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(1) When the department receives an appeal of a notice of violation pursuant to SCC 30.85.190, the department shall transmit the request and a copy of the file to the hearing examiner within three working days.

(2) The hearing examiner shall review the appeal document and may summarily dismiss the appeal if the filing is untimely, incomplete, frivolous, or beyond the hearing examiner’s jurisdiction. In such event, a summary dismissal order shall be issued by the hearing examiner within 15 working days following receipt of the appeal.

(3) If the appeal is not summarily dismissed the hearing examiner shall hold an open record hearing on the notice of violation within 60 calendar days after the date on which the hearing examiner received the notice of appeal. All testimony at the open record hearing shall be taken under oath.

(a) The hearing examiner shall notify the parties in writing of the time, place and date of the hearing at least 30 calendar days prior to the date of the hearing, unless the parties stipulate to a shorter time period.

(b) Failure of the appellant to appear at the requested hearing may result in an order being entered finding that the person(s) named in the notice of violation committed the violation as stated and assessing monetary penalties in accordance with SCC 30.85.170. For good cause shown, and upon terms the hearing examiner finds just, the hearing examiner may set aside an order entered upon a failure to appear.

(4) In order to facilitate and expedite fair and equitable hearings, the hearing examiner may adopt rules of procedure that supplement the requirements set forth in this chapter; provided, that in the event of any conflict between the requirements of the chapter and any rules of procedure adopted by the hearing examiner, the requirements of this chapter shall control.

(5) Each principal party participating in an open record hearing shall be allowed to:

(a) Call, examine and cross-examine witnesses (subject to reasonable limitation by the examiner in accordance with the examiner’s adopted rules of procedure) on any matter relevant to the issues of the hearing;

(b) Introduce documentary and physical evidence;

(c) Rebut evidence; and

(d) Represent him/herself or to be represented by an attorney licensed to practice law in the state of Washington.

(6) The county has the burden of proof by a preponderance of the evidence that the appellant(s) committed the violation.

(7) Each party participating in an open record hearing for appeal of a notice of violation shall submit a copy of its written materials to the hearing examiner and to each of the other parties appearing in the appeal pursuant to the following schedule:

(a) No later than three weeks prior to the date of the scheduled open record hearing, the department shall file with the hearing examiner and serve on the appellant:

(i) an original or copy of each substantive document the department desires to enter as an exhibit in the appeal record, including, but not limited to, any and all scientific or technical documents, reports, studies, analyses, photographs, maps, diagrams, or other similar materials;

(ii) a list of all exhibits submitted; and

(iii) a list of witnesses.

(b) No later than one week prior to the date of the scheduled open record hearing, the appellant shall file with the hearing examiner and serve on the department:

(i) an original or copy of each substantive document the appellant desires to enter as an exhibit in the appeal record, including, but not limited to, any and all scientific or technical documents, reports, studies, analyses, photographs, maps, diagrams, or other similar materials;

(ii) a list of all exhibits submitted; and

(iii) a list of witnesses.

(c) Parties have a duty to supplement at the earliest possible opportunity their submittals made under subsection (7) of this section whenever a party discovers that all or any part of the material submitted was incorrect or inaccurate when submitted, or that all or any part of the material submitted is no longer correct or accurate even though it was correct and accurate at the time of submittal.

(d) Written materials not disclosed through the exhibit pre-filing process may not be entered as evidence or presented orally at the open record hearing except by agreement of all other parties to the appeal or at the hearing examiner’s discretion for good cause shown.

(8) Optional prehearing briefing process:

(a) A prehearing briefing process may be conducted:

(i) by agreement of the parties to the appeal;

(ii) at the hearing examiner’s discretion upon request of one or more of the parties to the appeal; or

(iii) upon the hearing examiner’s own initiative.

(b) The purpose of a prehearing briefing is to facilitate a full and fair hearing on the merits in cases that may involve complex or confusing factual issues or legal arguments. Accordingly, in determining whether to require a prehearing briefing, the hearing examiner shall consider the number and complexity of issues, and any other relevant facts and circumstances. The hearing examiner may modify the schedule in subsection (7) of this section in the interests of justice and efficiency.

(c) If a prehearing briefing process is employed in an appeal, such process shall include submittal of an initial brief by the department, optional response brief by the appellant, and an optional reply brief by the department. Response briefs may be filed by all other parties to the appeal. The department may choose to treat one of its briefs as the departmental report required by SCC 2.02.130.

(d) Prehearing briefs shall be submitted pursuant to the following schedule, unless a different schedule is established by the hearing examiner:

(i) the initial brief(s) by the department will be due three weeks before the hearing;

(ii) the optional response brief(s) by the appellant will be due one week before the hearing; and

(iii) the optional reply brief(s) will be due not less than two working days before the hearing.

(9) The hearing examiner shall consider the evidence and testimony presented at the hearing and, based on this information, shall issue a written decision reversing or affirming the notice of violation, in whole or in part, and addressing the amount of monetary penalties, if any, to be imposed on the appellant(s). The final decision shall be issued within 15 working days of the conclusion of the open record hearing with an optional right of reconsideration pursuant to SCC 30.85.210.

(10) The decision of the hearing examiner shall constitute a final decision and order in accordance with SCC 30.85.260. (Added by Amended Ord. 08-062, Oct. 1, 2008, Eff date Nov. 1, 2008; Amended by Amended Ord. 13-043, June 19, 2013, Eff date June 30, 2013; Amended by Ord. 16-056, Aug. 17, 2016, Eff date Aug. 28, 2016).