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HomeMy WebLinkAboutRemus Suciu Code Denis Law Ariv City Of ` ty Mayor l .0;� �o� City Clerk -Jason A.Seth,CMC September 26, 2016 Remus Suciu 1924 Aberdeen Avenue NE Renton, WA 98056 Re: Hearing Examiner Decision, FOV#: 15-000562 Dear Mr. Suciu: I have attached the Hearing Examiner's Decision dated September 23, 2016, in the above referenced matter. If you have any questions or concerns, please feel free to contact me. Sincerely, "WI Jason A. eth, CMC City Clerk Attachment cc: Hearing Examiner Craig Burnell, Building Official Donna Locher, Code Compliance Inspector Tim Lawless, Code Compliance Inspector Robert Shuey, Code Compliance Inspector 1055 South Grady Way• Renton,Washington 98057 • (425)430-6510/Fax(425)430-6516• rentonwa.gov low %me BEFORE THE HEARING EXAMINER OF RENTON DECISION FILE NUMBER: FOV#: 15-000562 ADDRESS: 1924 Aberdeen Ave NE Renton, WA 98056-2628 APPELLANT: Remus Suciu DBA Auto Boat Cargo Transport 1924 Aberdeen Ave NE Renton, WA 98056-2628 REVIEW AUTHORITY: City of Renton TYPE OF CASE: Finding of Violation RULING: Appeal Sustained; Finding of Violation Reversed INTRODUCTION Remus Suciu appeals a Finding of Violation violating RMC 4-9-090,the City's home occupation standards, for parking a commercial vehicle outdoors contrary to the terms of a home occupation permit. Mr. Suciu's appeal is sustained and the Finding of Violation is overturned. The appeal is sustained because the Finding of Violation asserts a different violation than the Warning of Violation. The Warning of Violation is based upon the assertion that Mr. Suciu had a commercial trailer parked on his driveway. Based upon photographs and vehicle records, this decision determines that the vehicle that is the subject of the Warning of Violation is not the same vehicle that is the subject of the Finding of Violation. The Warning of Violation is based upon a violation date of 9/15/15 when a semi-trailer was parked on Mr. Suciu's driveway. The Finding of Violation is based upon another violation date (6/27/16) when Mr. Suciu had a boat trailer parked on his driveway instead of the semi-trailer. As noted in a prior decision, the Finding of Violation must be based upon the same violation as the Warning of Violation. In this case the vehicle for the Finding of Violation was different than the vehicle for the Warning of Violation,hence they are two different violations. This is the second code violation case in a row where an appeal has been sustained for failure to provide a required Warning of Violation prior to issuance of a Finding of Violation. There is 'Note that the Finding of Violation could not be based upon the 9/15/15 violation date because the City had given Mr. Suciu six months to remove the trailer(apparently from the 9/15/15 Warning date—Se. Ex.2,p.4). As best as can be ascertained,the Appellant did remove the 9/15/15 trailer from the driveway within the required six months. Code Enforcement Decision- 1 %ow some room to argue that since Mr. Suciu violated the same code section, albeit with different vehicles, that each of these two violations should be considered the same violation and that a Warning of Violation for the first vehicle should satisfy notice requirements for the second vehicle. Unfortunately, the code just isn't written that way for the reasons outlined in this decision. At the very best, the code is subject to more than one reasonable interpretation on this issue. Faced with multiple reasonable interpretations, a court is unlikely to adopt the interpretation that works against a code compliance defendant if the defendant could reasonably claim he understood the code to give him the right to a prior Warning of Violation. It is recognized that the way the code is written makes it very difficult to deal with repeat offenders. If Mr. Suciu is indeed a repeat offender as alleged by the City, he can continue to repeatedly violate the conditions of his home occupation permit and just stop each particular incidence once he gets a Warning of Violation, thereby completely avoiding monetary penalties. However, RMC 1-3-1(D) authorizes the City to revoke Mr. Suci's home occupation permit if these violations continue to occur. If the City can successfully prove that all of the past violations alleged in the exhibits of this case have in fact occurred, Mr. Suciu could face a very real possibility of losing his home occupation permit. No prior Warnings of Violation would be necessary for this to happen. Mr. Suciu should keep this in mind if he has any intention of playing games with the City's code enforcement system. The City is invited to request reconsideration on the Warning of Violation issue if it believes that the examiner has misconstrued the code. It is recognized that the examiner's interpretation will make it exceedingly difficult for code enforcement personnel to deal with repeat offenders. The Warning of Violation issue needs to be fully litigated to ensure that the code is being applied as written and intended by the City Council. In order to avoid prejudgment and ex parte contact appearance of fairness issues, the issue is best addressed through the appeal process as opposed to separate meetings with City staff. Code enforcement staff may find it helpful to enlist the assistance of the City Attorney's Office to put together their legal argument. HEARING The hearing was held on the alleged violations of this case on August 23, 2016, at 9:30 a.m. at the Renton City Hall Council Chambers, 1055 South Grady Way, Renton, WA 98057. The record was left open through August 24, 2016 in order to give Mr. Suciu an opportunity to submit Exhibit 21. TESTIMONY Donna Locher, Renton code enforcement officer, testified that the City granted Mr. Suciu a business license for an auto transport operation that ships vehicles and boats. The address is 1924 Aberdeen Ave. NE. The license was approved in 2012 with conditions, including no equipment , no parking of commercial vehicles and no parking of employee vehicles. These are standard conditions placed on home occupations to ensure they are compatible with surrounding residential use. The purpose of the Ex. 5 and Ex. 6, 2013 photographs is to demonstrate how long the situation has been going on. The city gets complaint because of noise and the parking. Ex. 8-12 shows current violations. Ms. Locher said she ran a DOL records search on the vehicle Code Enforcement Decision-2 *ow Nue listed in Ex. 12 and found that it has a gross weight of 80,000 pounds and it's used for commercial purposes. The vehicle is next door to the subject property. The appellant owns both properties and uses them both for his home occupation. Mr. Suciu was sent a warning letter on September 15, 2015 and then a second warning letter on October 29, 2015 with a November 13, 2015 compliance date after Ms. Locher visited the site on October 28, 2015 (Ex. 14). On September 22, 2015 Mr. Suciu met with Ms. Locher and agreed to remove the forklift, car from the trailer and semi-cab from his properties. He also agreed to remove the commercial trailer within three weeks. On October 28, 2015, the commercial trailer was still on the property, which lead to the second warning letter. On November 2, 2015 Mr. Suciu asked for a six-month extension to convert the commercial trailer into a motor home. Ms. Locher agreed to the extension. On June 27, 2016 Ms. Locher went back to the property and the commercial trailer was still there(Ex. 16 and 17) —the top was gone, but the trailer was still there. Since Mr. Suciu had not removed the trailer she issued a Finding of Violation for $100. The violation letter was sent to the address of his original business license application. Mr. Suciu then visited Ms. Locher and told her he had transferred his business to the adjoining lot, 1916 Aberdeen Ave SE. The home occupation must be conducted from the property for which the license was issued. There have been numerous complaints since 2013 on the property. Her co-worker had also observed welding being done on the property. In response to examiner questions, Ms. Locher noted that the date of the violation was June 27, 2016, when she took photographs Ex. 16 and 17. The trailer remnant identified in Ex. 16 and 17 is the basis of the violation. There is a home on both adjoining properties owned by Mr. Suciu. The trailer remnant depicted in Ex. 16 and 17 was located on the 1924 Aberdeen Ave SE property. It was never moved. Mr. Suciu testified he's not the owner of Auto Boat Cargo Transport (the applicant for the Ex. 3 home occupation license) and never was. The Ex. 10 trailer is not a commercial vehicle, it's a personal vehicle. Mr. Suciu stated that he agreed to move it and he did move it. The vehicle Ms. Locher saw six months later is an entirely different trailer with a different VIN number and everything else. The second trailer is a boat trailer. He bought the trailer out of the Marysville boat yard. The boat trailer is for personal use only. The trailer didn't have wheels at the time the picture was taken but now it does. He has two boats. The fork lift is in Mr. Suciu's garage. His driveway was empty for five months after he moved the first trailer. In rebuttal, Ms. Locher noted that the business license states that Remus Suciu and Paula Muresan dba Auto Boat Cargo Transport. The trailer is a commercial trailer since the business is for the commercial vehicles. Ms. Locher asked Mr. Suciu if Auto Boat Cargo Transport transports boats and he said it does not. Ms. Locher noted that they advertise boat hauling. EXHIBITS Ex. 1 Scheduling Letter dated August 8, 2016 Ex. 2 Code Compliance Narrative dated July 25, 2016 Ex. 3 Home Occupation License application dated June 6, 2012 Ex. 4 Business license approval dated June 7, 2012 Ex. 5 Photograph of semi-flat bed dated 2/27/13 by Locher Ex. 6 Photograph 2/27/13 by Locher semi-flat bed Code Enforcement Decision-3 Noe Noe Ex. 7 2/28/13 letter from Locher to Mr. Suciu Ex. 8 9/15/15 photo from Locher of Nissan on trailer Ex. 9 9/15/15 photo of forklift Ex.10 9/15/15 photo of semi-trailer Ex. 11 9/15/15 photo of red semi-cab Ex. 12 9/15/15 photo of license 52640RP Ex. 13 Warning of Violation dated 9/15/15 Ex. 14 Photograph taken 10/28/15 of semi-trailer Ex. 15 Letter from Locher to Suciu 10/29/15 Ex. 16 6/27/16 photo of trailer Ex. 17 6/27/16 Photograph of trailer(including side mirror) Ex. 18 Finding of Violation dated 6/28/16 (including request for appeal) Ex. 19 6/27/16 Photograph of trailer Ex. 20 Photograph of driveway Ex. 21 Receipt of boat trailer purchase FINDINGS OF FACT 1. Appellant and Violation Site. The site is located at 1924 Aberdeen Ave NE, Renton WA, 989056-2628. The site in question is a single-family residence where Mr. Suciu operates a home occupation for Auto Boat Cargo Transport. In the application for the home occupation license, Mr. Suciu is listed as one of two parties "dob" [sic] as Auto Boat Cargo Transport. See Ex. 3. It is uncontested that Mr. Suciu owns the home occupation site as well as an adjoining single- family home lot located at 1916 Aberdeen Avenue NE as alleged in the City's code compliance narrative, Ex. 2. It is determined that Mr. Suciu owns the property at which the subject violation occurred. 2. Warning of Violation. A Warning of Violation was mailed to Mr. Suciu on September 15, 2015. The Warning of Violation alleged violation of RMC 4-4-090(4), without identifying which specific subsections applied to the violations. The Warning of Violation identified several vehicles and equipment in violation of RMC 4-4-090(4), including an allegation that there was a "commercial trailer" located on 1924 Aberdeen Ave NE. The Warning of Violation doesn't identify any specific date of violation. However, a photograph taken September 15, 2015 identifies an enclosed commercial trailer, without cab, located at 1924 Aberdeen Ave NE. See Ex. 10. 3. Finding of Violation. A Finding of Violation was mailed to Mr. Suciu on June 28, 2016. The Finding of Violation again quoted the entirety of RMC 4-9-090(4) without identifying which specific subsections applied to the subject violation. The Finding of Violation also fails to identify the alleged facts that serve as the basis of the violation. However, from the testimony of Ms. Locher and the code compliance narrative, Ex. 2, it is determined that the Finding of Violation was limited to the "commercial trailer" identified in the Warning of Violation as identified in Finding of Fact No. 2 herein. 4. New Trailer Subject to Finding of Violation. The trailer that was the subject to the Warning of Violation is not the same trailer that was subject to the Finding of Violation. As Code Enforcement Decision -4 taw Now previously noted, both the Warning of Violation and Finding of Violation don't identify any specific dates of violation. However, the Warning of Violation can clearly only apply to violations that occurred before its issuance — the City is obviously not sending out Warning notices for future violations. Mr. Suciu testified during the hearing that he had replaced the commercial trailer subject to the Warning of Violation with a boat trailer. It is determined from Ex. 21 that this is in fact what occurred. Ex. 21 includes a vehicle registration certificate showing that Mr. Suciu received license plates for a boat trailer in February, 2016 with VIN No. 2056. The Ex. 21 registration certificate is accompanied with an undated photograph that shows that a trailer with VIN No. 2056 on the driveway of the subject property in the same location as the trailer depicted in the Ex. 17 6/27/16 photograph submitted by the City. Although the Ex. 21 photograph only shows a portion of the trailer, it is clear from the surrounding cracks in the pavement, fencing and proximate mail box that the trailer is located on the driveway of the subject property in the same location as the Ex. 17 6/27/16 photograph. As far as can be ascertained from the limited evidence in the record, it is also determined the boat trailer is not the same as the commercial trailer depicted in the 2015 photographs submitted by the City. The 2015 photographs show the trailer as completely enclosed. Presumably a boat trailer would usually not be enclosed, given the awkward dimensions of a typical boat. When apprised of Mr. Suciu's position at hearing that he had replaced the commercial trailer with a boat trailer, City staff did not contest this position and in fact went on to argue that the boat trailer also violated city code. CONCLUSIONS OF LAW 1. Authority of Examiner: The Hearing Examiner has the authority and jurisdiction to review code violation as provided in RMC 1-3-2. 2. Applicable Criteria: The merits of this appeal do not need to be reached since the case must be dismissed for failure to comply with the City's procedural requirements for first issuing a Warning of Violation. Applicable provisions governing the Warning of Violation process are quoted below in italics and applied through corresponding conclusions of law. RMC 1-3-1(B)(9): "Violation" is a location,property, structure or condition that is inconsistent with the intent of this Code and/or endangers the health, sanitation or safety of the residents, neighborhood or community. Each day that a violation exists shall constitute a separate violation subject to separate costs and/or penalties, though multiple violations at one location or by a Violator should be heard jointly for administrative and fiscal economy. RMC 1-3-2(B)(5): "Finding of Violation" means that after issuing a Warning of Violation, the CCI or other authorized personnel has found that the condition or violation still exists and that a Violator has been found to have committed a RMC civil code violation. (emphasis added) RMC 1-3-2(E): Finding of Violation: When a CCI finds an RMC civil code violation, the CCI shall provide the Violator(s) with a Finding of Violation. 1. When a CCI finds an RMC civil code violation, the CCI shall provide the Violator(s) with a Warning of Violation. Code Enforcement Decision -5 Not r„wr 2. If that Warning of Violation does not result in a correction of a violation by immediate voluntary compliance, or compliance pursuant to a voluntary correction agreement, the CCI shall provide the Violator(s) with a Finding of Violation. 3. As clearly outlined in the code provisions quoted above, a Warning of Violation is required prior to the issuance of a Finding of Violation. The only way that the City's enforcement process for this appeal can be harmonized with the requirements quoted above is if the violation subject to the City's Ex. 13 Warning of Violation can be considered subject to the City's Ex. 18 Finding of Violation as well. Arguably, even though two different trailers are involved as determined in Finding of Fact No. 4, they are the same violation because they involve the same code section. From a due process standpoint, this would be an appropriate interpretation because once the Appellant is put on notice that outside parking of commercial vehicles violates RMC 4-4-090(4), it is entirely fair to issue Findings of Violation without prior Warnings of Violation for the same type of violation in the future. However, such an interpretation is not consistent with the wording of the provisions. Most notably, RMC 1-3- 2(B)(5) provides that a Finding of Violation may only be issued if the condition or violation identified in the Warning of Violation "still" exists. Use of the word "still" means that the commercial trailer located on the property must "still" be on the property once Finding of Violation is issued. The violation "still" remaining does not mean that the commercial trailer was removed at some point, the driveway was empty for a few minutes, hours, days or weeks and then a boat trailer was put in its place. Even without the "still" language, a code enforcement defendant could very reasonably conclude that the City's code enforcement process is designed to provide a defendant an opportunity to correct every separate violation alleged by the City prior to the issuance of a Finding of Violation. RMC 1-3-2(E) only authorizes the issuance of a Finding of Violation if a Warning of Violation hasn't resulted in compliance. There is nothing in the Chapter 1-3 RMC that suggests that once a Warning of Violation has been issued for a certain type of violation that the City can issue Findings of Violation for all future similar types of violation without a prior Warning of Violation and accompanying opportunity to correct the violation. Without clear notice in the code that Warnings of Violations could be dispensed with in this manner, it is unlikely that a court would uphold such an interpretation in a judicial appeal. DECISION The appeal is sustained. The Finding of Violation for FOV#: 15-000562 is overturned and no fines are due and owing. Decision issued September 23, 2016. Phi A.Olbrechts Hearing Examiner Code Enforcement Decision -6 011111110 turf NOTICE OF RIGHT TO APPEAL AND RECONSIDERATION Appeal to Superior Court. An appeal of the decision of the Hearing Examiner must be filed with Superior Court within twenty-one calendar days, as required by the Land Use Petition Act, Chapter 36.70C RCW. Reconsideration. A request for reconsideration may be filed with the Renton City Clerk's Office if done so within 14 calendar days of the issuance of this decision. All requests for reconsideration must be based upon the evidence admitted into the administrative record. Code Enforcement Decision-7