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_ .3 l!nny Medlin July 27, 1999 Page 2 III. Analysis of Enforcement Options The advantage of a municipal court prosecution is that the fines that the court may assess are higher than the administrative civil penalties, which are limited to $500 per day under EC 2.018(5). A municipal court prosecution also would allow the City to seek incarceration in the appropriate case. One disadvantage of the municipal court prosecution is that, if the City chose to prosecute the matter as a crime, the City's burden of proof would be beyond a reasonable doubt, and the defendant could request a trial by jury. However, the City could choose to prosecute the matter as a violation by seeking only monetary fines and not imprisonment. In that event, the City's burden of proof would be by a preponderance of the evidence, and the matter would be tried to a judge rather than a jury. A municipal court prosecution may take longer than the assessment of an administrative civil penalty. The municipal court typically sets cases for trial roughly 60 days after a complaint is filed. In contrast, the hearing on an appeal of the assessment of an administrative civil penalty must be set within 30 days of the City's receipt of the notice of intent to appeal. See EC 2.018(7); 2.021(3). Another disadvantage of a municipal court prosecution is that the defendant has the right to appeal and have a new trial in the Lane County Circuit Court. In essence, a municipal court defendant receives two trials if the defendant chooses to appeal to circuit court. If the defendant loses again in circuit court, the defendant may appeal to the Oregon Court of Appeals and on to the Oregon Supreme court, but the issue on appeal would be limited to the constitutionality of the ordinance under which the defendant was prosecuted. As discussed below, the appeal rights for a person against whom an administrative civil penalty is assessed do not include a second new hearing. Turning to the administrative civil penalty, the advantage of that enforcement option is that it is a relatively informal and expeditious procedure. A person is entitled to request a hearing to contest the assessment of an administrative civil penalty, but the hearings tend to be relatively informal and expeditious. If the person lost at the hearing, the violator could file a petition for writ of review with the Lane County Circuit Court, but the court has limited authority to overturn the assessment. Under ORS 34.040(1), the court may modify, reverse or annul the decision if it finds that the City exceeded its jurisdiction, failed to follow applicable procedures, made a decision not supported by substantial evidence, improperly construed the law, or made a decision that is unconstitutional. A person may appeal a circuit court order on a writ of review to the Oregon Court of Appeals and on to the Oregon Supreme Court. The main disadvantage of the administrative civil penalty procedure is that the maximum penalties are substantially lower than the maximum penalties allowable in a municipal court prosecution.