January 16, 2008, Introduced by Rep. Young and referred to the Committee on Intergovernmental, Urban and Regional Affairs.
A bill to amend 1909 PA 279, entitled
"The home rule city act,"
by amending section 4q (MCL 117.4q), as added by 2003 PA 316.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4q. (1) A city that has a population of 7,500 or more and
is located in any county, or a city that has a population of 3,300
or more and is located in a county that has a population of
2,000,000 or more, may establish an administrative hearings bureau
to adjudicate and impose sanctions for violations of the charter or
ordinances designated in the charter or ordinance as a blight
violation. The bureau may accept admissions of responsibility for
blight violations. Pursuant to a schedule of civil fines and costs,
the bureau may collect civil fines and costs for blight violations.
(2) The expense of the operation of an administrative hearings
bureau shall be borne by the city establishing the bureau.
(3) An administrative hearings bureau shall not have
jurisdiction over criminal offenses, traffic civil infractions,
municipal civil infractions, or state civil infractions. The bureau
and its hearing officers shall not have the authority to impose a
penalty of incarceration and may not impose a civil fine in excess
of $10,000.00. A city with a population of more than 750,000 that
establishes an administrative hearings bureau under this section
shall adopt the following schedule of civil fines for blight
violations to be used by the administrative hearings bureau:
(a) For a first blight violation, a civil fine of $100.00.
(b) For a second blight violation, a civil fine of $300.00.
(c) For a third blight violation, a civil fine of $700.00.
(d) For a fourth blight violation, a civil fine of $1,500.00.
(e) For a fifth blight violation, a civil fine of $3,000.00.
(f) For a sixth blight violation, a civil fine of $5,000.00.
(g) For a seventh blight violation, a civil fine of $7,500.00.
(h) For an eighth or subsequent blight violation, a civil fine
of $10,000.00.
(4) A city that establishes an administrative hearings bureau
under this section shall establish by ordinance the jurisdiction of
the bureau for adjudicating alleged blight violations, making
determinations of responsibility, and imposing sanctions upon those
found responsible for a violation. The city may designate only a
violation of any of the following types of ordinances as a blight
violation:
(a) Zoning.
(b) Building or property maintenance.
(c) Solid waste and illegal dumping.
(d) Disease and sanitation.
(e) Noxious weeds.
(f) Vehicle abandonment, inoperative vehicles, vehicle
impoundment, and municipal vehicle licensing.
(5) To initiate a proceeding for a blight violation, the city
shall issue and serve upon an alleged violator a written violation
notice on which an authorized local official records the occurrence
or existence of 1 or more blight violations by the person cited and
which directs the named person to pay a civil fine for the
violation or appear at the administrative hearings bureau as
provided in this section. A violation notice to appear at an
administrative hearings bureau shall be treated as made under oath
if the violation alleged in the notice occurred in the presence of
the authorized local official signing the violation notice and if
the notice contains the following statement immediately above the
date and signature of the official: "I declare under the penalties
of perjury that the statements above are true to the best of my
information, knowledge, and belief.". An authorized local official
may issue a violation notice to appear if, based upon
investigation, the official has reasonable cause to believe that
the person is responsible for a blight violation and if the city
attorney or an assistant city attorney approves in writing the
issuance of the violation notice.
(6) If a city has a rental inspection program with which a
landlord must register in order to rent premises for residential
purposes and if a landlord of premises rented in the city for
residential purposes is registered with the city's rental
inspection program, the city shall not issue a blight violation
notice during an inspection of the premises unless either of the
following occurs:
(a) The landlord is given a written correction notice of the
violation and a reasonable opportunity to correct the circumstances
before a reinspection of the premises or a date specified in the
notice.
(b) The violation is a direct result of the landlord's action
or inaction and creates an emergency that presents an immediate
risk of harm to people or damage to property including, but not
limited to, a flooded basement or premises without heat.
(7) A city that does not have a rental inspection program, or
does not require a landlord to register as part of a rental
inspection program, shall not issue a blight violation notice to a
landlord of premises rented in the city for residential purposes
during an inspection of the premises unless either of the following
occurs:
(a) The landlord is given a written correction notice of the
violation and a reasonable opportunity to correct the circumstances
before a reinspection of the premises or a date specified in the
notice.
(b) The violation is a direct result of the landlord's action
or inaction and creates an emergency that presents an immediate
risk of harm to people or damage to property, including, but not
limited to, a flooded basement or premises without heat.
(8) The person named in the violation notice shall appear on
or before the time specified in the violation notice and may
respond to the allegations in the notice, as follows:
(a) If the alleged violator wishes to admit responsibility for
the blight violation, the person may do so by appearing in person,
by representation, or by mail. If appearance is made by
representation or mail, the administrative hearings bureau may
accept the admission as though the person personally appeared. Upon
acceptance of the admission, a hearing officer may order any of the
sanctions permitted under this section.
(b) If the alleged violator wishes to deny responsibility for
the blight violation, or admit responsibility with an explanation,
the person may do so by appearing in person on the date scheduled
for the administrative hearing for the purpose of adjudicating the
alleged violation.
(c) If the alleged violator fails to appear, a decision and
order of default may be entered.
(9) If an admission of responsibility is not made and the
civil fine and costs, if any, prescribed by charter or ordinance
for the violation are not paid at the administrative hearings
bureau, and the alleged violator fails to appear at a hearing
scheduled in accordance with this section, a final decision and
order of responsibility in the amount of the prescribed civil fine
and costs may be issued by the administrative hearings bureau.
(10) The city establishing an administrative hearings bureau
shall establish rules and procedures for an alleged violator to set
aside the entry of a decision and order of default.
(11) The ordinance establishing the bureau shall provide for
adjudicatory hearings by hearing officers. Each hearing officer
shall be an attorney licensed to practice law in this state for at
least 5 years. Hearing officers shall be appointed in a manner
consistent with the charter of the city for the appointment of
other municipal officers or employees and shall only be removed for
reasonable cause. Before conducting administrative adjudication
proceedings, administrative hearing officers shall successfully
complete a formal training program which includes all of the
following:
(a) Instruction on the rules of procedure of the
administrative hearings that they will conduct.
(b) Orientation to each subject area of the ordinance
violations that they will adjudicate.
(c) Observation of administrative hearings.
(d) Participation in hypothetical cases, including ruling on
evidence and issuing final orders.
(e) The importance of impartiality in the conduct of the
administrative hearing and adjudication of the violation.
(f) Instructions on the preparation of a record that is
adequate for judicial review.
(12) The authority and duties of a hearing officer shall
include all of the following:
(a) Hearing testimony and accepting evidence that is relevant
to the existence of the blight violation.
(b) Issuing subpoenas directing witnesses to appear and give
relevant testimony at the hearing, upon request of a party or a
party's attorney.
(c) Preserving and authenticating the record of the hearing
and all exhibits and evidence introduced at the hearing.
(d) Issuing a determination, based upon the evidence presented
at the hearing, whether a blight violation exists. The
determination shall be in writing and shall include written
findings of fact, a decision, and an order. The city shall have the
burden of establishing the responsibility of the alleged violator
by a preponderance of the evidence. Unless the burden is met, the
matter shall be dismissed. A decision and an order shall not be
made except upon consideration of the record as a whole or a
portion of the record as may be cited by any party to the
proceeding and as supported by and in accordance with the
competent, material, and substantial evidence. A decision and order
finding the alleged violator responsible for the violation shall
include the civil fine, if any, or any action with which the
violator must comply, or both.
(e) Imposing reasonable and proportionate sanctions consistent
with applicable ordinance provisions and assessing costs upon a
finding that the alleged violator is responsible for the alleged
violation. The maximum monetary civil fine allowed under this
section excludes costs of enforcement or costs imposed to secure
compliance with the city's ordinances and is not applicable to
enforce the collection of any tax imposed and collected by the
city.
(13) In addition to fines and costs imposed under subsection
(12), the hearing officer shall impose a justice system assessment
of $10.00 for each blight violation determination. Upon payment of
the assessment, the city shall transmit the assessment collected to
the state treasury to be deposited into the justice system fund
created in section 181 of the revised judicature act of 1961, 1961
PA 236, MCL 600.181.
(14) A party shall be provided with the opportunity for a
hearing during which they may be represented by counsel, present
witnesses, and cross-examine witnesses. A party may request the
hearing officer to issue subpoenas to direct the attendance and
testimony of relevant witnesses and the production of relevant
documents. Hearings shall be scheduled with reasonable promptness,
except that for hearings scheduled in all nonemergency situations
the alleged violator if he or she requests shall have at least 14
days after service of process to prepare for the hearing. For
purposes of this subsection, "nonemergency situation" means any
situation that does not reasonably constitute a threat to the
public interest, safety, or welfare. If service is provided by
first-class mail, the 14-day period begins to run on the day that
the notice is deposited in the mail.
(15) In an administrative hearing under this section, the
rules of evidence as applied in a nonjury civil case in circuit
court shall be followed as far as practicable, but the hearing
officer may admit and give probative effect to evidence of a type
commonly relied upon by reasonably prudent persons in the conduct
of their affairs. Irrelevant, immaterial, or unduly repetitious
evidence may be excluded. Effect shall be given to the rules of
privilege recognized by law. Objections to offers of evidence may
be made and shall be noted in the record. Subject to these
requirements, the hearing officer, for the purpose of expediting
hearings and when the interests of the parties will not be
substantially prejudiced thereby, may provide in an administrative
hearing or by rule for submission of all or part of the evidence in
written form.
(16) Any final decision by a hearing officer that a blight
violation does or does not exist constitutes a final decision and
order for purposes of judicial review and may be enforced in the
same manner as a judgment entered by a court of competent
jurisdiction.
(17) A party may file an appeal within 28 days after entry of
the decision and order by the hearing officer. An appeal of a final
decision and order of an administrative hearing officer is to the
circuit court.
(18) An alleged violator who appeals a final decision and
order to circuit court shall post with the administrative hearings
bureau, at the time the appeal is taken, a bond equal to the fine
and costs imposed. A party who has paid the fine and costs is not
required to post a bond. If a party who has posted a bond fails to
comply with the requirements of supreme court rules for an appeal
to the circuit court, the appeal may be considered abandoned, and
the bureau may dismiss the appeal on 7 days' notice to the parties.
The administrative hearings bureau must promptly notify the circuit
court of a dismissal, and the circuit court shall dismiss the claim
of appeal. If the appeal is dismissed or the decision and order are
affirmed, the administrative hearings bureau may apply the bond to
the fine and costs. An appeal by the city must be asserted by the
city's attorney and a bond is not required.
(19) An appeal to circuit court shall be a review by the court
of the certified record provided by the administrative hearings
bureau. Pending appeal, and subject to the bond requirement under
subsection (18), the hearing officer may stay the order and any
sanctions or costs imposed. Once an appeal is filed, and subject to
the bond requirement under subsection (18), the court may stay the
order and any sanctions or costs imposed. The court, as
appropriate, may affirm, reverse, or modify the decision or order,
or remand the matter for further proceedings. The court shall hold
unlawful and set aside a decision or order of the hearing officer
if substantial rights of an alleged violator have been prejudiced
because the decision or order is any of the following:
(a) In violation of the constitution or a statute, charter, or
ordinance.
(b) In excess of the authority or jurisdiction of the agency
as conferred by statute, charter, or ordinance.
(c) Made upon unlawful procedure resulting in material
prejudice to a party.
(d) Not supported by competent, material, and substantial
evidence on the whole record.
(e) Arbitrary, capricious, or clearly an abuse or unwarranted
exercise of discretion.
(f) Affected by other substantial and material error of law.