The Seaside Grocery Outlet has filed a petition seeking to drop fines incurred from the city’s building department.

Jensen’s Grocers LLC, the operator of the Grocery Outlet in Seaside, has filed a petition in Clatsop County Circuit Court seeking to drop fines incurred from the city’s building department.

Grocery Outlet received fines after complaints that restrooms at the store were not open to the public.

On Jan. 14, 2022, the city issued a civil penalty assessment to Thomas Jensen, of Jensen’s Grocer’s. In the assessment, Bob Mitchell, the former director of building and code enforcement, detailed that limiting access to the store’s restrooms would result in a $1,000 civil penalty for violating city code. If violations continued, Mitchell wrote, each day would be considered a new violation and a $1,000 fine would be assessed for each day. 

According to the petition, Jensen put in place a policy since the store opened in June 2020 reserving the building’s two restroom facilities for employees and other individuals as necessary to comply with state and federal law.

After receiving the violation notice, Jensen changed the store’s restroom policy, opening the facility to the public, according to the petition.

Since that time, Grocery Outlet has complied with the city policy, the petition stated.

However, according to an appeal of the civil penalty assessment dated Dec. 20, current Seaside City Manager Spencer Kyle wrote that Jensen appealed the penalty assessment on Jan. 24, 2022.

“It appears from your letter that the basis of your appeal was twofold: 1. you were unhappy with City’s Building Official, Bob Mitchell, handled the violation and his communication with you, and 2. Mr. Mitchell is not interpreting the Building Code correctly and that your restrooms are not required to be open and accessible to the public,” wrote Kyle.

An appeal hearing was held on Feb. 9, 2022, according to the appeal of civil penalty assessment, and was held by the former City Manager, Mark Winstanley. According to the appeal, Jensen’s attorney argued that ” … the enforcement action was premised on misreading of the Oregon Structural Specialty Code,” and would not need to open Grocery Outlet’s restrooms to the public.

Winstanley has since retired. In the petition, Jensen’s attorney argued that Winstanley failed to follow procedures in deciding the appeal, and did not issue a decision for nearly 10 months after the initial hearing. 

Kyle, rejected an appeal by Jensen in December and affirmed both the violation and the $1,000 civil penalty.

In the appeal of civil penalty assessment to Jensen, Kyle said he based his decision on the written documentation supplied during the February 2022 appeal process as well as his own findings from discussions with Mitchell, the city attorney Dan Van Thiel and the city’s newly hired building official, Jerry Wade.

“I agree that both the scope and access (availability) to provide public restroom facilities are indeed a required feature needed for the building,” Kyle wrote.

Kyle also added that the city “ … is interested in compliance, not financial penalties.”

He offered to waive penalties if Jensen agreed to open restrooms to the public in compliance with state building code.

Without that assurance in writing within 30 days, the grocery store could face additional penalties.

Jensen and his attorney stated that no record was created during the appeal to Winstanley in February and the decision was rendered by Kyle. The decision is a violation of the state constitution and the due process clause of the 14th Amendment.

Jensen and his attorney are seeking a reversal of the decision, lifting the fines imposed and restitution and relief “… as the Court deems just and equitable.”

Martin said his client did not have additional comment.

The city has not been served, Kyle said.

“If the city is served on any lawsuit, we would turn it over for legal review before making any comment,” he added. “Therefore, at this time, the city has no comment.”