EXHIBIT 19-A
DRAFT
ORDINANCE NO. 131
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER MANAGEMENT DISTRICT
ADDING TO AND AMENDING ITS PROCESS FOR THE
ADMINISTRATIVE ENFORCEMENT OF
DISTRICT RULES AND REGULATIONS
FINDINGS
1.
The Water Management District is charged under the
Monterey Peninsula Water Management District Law with the integrated management
of the ground and surface water resources in the
2.
The Water Management District has general and specific power
to cause and implement water conservation activities as set forth in Sections
325 and 328 of the Monterey Peninsula Water Management District Law.
3.
The Board of Directors for the Monterey Peninsula Water
Management District has determined that a need exists to modify the manner in
which it may enforce the Rules and Regulations of the District.
4.
Enforcement
issues have become increasingly varied and complex over the years.
5.
Staff and District resources will be conserved and better utilized by adoption of streamlined
enforcement.
6.
Administrative
review of enforcement matters will facilitate improved and more consistent rule
compliance, reduce obstacles and
time delays that result from criminal or civil enforcement, and result in more
uniform application of the District’s rules and procedures.
7.
This
ordinance shall amend District Rule 11, Definitions, to add new definitions.
8.
This
ordinance amends District Regulation XI, Enforcement, to provide a
comprehensive administrative enforcement process.
9.
This ordinance
shall amend Rule 110, General Enforcement, to add nuisance abatement Cease and
Desist Order process.
10.
This
ordinance adds Rule 110.5, Administrative Remedies, to provide an
administrative compliance process for violation of District Rules and Regulations.
11.
This
ordinance moves the existing text of Rule 111, Charges and Penalty Assessments,
to Rule 110-B.
12.
This
ordinance renames Rule 111, Administrative Citation, and adds sections A
through C to address violations which are minor or transient in nature.
13.
This
ordinance adds Rule 111.5, Administrative Compliance Order, to address
violations which are serious, continuing or recurring.
14.
This
ordinance adds Rule 111.7, Notices, to identify how violation notice must be
provided.
15.
This
ordinance renames Rule 112, Hearing Officer Panel, to establish the panel.
16.
This
ordinance adds Rule 112.1, Hearing Officer Panel Appointment; Removal, to
define the appointment process, term, and removal procedure for Hearing
Officers.
17.
This
ordinance adds Rule 112.2, Hearing Officer Presiding Officer, to establish the
process to select a presiding officer.
18.
This
ordinance adds Rule 112.3, Hearing Officer Panel Meetings, to require
compliance with the Ralph M. Brown Act for all panel meetings.
19.
This
ordinance adds Rule 112.4, Hearing Officer Panel Rules and Procedures, which
allows the panel to establish its hearing rules and procedures upon advice of
the District General Counsel.
20.
This
ordinance adds Rule 112.5, Hearing Officer Selection, which describes the
process of random lot selection of Hearing Officers for hearings.
21.
This
ordinance moves the existing text of Rule 113, Liens, to Rule 119.3.
22.
This
ordinance adds Rule 113.1, Administrative Citation Fines, to establish the
payment period for fines.
23.
This
ordinance adds Rule 113.2, Advance Deposit Hardship Waiver, to provide a
hardship process for the advance deposit of fines.
24.
This
ordinance moves the existing text of Rule 114, Permit Rule Noncompliance, to
Rule 110-D.
25.
This
ordinance adds Rule 114.1, Hearing Request, to describe the process to request
a hearing to contest a violation.
26.
This
ordinance adds Rule 114.2, Administrative Compliance Hearing, to describe the
process to initiate a hearing, if required.
27.
This
ordinance adds Rule 114.3, Notice of Hearing, to describe the requirements for
notice of hearing.
28.
This
ordinance adds Rule 114.4, Compliance Hearing; Findings, to describe the
conduct of the hearing, the types of evidence which can be received, the
necessity for findings supported by evidence, and issuance of a determination.
29.
This
ordinance adds Rule 114.5, Administrative Order, which provides direction to
Hearing Officers upon determination that a violation has occurred.
30.
This
ordinance adds Rule 115.1, Administrative Penalties, to describe the range of
fines which may be imposed, to provide for a schedule of fines established from
time to time by Board Resolution, and to identify factors for the Hearing
Officer to consider in setting the administrative penalty. Provision is also made for suspension of
penalties.
31.
This
ordinance adds Rule 115.2, Administrative Costs, which allows recovery of
administrative costs against a violator.
Provision is also made for recovery against the Water Management
District upon proof that no violation occurred or compliance was timely. A waiver provision is made available to the
Hearing Officer.
32.
This
ordinance adds Rule 115.3, Interest, which requires a violator to pay interest
at the rate of ten (10) percent per annum, pro-rata, from the date the amount
first became delinquent until the date payment is received.
33.
This
ordinance adds Rule 116, Failure to Comply with a Compliance Order, which gives
the General Manager the power to enforce payment of assessed administrative
penalties and/or costs as a personal obligation of the violator or, if the
violation is against real property, a lien upon the real property.
34.
This
ordinance adds Rule 116.5, Recovery of Administrative Penalties and Costs,
which provides the General Manager with all available legal means to collect
these administrative costs and penalties.
35.
This
ordinance adds Rule 117, Report of Compliance with Administrative Order,
describing the reporting process to document compliance with an order.
36.
This
ordinance adds 117.5, Compliance Dispute, to provide a process for any Person
who believes that compliance has been achieved.
A compliance hearing is held before a Hearing Officer upon proper notice
with a determination based on findings.
37.
This
ordinance adds Rule 118, Judicial Review, to provide review of an
Administrative Order in the Superior Court by filing a petition for writ of
mandate.
38.
This
ordinance adds Rule 119.1, Late Payment Charges, to allow recovery of late
payment charges on fines imposed but not timely paid.
39.
This
ordinance adds Rule 119.2, Recovery of Administrative Citation Fines and Costs,
to utilize all available legal means to recover past due fines or late payment
charges.
40.
This
ordinance adds Rule 119.3, Lien Procedure, by incorporating the existing text
of Rule 113 and adding a process to lien real property on which a violation
occurred. A process is created which requires the General Manager to file a
report with the Board on the amount due, fix a time, date and place for hearing
before the Board on the report and any protests or objections, and provide
notice of the hearing.
41.
This
ordinance adds Rule 119.4, Lien Hearing and Protests, to describe the process
to protest a lien with resolution by the Board confirming, discharging or
modifying the amount of the lien.
42.
This
ordinance adds Rule 119.5, Recording of Lien, to describe the time and manner
of recording liens.
43.
This
ordinance adds Rule 119.6, Satisfaction of Lien, to describe the process of
satisfying liens once full payment has been received.
44.
This
ordinance is not a project within the CEQA definition 21065 and Guidelines
15060 (c) (2) and 15378 (b) (2) and (5) because it is not an activity which may
cause either direct physical change in the environment, or a reasonably
foreseeable indirect physical change in the environment.
NOW, THEREFORE, be it ordained as follows:
ORDINANCE
Section
One: Short Title
This ordinance shall be known as the Administrative Enforcement Ordinance.
Section
Two: Purpose
This ordinance sets forth an Administration Citation, Administrative Compliance Order, and nuisance abatement Cease and Desist Order enforcement process as allowed Government Code Section 53069.4.
Section
Three: Amendment of Rule 11 (Definitions)
A.
Unless the context specifically indicates otherwise, the
following terms shall be given the definition set forth below and shall be
permanently added to Rule 11, Definitions, of the Rules and Regulations of the
District. Revised text is shown in bold
italics (bold italics) and strikeout (strikethrough). Numbering is provided for ease of review.
1. Administrative
Citation- “Administrative Citation” shall mean a written notice of violation of
District Rules and Regulation which are minor or transient in nature. Examples may include water waste,
water rationing, permit condition and minor or non-recurring violations. Administrative
Citations are in addition to all other legal remedies, criminal or civil, which
may be pursued by the Water Management District.
2.
Administrative Compliance Order – “Administrative
Compliance Order” shall mean a written
compliance order issued by the General Manager to any Person responsible for
serious, continuing or recurring violations.
Administrative Compliance Orders are in addition to all other legal
remedies, criminal or civil, which may be pursued by the Water Management District.
3.
Administrative Order – “Administrative Order” shall mean
an order issued by a Hearing Officer at the conclusion of a hearing on a
violation.
4.
Cease and Desist Order – “Cease and Desist Order” shall
mean an order issued by the General Manager prohibiting a Person from
continuing a particular course of conduct which creates or fosters a Public
Nuisance. Cease and Desist Orders are in
addition to all other legal remedies, criminal or civil, which may be pursued
by the Water Management District.
5.
Enforcement Officer – “Enforcement Officer” shall mean
any employee or agent of the Water Management District with the authority to
enforce any provision of the District Rules and Regulations.
6.
Hearing Officer – “Hearing Officer” shall mean an
individual nominated by a seated Director and confirmed by a majority of the
District Board to conduct an administrative hearing.
7.
Hearing Officer Panel – “Hearing Officer Panel” shall
mean a group of seven members selected to hear administrative violations.
8.
Presiding Officer – “Presiding Officer” shall mean the
Chair of the Hearing Officer Panel who serves at the pleasure of the Board
Chair.
9.
Public Nuisance – “Public Nuisance” shall mean the
maintenance or use of water or property in the Water Management District in a
manner that jeopardizes or endangers the health, safety or welfare of persons
on the property or in the surrounding area.
Section
Four: Amendment of Rule 110 (General
Enforcement)
A. The
existing text of Rule 110 shall be labeled as Rule 110 A.
B. The existing
text of Rule 111 shall be moved to Rule 110 B.
C. The
following text shall be added as Rule 110 C:
C. Cease and Desist Order.
1. If General Manager determines
that water or property in the District is being used or maintained in a manner
that creates or fosters the creation of a Public Nuisance, the General Manager
shall issue a nuisance abatement Cease and Desist Order to the owner of the
subject property, the occupant of the subject property and/or to any other Person(s)
responsible for creating or fostering the creation of the Public Nuisance.
2. The nuisance abatement Cease
and Desist Order shall:
a. Describe the nature of the Public Nuisance
being created maintained or fostered by or on the subject property; and
b. Specify a compliance date by which the Public
Nuisance shall cease.
3. A nuisance abatement Cease and Desist Order shall be
deemed to be prima facie evidence that the activities, behaviors, conditions or
situations described in the order are creating or fostering the creation of a Public
Nuisance unless and until the Board or a court of competent jurisdiction
determines otherwise.
D. The
existing text of Rule 114 shall be moved to Rule 110 D.
Section
Five: Addition
of Rule 110.5 (Administrative Remedies)
The following text shall be added as Rule 110.5:
RULE 110.5 ADMINISTRATIVE
REMEDIES
The General Manager is authorized to use any administrative remedy set forth in this Regulation to achieve enforcement of District Rules and Regulations, in addition to any other legal remedy, criminal or civil, which may be pursued by the District to address a violation of these Rules and Regulations. Use of administrative remedies provided by this Regulation shall be at the sole discretion of the District.
Section Six: Amendment
of Rule 111 (Charges and Penalty Assessments)
Rule 111 is renamed Administrative Citation.
The following text shall be added as Rule 111:
RULE 111 ADMINISTRATIVE CITATION
A. Administrative Citations generally address
violations of the District Rules and Regulations that the District, in its sole
discretion, deems to be minor or transient in nature. The District adopts the Administration
Citation enforcement process, set forth in this Regulation pursuant to
B. Whenever the General Manager determines that a violation of
the Rules and Regulations has occurred, the General Manager shall have the
authority to issue an Administrative Citation to any Person responsible for the
violation. The Board of Directors, by
Resolution, shall adopt guidelines to guide staff's implementation of
Administrative Citation process provided by this Rule.
C. Each Administrative
Citation shall be served in accord with the provisions of Rule 111.7, and shall
contain the following information:
1. The date of the violation or, if the date of the
violation is unknown, then the date the violation is identified;
2. The address or a definite description of the
location where the violation occurred;
3. Reference to the section of the Rules and
Regulations, or to the provisions of any ordinance, violated and a description
of the circumstances pertaining to the
violation;
4. The amount of the fine for the Rules and
Regulations violation determined in accord with this Regulation;
5. A description of the fine payment process,
including a description of the time within which and the place to which the
fine shall be paid;
6. An order prohibiting the continuation or repeated
occurrence of the Rules and Regulations violation described in the Administrative
Citation;
7. A description of the Administrative Citation review
process, including the time within which the Administrative Citation may be
contested and the place from which a request for hearing form to contest the Administrative
Citation may be obtained; and
8. The name and signature of the General Manager or his delegated
agent acting as Enforcement Officer.
Section
Seven: Addition
of Rule 111.5 (Administrative Compliance Order)
The following text shall be added as Rule 111.5:
RULE 111.5 ADMINISTRATIVE
COMPLIANCE ORDER
A. Administrative Compliance Orders generally
address violations of District Rules and Regulations and ordinances that the General
Manager, in his or her sole discretion, deems not suitable for the Administrative
Citation process contemplated by this Regulation. For example, and not by exclusion, Administrative
Compliance Orders be used for serious, continuing or recurring violations, or
similar matters.
B. Whenever the General Manager determines that a violation of
any provision of these Rules and Regulations or of any District ordinance has occurred
or exists, the General Manager may issue a written compliance order to any Person
responsible for the violation. The Board
of Directors, by Resolution, shall adopt guidelines to guide staff's
implementation of Administrative Compliance Order process provided by this
Rule.
C. The Administrative Compliance Order sets forth a
description of the observed violation(s), a description of what the Responsible
Party is required to do to bring the water use or property into compliance, and
the date by which compliance must be achieved.
The Administrative Compliance Order provides notice as to administrative
penalties that shall accrue if compliance with the order is not achieved by the
date listed on the order. The Administrative
Compliance Order may be contested through an administrative hearing
process. The decision may contain an
order to correct any violations determined to exist, together with an order to
pay administrative penalties and costs.
D. An Administrative Compliance Order
pursuant to this Rule shall be served in accord with the provisions of Rule
111.7, and shall contain the following information:
1. The date of the violation or, if the date of the
violation is unknown, then the date the violation is identified;
2. The address or a definite description of the
location where the violation occurred;
3. Reference to the section of the Rules and
Regulations, or to the provisions of any ordinance, violated and a description
of the circumstances pertaining to the
violation;
4. The amount of the fine for the Rules and
Regulations violation determined in accord with this Regulation;
5. The actions
required to correct the violation;
6. The penalty related to the
violation, if compliance is not achieved;
7. An order prohibiting the continuation or repeated
occurrence of the Rules and Regulations violation described in the
Administrative Compliance Order;
8. A description
of the Administrative Compliance Order process, including the time within which
the Administrative Compliance Order may be contested and the place from which a
request for hearing form may be obtained and an explanation of the consequences of noncompliance with
this Regulation; and
9. The name and signature of the General Manager or
his delegated agent acting as Enforcement Officer.
Section Eight: Addition
of Rule 111.7 (Notices)
The following text shall be added as Rule 111.7:
RULE 111.7 NOTICES
A. All notices
required by this Regulation shall be served by personal delivery to the Person
to be notified or by deposit in the United States Mail, in a sealed envelope
postage prepaid, addressed to such Person to be notified at his last-known
business or residence address as the same appears in the public records or
other records pertaining to the matter to which such notice is directed. Service by mail shall be deemed to have been
completed at the time of deposit in the post office.
B. Proof of giving any notice may be made by the
certificate of any officer or employee of the District, or by affidavit of any Person
over the age of eighteen years, which shows service in conformity with this
Rule or other provisions of law applicable to the service of process.
C. Where real
property is involved, written notice shall be mailed to the property owner at
the address as shown on the last equalized county assessment roll.
D. Where Personal
service or service by mail upon the property owner is unsuccessful, a copy of
the order shall be conspicuously posted at the property which is the subject of
the order.
E. The failure
of any Person to receive any notice required under this Regulation shall not
affect the validity of any proceedings taken under this Regulation.
Section Nine: Amendment of Rule 112 (Administration of Rationing Penalties)
Rule 112 is renamed Hearing Officer Panel.
The following text shall be added as Rule 112:
RULE 112 HEARING OFFICER
PANEL
A Hearing Officer Panel consisting of seven (7) members
appointed by the Board of Directors of the District shall be created and
empanelled.
The appointment, performance evaluation, compensation
and/or benefits provided to any member of the Hearing Officer Panel shall not
be directly or indirectly conditioned upon the amount of fines imposed by the
Hearing Officer.
Section Ten: Addition
of Rule 112.1 (Hearing Officer Panel Appointment; Removal)
The following text
shall be added as Rule 112.1:
RULE 112.1 HEARING
OFFICER PANEL APPOINTMENT; REMOVAL
A. Members
of the Hearing Officer Panel shall be nominated by seated Directors, and
confirmed by a majority of the District Board.
Each appointee to the Hearing Officer Panel shall serve for a two-year
term, provided however, that four members of the panel shall be appointed to
terms ending on January 31st in even-numbered years, and three members of the
panel shall be appointed to terms ending on January 31st in odd-numbered
years. Any vacancy on the Hearing
Officer Panel shall be filled for the unexpired remainder of that term by the
same appointment process.
B. Any
member of the Hearing Officer Panel may be removed prior to the expiration of
his or her term by a majority vote of the Board, in the Board’s discretion.
Section
Eleven: Addition
of Rule 112.2 (Hearing Officer Presiding Officer)
The following text shall be added as Rule 112.2:
RULE 112.2 HEARING
OFFICER PRESIDING OFFICER
The Chair of the District Board shall select one member
of the Hearing Officer Panel to be the Presiding Officer. The Presiding Officer shall serve in that
capacity at the pleasure of the Board Chair.
Should the Presiding Officer be absent or unavailable, a majority of the
remaining members of the Hearing Officer Panel shall appoint an acting
Presiding Officer to perform the duties of the Presiding Officer.
Section
Twelve: Addition
of Rule 112.3 (Hearing Officer Panel Meetings)
The following text shall be added as Rule 112.3:
RULE 112.3 HEARING
OFFICER PANEL MEETINGS
The Presiding Officer shall act as the Chair of the
Hearing Officer Panel at any meeting of that panel. All meetings of the Hearing Officer Panel
shall be open and noticed in accord with the requirements of the Ralph M. Brown
Act.
The Presiding Officer, any member of the Hearing Officer
Panel, the General Manager, or District General Counsel may place for review and discussion before
that Panel any final Administrative Citation, final Administrative Compliance
Order, or a final nuisance abatement Cease and Desist Order issued pursuant to
this regulation. This review, however,
shall be limited to training purposes only and shall not cause modification of any
citation or order.
Section Thirteen: Addition of
Rule 112.4 (Hearing Officer Panel Rules and Procedures
The following text
shall be added as Rule 112.4:
RULE 112.4 HEARING
OFFICER PANEL PROCEDURES
The Hearing Officer Panel may establish and modify,
taking into consideration the advice of District General Counsel, procedures
that shall govern the conduct of any hearing to review an Administrative
Citation, Administrative Compliance Order, or a nuisance abatement Cease and
Desist Order. All such rules and
procedures shall be provided to any participant in that hearing. District General Counsel shall provide
periodic training to the Hearing Officer Panel to promote adherence to due
process and ethical hearing practices.
Section Fourteen: Addition of Rule 112.5 (Hearing Officer Selection)
The following text shall be added as Rule 112.5:
RULE 112.5
HEARING OFFICER SELECTION
The Presiding
Officer of the Hearing Officer Panel shall, by random lot, designate one member
of the Hearing Officer Panel to be the Hearing Officer for each hearing. The Presiding Officer may be chosen as a
Hearing Officer. Should a selected
Hearing Officer be disqualified for cause, or should that Hearing Officer
otherwise be unable to conduct the hearing, the Presiding Officer shall by
random lot designate a successor Hearing Officer from available members of the
Hearing Officer Panel.
Section
Fifteen: Addition
of Rule 113.1 (Administrative Fines)
The following text shall be added as Rule 113.1:
RULE 113.1 ADMINISTRATIVE FINES
A. Any fine
required pursuant to an Administrative Citation, Administrative Compliance
Order, or nuisance abatement Cease and Desist Order shall be paid to the
District within thirty (30) days from the date of the citation or order unless
a deposit waiver has been issued in accord with Rule 113.2.
B. Any paid fine shall be refunded in accordance with Section 114.4-I if it is determined, after a hearing, that the Person charged in the citation or order was not responsible for the violation or that there was no violation as charged.
C. Payment of a fine under this Regulation shall not excuse or discharge any continuation or repeated occurrence of the violation.
Section
Sixteen: Addition
of Rule 113.2 (Advance Deposit Hardship Waiver)
The following text shall be added as Rule 113.2:
RULE 113.2 ADVANCE
DEPOSIT HARDSHIP WAIVER
A. Any Person
who intends to request a hearing to contest that there was a violation of these
Rules and Regulations or that he or she is the Responsible Party and who is
financially unable to make the advance deposit of the fine as required in Rule
113.1 may file a request for an advance deposit hardship waiver.
B. The request
shall be filed with the General Manager within fifteen (15) days of the date of
the citation or order.
C. The
requirement to deposit the full amount of the fine as described in Rule 113.1
shall be stayed unless or until the General Manager makes a written
determination not to issue the advance deposit hardship waiver.
D. The General
Manager may waive the requirement of an advance deposit set forth in Rule 113.1
and issue the advance deposit hardship waiver only if the cited party submits
to the General Manager a sworn affidavit, together with any supporting
documents or materials, demonstrating to the satisfaction of the General
Manager the Person's actual financial inability to deposit with the District
the full amount of the fine in advance of the hearing.
E. If the
General Manager determines not to issue an advance deposit hardship waiver, the
Person shall remit the deposit to the District within ten (10) days of the date
of that decision or thirty (30) days from the date of the citation or order,
whichever is later.
F. The General
Manager shall issue a written determination listing the reasons for his or her
determination to issue or not issue the advance deposit hardship waiver. The written determination of the General
Manager shall be final.
G. The written
determination of the General Manager shall be served upon the Person who
applied for the advance deposit hardship waiver.
Section
Seventeen: Addition
of Rule 114.1 (Hearing Request)
The following text shall be added as Rule 114.1:
RULE 114.1 HEARING
REQUEST
A. Any recipient
of an Administrative Citation, Administrative Compliance Order, or a nuisance
abatement Cease and Desist Order may contest that there was a violation of
these Rules and Regulations, or that he or she is the Responsible Party, or
that a penalty should not be imposed by completing a request for hearing form
and returning it to the District within thirty (30) days from the date of the
Administrative Citation, Administrative Compliance Order, or a nuisance
abatement Cease and Desist Order together with an advance deposit of the fine
or notice that a request for an advance deposit hardship waiver has been filed
pursuant to Rule 113.2.
B. A request for
hearing form may be obtained from the General Manager.
Section Eighteen: Addition
of Rule 114.2 (Administrative Compliance Hearing)
The following text
shall be added as Rule 114.2:
RULE 114.2 ADMINISTRATIVE
COMPLIANCE HEARING
A. If the
General Manager determines that all violations have been corrected within the
time specified in the Administrative Citation or Administrative Compliance
Order, no further action shall be taken.
Notice of this action shall be forwarded to any party requesting a
hearing.
B. If full compliance as to each violation is not
achieved within the time specified in the Administrative Citation or Administrative
Compliance Order, the General Manager shall advise the Presiding Officer
of the Hearing Officer Panel. Each request for a Hearing Officer shall also
be forwarded to the Presiding Officer of the Hearing Officer Panel. The
Presiding Officer of the Hearing Officer Panel shall designate a Hearing
Officer in accord with Rule 112.5.
C. The selected
Hearing Officer shall cause a written notice of hearing to be served on the
violator and, where real property is involved, a notice of hearing shall be
served on the property owner at the address as it appears on the last equalized
county assessment roll available on the date the notice is prepared.
Section
Nineteen: Addition
of Rule 114.3 (Notice of Hearing)
The following text shall be added as Rule 114.3:
RULE 114.3 NOTICE
OF HEARING
A. Every notice
of hearing on an Administrative Citation, or Administrative Compliance Order,
or a nuisance abatement Cease and Desist Order shall comply with Rule 111.7 and
shall contain the date, time and place at which the hearing shall be conducted
by the Hearing Officer in accord with
Rules 114.1 through 114.5.
B. Each hearing
shall be set for a date not less than fifteen (15) days nor more than sixty
(60) days from the date of the notice of hearing unless the General Manager
determines that the matter is urgent or that good cause exists for an extension
of time.
C. This hearing
serves to provide the full opportunity of a Person subject to a Administrative
Citation, Administrative Compliance Order, or a nuisance abatement Cease and
Desist Order to object to the determination that a violation has occurred
and/or that the violation has continued to exist and/or that a public nuisance
exists. The failure of any Person
subject to an Administrative Citation, Administrative Compliance Order or
nuisance abatement Cease and Desist Order, pursuant to this Regulation, to
appear at the hearing shall constitute a failure to exhaust administrative
remedies.
Section Twenty: Addition
of Rule 114.4 (Compliance Hearing; Findings)
The following text shall be added as Rule 114.4:
RULE 114.4 COMPLIANCE HEARING;
FINDINGS
A. At the place and time set forth in the notice
of hearing, the Hearing Officer shall conduct a hearing on the citation or
order issued pursuant to Rules 110, 111, or 111.5, and in accord with procedures as may be promulgated by the
Hearing Officer Panel.
B. The
Hearing Officer shall consider written or oral evidence pursuant to rules and
procedures set by the Hearing Officer Panel pursuant to Rule 112.4. Evidence regarding the alleged violation or
compliance actions may be presented by any party, including the alleged
violator, the owner or occupant any real property affected by the alleged
violation, and/or by the District.
C. The
Hearing Officer shall further consider any objectively reasonable efforts made
by a Person who is subject to an Administrative Citation, Administrative
Compliance Order, or nuisance abatement Cease and Desist Order to comply with
that order prior to the compliance date.
The Hearing Officer may take into consideration any condition or
situation beyond the control of a Person subject to a nuisance abatement Cease
and Desist Order that prevents compliance with that order.
D. The citation or order, and any additional material, submitted by the
District Enforcement Officer shall constitute prima facie evidence of the
respective facts contained in those documents.
A report on the alleged violation shall set forth a detailed
recommendation as to relevant findings and conclusions that flow from the facts
presented and a recommended decision based upon those findings and
conclusions. This report shall meet the
standards for administrative findings set forth in Topanga Assn. for a Scenic
Community v. County of Los Angeles, 11 Cal.3d 506 (1974).
E. The
Hearing Officer may question witnesses and/or request additional information
from the Enforcement Officer or any party prior to closing the hearing.
F. Within a reasonable time following the
conclusion of the hearing, the Hearing Officer shall make findings and issue a
determination, as to each alleged violation, regarding:
1. The
existence of the violation and/or Public Nuisance;
2. Whether
a nuisance exists that requires abatement;
3. The identity of each responsible Person;
4. The
failure of the violator or owner to take required corrective action within the
required time period;
5. The absence, or extent, of mitigating
conditions or situations beyond the control of the Person subject to the order.
G. Findings shall be supported by evidence received at the hearing.
H. If the Hearing Officer
finds by a preponderance of the evidence that a violation has occurred and that
the violation was not corrected within the time period specified in the order,
the Hearing Officer shall issue an Administrative Order in accord with this
Regulation and may order reimbursement to the District for the
District's administrative costs incurred in the proceeding pursuant to Rule
115.2-A.
I. If the Hearing Officer finds
that no violation has occurred or that the violation was corrected within the
time period specified in the order, the Hearing Officer shall issue a finding
as to those facts and may order reimbursement to the alleged violator
for reasonable and necessary costs incurred to defend that proceeding pursuant
to Rule 115.2-B.
J. If the Hearing Officer
finds a nuisance requires abatement, the Hearing Officer shall also
issue an abatement order and may impose any or all of the following:
1. An
order to discontinue the use of or certain activity at the subject property,
temporarily or permanently, as needed to protect the health, safety or welfare
of Persons or property on or near the subject property or to eliminate,
lessen or prevent the continuation, exacerbation or reoccurrence of the
detrimental impacts created by the Public Nuisance; and
2. An
order imposing conditions on the continued use of or certain activity at the
subject property, as needed to protect the health, safety or welfare of Persons
or property on or near the subject property or to eliminate, lessen or prevent
the continuation, exacerbation or recurrence of the detrimental impacts created
by the nuisance; and
3. Where
the implementation of conditions requires a permit or an amendment to an
existing permit, an order conditioned upon the property owner applying for and
obtaining the permit or modification of an existing permit applicable to the
subject property.
Section
Twenty-One: Addition of Rule 114.5
(Administrative Order)
The following text shall be added as Rule 114.5:
RULE 114.5 ADMINISTRATIVE
ORDER
If
the Hearing Officer determines, by a preponderance of the evidence, that a
violation or Public Nuisance occurred which was not corrected within the time
period specified in the order, the Hearing Officer shall issue an Administrative
Order that imposes any or all of the following:
A. An order to
correct, including a schedule for correction where appropriate;
B. Administrative
penalties as provided in Rule 115.1;
C. Administrative
costs as provided in Rule 115.2.
Section
Twenty-Two: Addition of Rule 115.1 (Administrative Penalties)
The following text shall be added as Rule 115.1:
RULE 115.1 ADMINISTRATIVE
PENALTIES
A. In accord with this Regulation, the Hearing
Officer may impose administrative penalties for the violation of any provision
of these Rules and Regulations, or for allowing an unabated Public Nuisance, in
an amount not to exceed a maximum of two thousand five hundred dollars ($2,500.00)
per day for each ongoing violation, except that the total administrative
penalty shall not exceed one hundred thousand dollars ($100,000.00)
exclusive of administrative costs, interest and restitution for compliance re-inspections,
for any related series of violations.
B. Penalty fines for violation of the District Rules and
Regulations, and the fine for any citation or order, shall be set forth in the
schedule of fines established, and periodically amended, by Resolution of the
District Board. The schedule of fines shall
specify an increased penalty fine for repeat violation of the same provision by
the same Person within thirty-six (36) months from the date of an Administrative
Citation. The schedule of fines shall
specify the amount of any late payment charges imposed for the payment of a
fine after its due date.
C. In determining the amount of the
administrative penalty, the Hearing Officer may take any or all of the
following factors into consideration:
1. The duration of the violation(s) and/or Public Nuisance;
2. The frequency, recurrence and number of violations,
related or unrelated, by the same violator or at the same Site;
3. The seriousness of each violation;
4. The good faith efforts of the violator to come into
compliance;
5. The economic impact of the penalty on the violator;
6. The impact of the violation on the community;
7. Such other factors as justice may require.
D. Administrative
penalties shall accrue from the date specified in the citation or order and
shall cease to accrue on the date the violation is corrected as determined by
the Hearing Officer.
E. The Hearing
Officer, in his or her discretion, may suspend the imposition of applicable
penalties for any period of time during which:
1. The violator has filed for necessary permits; and
2. Such permits are required to achieve compliance;
and
3. Such permit applications are actively pending
before the District or other appropriate Governmental agency.
F. Administrative
penalties shall be due by the date specified in the Administrative Order.
G. Administrative
penalties are a debt owed to the District and, in addition to all other means
of enforcement, if the violation is located on real property, may be enforced
by means of a lien against the real property on which the violation occurred.
H. If the
violation is not corrected as specified in the Hearing Officer’s order to
correct, administrative penalties shall continue to accrue on a daily basis
until the violation is corrected, subject to the maximum amount set forth above
in this Rule.
I. If the
violator gives written notice to the General Manager that the violation has
been corrected and if the General Manager finds that compliance has been
achieved, the General Manager shall deem the date the written notice was
postmarked or personally delivered to the General Manager or the date of the
final inspection, whichever first occurred, to be the date the violation was
corrected. If written notice is not provided
to the General Manager, the violation will be deemed corrected on the date of
the final inspection.
Section Twenty-Three: Addition of Rule 115.2 (Administrative Costs)
The following text shall be added as Rule 115.2:
RULE 115.2 ADMINISTRATIVE
COSTS
A. The Hearing Officer shall assess administrative
costs against the violator when it finds that a violation has occurred and that
compliance has not been achieved within the time specified in the order.
B. The Hearing Officer shall assess
administrative costs against the District when it finds that evidence available
to the District before the hearing was convened that reasonably established
that a violation had not occurred or that compliance had been achieved within
the time specified in the order.
C. The administrative costs shall include
reasonable and necessary costs incurred in connection with the matter before
the Hearing Officer including, but not limited to, costs of investigation,
costs incurred to prepare for the hearing and for the hearing itself, and costs
for all re-inspections necessary to enforce the order.
D. The Hearing Officer may waive the
assessment of administrative costs against either party where unique
circumstances are present, or in the interests of justice.
Section
Twenty-Four: Addition of Rule 115.3 (Interest)
The following text shall be added as Rule 115.3:
RULE 115.3 INTEREST
Any Person who fails to remit payment to the
District of any fee, fine, penalty, cost or any other charge required to be
paid to the District pursuant to this Regulation on or before the date it is
due shall, in addition to the amount of the fee, fine, penalty, cost, and
charge, pay interest on the amount due at the rate of ten (10) percent per
annum, pro-rata, from the date on which the amount due first became delinquent
until the date that payment is received by the District.
Section Twenty-Five: Addition of Rule 116 (Failure to
Comply with a Compliance Order
The following text shall be added as Rule 116:
RULE 116 FAILURE
TO COMPLY WITH AN ORDER
Failure
to pay the assessed administrative penalties and/or administrative costs specified
in the Administrative Order, or failure to pay additional administrative costs incurred
due to non-compliance with a compliance order itself, shall be enforced by the General
Manager as:
1. A Personal obligation of the violator; and/or
2. If the violation is in connection with real
property, a lien upon the real property.
The lien shall remain in effect until all of the administrative
penalties, interest and administrative costs are paid in full.
Section Twenty-Six: Addition
of Rule 116.5 (Recovery of Administrative
Penalties and Costs)
The following text shall be added as Rule 116.5:
RULE 116.5 RECOVERY
OF ADMINISTRATIVE PENALTIES AND COSTS
The
General Manager shall collect administrative penalties and administrative costs
by use of all available legal means, including recordation of a lien pursuant
to Rule 119.5.
Section Twenty-Seven: Addition
of Rule 117 (Report of Compliance with Administrative Order)
The following text shall be added as Rule 117:
RULE 117 REPORT
OF COMPLIANCE WITH ADMINISTRATIVE ORDER
When
the General Manager determines that compliance has or has not been achieved in
compliance with an order issued by a Hearing Officer, the General Manager shall
file a report with the Hearing Officer Panel indicating whether
or not compliance has been achieved.
Section
Twenty-Eight: Addition of Rule 117.5 (Compliance Dispute)
The following text shall be added as Rule 117.5:
RULE 117.5 COMPLIANCE DISPUTE
A. If the
General Manager does not file a report pursuant to Rule 117, above, or in the
event an error is alleged in a report so filed, any Person who believes that
compliance has been achieved may request a compliance hearing before the Hearing
Officer by filing a request for a hearing with the Presiding Officer of the Hearing Panel.
B. The hearing on
the compliance dispute shall be noticed and conducted in the same manner as a
hearing on an order provided in this Regulation.
C. The Hearing
Officer shall determine if compliance has been achieved and, if so, when it was
achieved. Based on this finding, the
Hearing Officer may issue an order to provide relief, or may impose further
enforcement remedies.
Section
Twenty-Nine: Addition of Rule 118 (Judicial Review)
The following text shall be added as Rule 118:
RULE 118 JUDICIAL
REVIEW
Any
Person aggrieved by the final determination of any Hearing Officer under this
Regulation, may obtain review of the Administrative Order in the Superior Court
by filing with the court a petition for writ of mandate pursuant to the
provisions and timelines set forth in Rule 16 of these Rules and Regulations
and in accord with the California Government Code Section 53069.4.
Section
Thirty: Addition
of Rule 119.1 (Late Payment Charges)
The following text shall be added as Rule 119.1:
RULE 119.1 LATE
PAYMENT CHARGES
Any
Person who fails to pay to the District any fine imposed pursuant to the
provisions of this Regulation on or before the date that fine is due also shall
be liable for the payment of any applicable late payment charges set forth in
the schedule of fines.
Section Thirty-One: Addition
of Rule 119.2 (Recovery of Administrative
Citation Fines and Costs)
The following text shall be added as Rule 119.2:
RULE 119.2 RECOVERY OF
ADMINISTRATIVE FINES AND COSTS
The District may collect any past
due fines or late payment charges assessed in accord with this Regulation by
use of all available legal means.
Section Thirty-Two: Addition
of Rule 119.3 (Lien Procedure)
The following text shall be added as Rule 119.3:
RULE 119.3 LIEN
PROCEDURE
The existing text of Rule 113 shall be added as Rule
119.3 A.
The following text shall be added as Rule 119.3 B through G, respectively:
B. Whenever the
amount of any administrative penalty and/or administrative cost imposed
pursuant to this Regulation in connection with real property has not been
satisfied in full within ninety (90) days and/or has not been successfully
challenged by a timely writ of mandate, this obligation may constitute a lien
against the real property on which the violation occurred.
C. The lien
provided herein shall have no force and effect until recorded with the
D. Interest
shall accrue on the principal amount of the judgment remaining unsatisfied
pursuant to law.
E. Prior to
recording any such lien, the General Manager shall prepare and file with the
Board a report stating the amounts due and owing.
F. The General
Manager shall fix a time, date and place for hearing before the Board on the
report and any protests or objections thereto.
G. The General
Manager shall cause written notice to be served on the property owner not less
than ten (10) days prior to the time set for the hearing. Such notice shall be served as provided in
this Regulation.
Section
Thirty-Three: Addition of Rule 119.4 (Lien Hearing and Protests)
The following text shall be added as Rule 119.4:
RULE 119.4 LIEN HEARING
AND PROTESTS
A. Any Person
whose real property is subject to a lien pursuant to Rule 119.3 may file a
written protest with the General Manager and/or may protest orally at the Board
meeting.
B. Each written
protest or objection must contain a description of the property in which the
protesting party is interested and the grounds of such protest or objection.
C. The Board,
after the hearing, shall adopt a resolution confirming, discharging or
modifying the amount of the lien.
Section Thirty-Four: Addition of Rule 119.5
(Recording of Lien)
The following text shall be added as Rule 119.5:
RULE 119.5 RECORDING OF
LIEN
Thirty
(30) days following the adoption of a resolution by the Board imposing a lien,
the General Manager shall file the same as a judgment lien in the Office of the
Section Thirty-Five: Addition of Rule 119.6 (Satisfaction of Lien)
The following text shall be added as Rule 119.6:
RULE 119.6 SATISFACTION
OF LIEN
If
payment in full is received by the District for outstanding penalties and
costs, the General Manager shall either record a notice of satisfaction or
provide the property owner or financial institution with a notice of
satisfaction so they may record this notice with the Office of the County
Recorder. Such notice of satisfaction
shall cancel the District's lien.
Section Thirty-Six: Publication and Application
The provisions of this ordinance shall cause the amendment and republication of Rule 11, the amendment of Rules 110, 111, 112 and 114, and the addition of Rules 110.5, 111, 111.5, 111.7, 112, 112.1 through 112.5, 113.1 to 113.2, 114.1 through 114.5, 115.1 through 115.3, 116, 116.5, 117, 117.5, 118, and 119.1 through 119.6.
Section Thirty-Seven: Effective
Date
This ordinance shall be given effect at 12:01 a.m. on the _________.
[Insert the date for the thirty first day after enactment].
Section Thirty-Eight: Sunset
This
ordinance shall not have a sunset date.
Section Thirty-Nine: Severability
If any
subdivision, clause, or phrase of this ordinance is, for any reason, held to be
invalid or unenforceable by a court of competent jurisdiction, such invalidity
or unenforceability shall not affect the validity or enforcement of the
remaining portions of this ordinance, or of any other provisions of the
Monterey Peninsula Water Management District Rules and Regulations. It is the District’s express intent that each
remaining portion would have been adopted irrespective of the fact that one or
more subdivisions, paragraphs, sentences, clauses, or phrases be declared
invalid or unenforceable.
On motion of Director
______________, and second by Director ____________, the foregoing ordinance is
adopted upon this _____ day of ________, 2007, by the following vote:
AYES:
NAYS:
ABSENT:
I, David A. Berger, Secretary to the
Board of Directors of the Monterey Peninsula Water Management District, hereby
certify the foregoing is a full, true, and correct copy of an ordinance duly
adopted on the _____ day of ___________, 2007.
Witness my hand and seal of the
Board of Directors this _____ day of __________, 2007.
________________________________
David
A. Berger, Secretary to the Board
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