Hearings

(a)

The owner, or authorized representative, of a roll-off/container that has been seized and impounded pursuant to subsections 22-93(a)(2) or 22-93(a)(3) of this chapter, may file a written request with the department of hearing boards for a preliminary hearing within ten days from the date the department's notice is mailed.

(1)

The hearing shall be scheduled before a special master of the city within ten days of receipt of the written request, excluding Saturdays, Sundays, and legal holidays.

(2)

At the hearing, the city shall have the burden to show that probable cause existed to believe that the roll-off/container constituted a public nuisance under chapter 22 of the City Code and was subject to seizure and impoundment pursuant to subsection 22-93(a)(2). If the roll-off/container was immediately seized and impounded pursuant to subsection 22-93(a)(3), the city shall have the burden of showing that probable cause existed to believe that the roll-off/container constituted a public nuisance under chapter 22 of the City Code and posed a health and safety concern.

(3)

The formal rules of evidence shall not apply at the hearing and hearsay and circumstantial evidence is admissible.

(4)

If, after the hearing, the special master determines that the city has met its burden, as set forth by subsection (a)(2), the special master shall order the continued impoundment of the roll-off/container, if applicable, and set the date for a final hearing. The owner, or authorized representative, may immediately retrieve the roll-off/container from the department upon the posting of a cash bond with the department in the amount of $500.00 without impairing the right to a final hearing.

(5)

If, after the hearing, the special master determines that probable cause did not exist, the roll-off/container shall be released forthwith to the owner, or authorized representative, without the imposition of the administrative civil penalty. If the owner, or authorized representative, has already posted a bond for the immediate release of the roll-off/container, the bond shall be refunded to the owner or authorized representative.

(b)

The final hearing shall be scheduled and held, unless continued by order of the special master, no later than 30 days after the date that the roll-off/container was seized and impounded. At the final hearing, the city shall have the burden of showing by clear and convincing evidence that the roll-off/container constituted a public nuisance under chapter 22 of the City Code. If the roll-off/container was seized and impounded pursuant to subsection 22-93(a)(3), then the city must also show by clear and convincing evidence that the roll-off/container posed a health and safety concern. If, after the hearing, a finding is made that the roll-off/container was properly impounded and seized, then the special master shall enter an order finding the owner of the roll-off/container civilly liable to the city for an administrative civil penalty of up to $500.00, as outlined in subsections 22-93(a)(2)h. or 22-93(a)(3)g., plus costs incurred by the department. If, after the hearing, a finding is made that the city did not meet its burden of proof as set forth in this subsection, the roll-off/container shall be returned to the owner along with any cash bond posted.

(Ord. No. 13317, § 2, 3-8-12)