§ 22-375. Violations and enforcement.

(a)

Violations.

(1)

A violation of any provision of this article is punishable as provided in chapter 1 of this Code and in accordance with any resolution establishing proposed fines for violations of ordinances of the city.

(2)

In addition, a rental license for the leased dwelling unit which is the subject of the violation may be suspended or revoked upon the determination of the community development director or its authorized representative that such violation directly affects the health, safety and welfare of the occupants. In the event of the suspension or revocation of the rental license, the dwelling unit shall comply with the provisions of this article before the license is reinstated or a new license may be issued.

(3)

In addition, in the event of a violation, a rental license for the leased dwelling unit which is the subject of an over-occupancy violation may be suspended or revoked upon a determination of the community development director or its authorized representative that a previous verified incident of over-occupancy concerning the dwelling unit has occurred while the leased dwelling unit was owned by the present owner.

(b)

Enforcement.

(1)

Notices and orders.

a.

Notice to person responsible. Whenever the community development director determines there is a verified incident of over-occupancy, notice may be given as provided below to the person responsible for the violation.

b.

Form. Notices shall be in accord with all of the following:

1.

Be in writing.

2.

Include a description of the real estate sufficient for identification.

3.

Include a statement of the violation or violations and why the notice is being issued.

4.

Include a correction order allowing 30 days to correct the over-occupancy of the dwelling unit.

5.

Inform the property owner or agent of the right to appeal.

c.

Method of service. Such notice shall be deemed to be properly served if a copy thereof is:

1.

Delivered personally to the owner or agent; or

2.

Sent by certified or first-class mail addressed to the last known address of the owner or agent; or

3.

If the notice is returned showing that the letter was not delivered, a copy thereof shall be posted in a conspicuous place in or about the structure affected by such notice; or

4.

Serviced by the sheriff, police department or a duly authorized process server.

d.

Notice of suspension or revocation of rental housing license. Upon suspension or revocation of the rental housing license, the community development department shall notify the owner and the occupants in writing. The notice shall state the reason for the suspension or revocation of the rental housing license, a statement of required corrective actions or, alternatively, that the dwelling must be vacated within 30 days of the date of notice, and notice that the owner may appeal the suspension or revocation of the rental dwelling license in the manner provided in this article.

e.

A rental housing license may be suspended or revoked upon a determination of the community development department that a previous verified incident of over-occupancy concerning the leased dwelling unit occurred while the leased dwelling unit was owned by the present owner.

(2)

Appeals.

a.

Application for appeal. The owner of a rental dwelling unit which is the subject of a decision or order of the community development department concerning the suspension or revocation of a rental housing license shall have the right to appeal. The party who wishes to appeal is referred to as the "appellant." An independent hearing examiner, who must be a member in good standing of the State Bar of South Dakota, shall be assigned by the city to hear the appeal.

b.

Appeals shall be commenced by filing a written notice of appeal with the Community Development Department of the City of Brookings either in person or postmarked within 15 days of the decision of the community development director to suspend or revoke a rental dwelling license. The written notice of appeal shall be printed legibly or typed and shall contain the following information:

1.

A description of the decision being appealed;

2.

The reasons the appellant believes the decision is objectionable, incorrect or illegal;

3.

The name, address and telephone number of the appellant;

4.

If the appellant is to be represented by a legal representative, the name, address and telephone number of the representative; and

5.

The signature of the appellant, legal representative or agent.

c.

If the appellant complies with the jurisdictional requirements for an appeal, then the city will take no further action to enforce the penalty or result until the hearing examiner renders a final decision. However, the provisions for prior notice and hearing may be dispensed with when, in the opinion of the community development director, immediate action is necessary to summarily abate a dangerous condition on public or private property or there is an imminent threat to life or safety on public or private property. The director shall take only such action as is reasonably necessary to summarily abate the danger, and then the city will take no further action to enforce the penalty or result until the hearing examiner renders a final decision.

d.

The community development director, or their designee, shall immediately deliver a copy of the appeal to the city attorney who will act as legal counsel for the city.

e.

Time of hearing and notice. Upon the suspension or revocation of the rental housing license, the community development director shall notify the owner and the occupants of the leased rental unit in writing. The notice shall state the reason for the suspension or revocation, a statement of required corrective actions, that the dwelling must be vacated within 30 days of the date of notice, and that the owner may appeal to the board in the manner provided in this article. A hearing shall be held on all appeals within 30 days after the filing of the appeal, unless a later date is scheduled by the hearing examiner upon a showing of good cause why the matter should be scheduled beyond that date. The city attorney's office shall cause written notice of the date, time and place of the hearing to be served upon the appellant by personal service, certified or first class mail to the address set forth in the notice of appeal at least 15 days before the hearing date. If the notice of hearing is sent by certified mail and is returned unsigned, then service shall be deemed effective pursuant to first class mail, provided the notice of hearing sent by first class mail is not returned.

f.

Hearing procedures. The following rules shall govern the procedures for the hearing of the appeal.

1.

Hearings and administrative appeals shall be governed by the rules of civil procedure and the rules of evidence as set forth in the South Dakota Codified Laws (SDCL). However, the foundational requirements of SDCL 19-16-10 and SDCL 19-16-12 will not be required as long as the hearing examiner is reasonably satisfied regarding the source of the document(s).

2.

Oral evidence shall be taken only on oath or affirmation.

3.

The hearing examiner shall administer oaths or affirmations to witnesses.

4.

The city bears the burden of proof at the hearing. The standard of proof to be used by the hearing examiner is by a preponderance of the evidence.

5.

The proponent of any testimony to be offered by a party or witness who does not proficiently speak the English language shall provide an interpreter. The interpreter shall be approved by the independent hearing examiner conducting the proceeding as proficient in the English language and the language in which the witness will testify. The cost of the interpreter is to be paid by the party providing the interpreter.

g.

Rights of parties at hearing. The appellant, the community development director, and any other party to an appeal shall have these rights among others:

1.

To call and examine witnesses on any matter relevant to the issues of the hearing;

2.

To introduce documentary and physical evidence;

3.

To cross examine opposing witnesses on any matter relevant to the issues of the hearing;

4.

To rebut evidence;

5.

To subpoena witnesses to appear and give testimony on that party's behalf or to produce records, books, papers and documents relating to any matters related to the hearing. Any application for a subpoena shall be submitted to the hearing examiner for consideration at least ten days in advance of the hearing. The hearing examiner shall not unreasonably refuse to issue the requested subpoena. Any subpoena must be issued and served no later than five days before the scheduled time of the hearing. All costs related to the subpoena, including the witness fee and mileage fee at the rate provided by statute, SDCL Ch. 19-5, shall be paid by the party requesting the subpoena;

6.

Any party who fails to appear at the hearing is deemed to waive the right to a hearing and the adjudication of the issues related to the hearing, provided that proper notice of the hearing has been provided; and

7.

The hearing examiner shall cause to be made a record of the hearing, either stenographically or by sound or video recording, and shall make available a recording of the hearing to any person upon request and payment in advance of the estimated cost of the recording.

h.

Decision. After each appeal hearing, the hearing examiner shall perform the following:

1.

Make written findings of fact; and

2.

Based upon the written findings and conclusions, either sustain, remand for further hearing or action or rescind the decision of the community development department.

i.

Reports, costs. A written report of the decision, including the findings of fact, shall be served either in person or by first class mail upon the appellant and upon the city within 15 working days from the date the appeal hearing is concluded. The city and the appellant shall bear their own respective costs of the appeal proceeding, except as specifically provided herein.

j.

Subject to judicial review. The final decision of the hearing examiner may be subject to judicial review as provided by law. If judicial review has been commenced by the aggrieved party within 30 days after the final decision has been entered by the hearing examiner, or as otherwise provided by law, the city will take no further action to enforce the suspension or revocation of the rental dwelling license until the civil action is completed with the exception of those matters which require immediate abatement as set forth in section 22-375(a)(2).

k.

Filing fees. The filing fee for an appeal shall be $100.00 for each appeal filed by an owner, payable to the City of Brookings.

(Ord. No. 18-13, § II, 10-22-2013 ; Ord. No. 18-14 , § I, 8-12-2014)