of Tenancy.
(Amended by Ordinance No. 190387, effective May 5, 2021.) After issuance of a notice of hearing, and until such time as the Code Hearings Officer issues a final decision, neither the Respondent(s) nor the bureau initiating the hearing shall take any action that results in the vacation of a building used for residential occupancy without the permission of the Code Hearings Officer, except that in cases where buildings are found to be imminently hazardous, the building official or Chief Fire Marshal may order the building vacated if no other means are available to eliminate the imminent hazard.
22.03.100 Proposed and Final Orders.
The Code Hearings Officer shall prepare and mail to all parties, a proposed order including findings of fact and conclusions of law. The proposed order shall become final on the date specified in the order, which date shall not be less than 14 days after such mailing, unless the Code Hearings Officer finds that an existing violation is imminently dangerous to the health, safety, or property of any person or of the public, in which case the order may specify an earlier date.
22.03.110 Orders.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. Every order adverse to a party to the proceeding shall be in writing or stated in the record and may be accompanied by an opinion.
B. Unless otherwise stipulated, a final order shall be accompanied by findings of fact and conclusions of law. The findings of fact shall consist of a concise statement of the underlying facts supporting the findings as to each contested issue of fact and as to each ultimate fact required to support the Code Hearings Officer’s order. The findings of fact and conclusions of law may be orally stated on the record by the Code Hearings Officer and those findings and conclusions incorporated in the written order by reference.
C. The Code Hearings Officer shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party or, if applicable, the party’s attorney of record.
D. Every final order shall include either a citation of the Oregon Revised Statutes or other applicable ordinances under which the order may be appealed or judicially reviewed.
22.03.115 Petitions For Reconsideration, Rehearing.
(Amended by Ordinance No. 190387, effective May 5, 2021.)
A. A party may file a petition for reconsideration or rehearing on a final order with the Code Hearings Officer within 30 days after the order is mailed.
B. The petition shall set forth the specific ground or grounds for requesting the reconsideration or rehearing. The petition may be supported by written argument. A motion for reconsideration cannot be used to expand the record as stated in Subsection F.
C. The Code Hearings Officer may grant a request for reconsideration if good and sufficient reason therefor appears. If the petition is granted, an amended order shall be issued. Good and sufficient cause may include, but is not limited to, any of the following: an intervening change in controlling law, a clear error of law, plainly incorrect or irrational reasoning, a failure to consider evidence, a need to prevent manifest injustice.
D. The Code Hearings Officer may grant a rehearing petition if good and sufficient reason therefor appears. The rehearing may be limited by the Code Hearings Officer to specific matters. If a rehearing is held, an amended order may be issued.
E. The Code Hearings Officer, at any time, upon its own motion, and upon a showing of due diligence, may set aside, modify, vacate, or stay any final order, or re‑open any proceeding for additional hearing when necessary to prevent a clear and manifest injustice to a party or other person adversely affected by such order.
F. A motion for reconsideration cannot rely on new evidence (that is, evidence that was not previously submitted before the close of the record) unless the proponent of the evidence demonstrates the evidence was not reasonably discoverable with due diligence prior to the close of the record.