§ 8-6-22. Accumulation of litter on lots.

(A)

It shall be unlawful for any person or entity who shall own, occupy or possess any lot, lots or premises in the City to permit or allow litter to accumulate or remain thereon. For purposes of this Subsection the term "litter" shall include any bottles, cans, boxes, plastic or paper bags or sacks, cardboard, paper, containers, discarded food containers or cups, plastic wrapping, plastic, clothing, cloth or other similar material.

(B)

Penalty: Any person, corporation, or association who shall violate any of the provisions of this Section shall be guilty of a misdemeanor, and upon conviction shall be fined in a sum not to exceed $2,000.00. Each day on which the violation shall exist shall constitute a separate and distinct offense.

(C)

Should any owner of any lot, lots, or other premises within the City, permit or allow any "litter" as defined in Subsection (A) of this Section, to accumulate thereon, fail or refuse to remove such litter after having received notice from the City to do so according to the procedures set forth in Subsection (E) of this Section, then the City may enter upon the premises and remove such litter or cause the same to be removed and may pay therefor. The City may then charge the owner of the premises for the expenses incurred in doing such work, or having such work done or improvements made, according to the provisions set forth in Subsection (D) of this Section.

(D)

Filing of a lien. After the City has entered upon and performed services upon any lot pursuant to the powers granted the City in Subsection (C) of this Section, the City of Midland Building Official shall file a statement of the expenses incurred in such operations with the county clerk of Midland County, Texas stating the name of the owner, if known, the legal description of the property, the amount of such expenses and the date on which the work was done or improvements made. The City shall then have a privileged lien on the property upon which the work was done or improvements made, to secure the expenditures so made, in accordance with the provisions of V.T.C.A, Health & Safety Code § 342.007. That lien shall be second only to tax liens and liens for street improvements. The amount of that lien shall bear ten percent per annum interest from the date of payment by the municipality. The City's Building Official shall add to any lien filed pursuant to this Section the amount of the filing fee charged by the county clerk for filing that lien. It is further provided that for any such expenditures, and interest, as aforesaid, suit may be instituted and recovery and foreclosure of that lien may be had in the name of the City, and the statement of expenses so made, or a certified copy thereof, shall be prima facie proof of the amount expended for such work or improvements. The City of Midland Building Official is designated by the Mayor as required by Section 342.007(b) of the Texas Health and Safety Code.

(E)

Notice and hearing.

1.

Before exercising any of the powers granted in Subsections (C) and (D) of this Section, the City's Building Official must send notices in writing to the owner of the lot, lots or other premises on which the City proposes to enter pursuant to Subsection (C) of this Section, at least ten days prior to the City's entry upon the same. The notice must be given:

(a)

Personally to the owner in writing;

(b)

By letter addressed to the owner at the owner's address as recorded in the appraisal district records of the Midland Central Appraisal District; or

(c)

If personal service cannot be obtained or the owner's post office address remains unknown after the Building Official has searched the City's utility records and the records of the Midland Central Appraisal District:

(1)

By publication in the City's official newspaper at least once;

(2)

By posting the notice on or near the front door of each building on the property to which the violation relates; or

(3)

By posting the notice on a placard attached to a stake driven into the ground on the property to which the violation relates.

If the Building Official mails a notice to the property owner and the United States Postal Service returns the notice as "refused" or "unclaimed", the validity of the notice is not affected, and the notice is considered as delivered.

The notice may communicate the following information:

(a)

The name of the owner, if known, of the premises proposed to be entered upon by the City;

(b)

The address or legal description of the premises proposed to be entered upon by the City;

(c)

The offending conditions existing on the lot;

(d)

A demand that the owner remedy such conditions;

(e)

The day on which the City shall thereafter enter upon the premises and remedy the same should the owner not sooner do so;

(f)

The City shall attach a lien to the property to secure payment for the services rendered;

(g)

The customer has the right to appear and be heard at a hearing to contest the proposed entry, clearing and attachment of lien;

(h)

The means by which the lot owner may arrange for such a hearing;

(i)

The date by which the lot owner must request and set the hearing in order to receive it, which deadline may be no earlier than nine days after the giving of notice; and

(j)

The City in the notice of a violation may inform the owner that if the owner commits another violation of the same kind or nature that poses a danger to the public health and safety on or before the first anniversary of the date of the notice, the City without further notice may correct the violation at the owner's expense and assess the expense against the property. If a violation covered by a notice under this Subsection occurs within the one-year period, and the City has not been informed in writing by the owner of an ownership change, then the City without notice may do the work and make the improvements required and pay for the work done or improvements made and charge the expenses to the owners of the property and then assess its expenses as provided for in this Section.

(F)

Should any owner request a hearing to review the decision to enter upon and clear and clean that owner's lot, the hearing shall be presided over by the Director of Utilities or her designated appointee, hereafter in this context known as the hearing officer. The hearing shall be set by the next business day after being so requested by the lot owner, unless the hearing officer, in his/her discretion, sees fit to delay the hearing for up to five days upon showing of good cause by the lot owner. At the hearing, the owner shall be given the opportunity to be heard and to present the owners case, to present testimony from other persons and to admit documents. The owner may be represented by counsel. The owner shall be given the opportunity to confront and cross-examine any witnesses appearing against him at the hearing. However the rules of evidence for civil or criminal trials need not be enforced. The City's reasons for entering upon the owner's lot and clearing the same of litter shall be stated at the hearing. Upon reaching a final decision, the hearing officer shall state her reasons, in writing, for reaching that decision and state the evidence on which she relied in reaching her conclusions.

In the event the owner desires to appeal the decision of the hearing officer, the owner shall provide a written notice of appeal to the City Manager's Office within ten days of the hearing officer's final decision. The appeal shall be heard by the City Manager or his designee within ten days of the City's receipt of the notice of appeal, and the hearing shall be conducted as described above.

Should the hearing officer find in favor of the lot owner and there is no appeal, the City shall not enter upon, nor clear, nor attach a lien to that lot. Should the hearing officer find against the lot owner and there is no appeal, the City may enter upon, clear and attach a lien to that lot at any time before 60 days following the hearing.

In the event of an appeal, should the City Manager find in favor of the lot owner, the City shall not enter upon, nor clear, nor attach a lien to that lot. Should the City Manager find against the lot owner, the City may enter upon, clear and attach a lien to that lot at any time before 60 days following the appeal hearing.

(Ord. No. 8100, § 1, 6-25-2002)