PUBLIC HEARINGS
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21. |
CONSIDER FIRST
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Meeting
Date: |
April 21, 2008
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Budgeted:
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N/A
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From: |
Darby
Fuerst, |
Program/ |
N/A |
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General Manager |
Line Item
No.: |
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Prepared
By: |
David
Laredo, |
Cost
Estimate: |
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General
Counsel |
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General Counsel Approval: Yes |
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Committee Recommendation: On February 19, 2008, the Rules & Regulations Review Committee reviewed the ordinance, suggested changes, and recommended that the ordinance be submitted to the Board for first reading. |
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CEQA Compliance: N/A |
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SUMMARY: This matter presents, for first reading, a draft ordinance to enforce District Rules and Regulations through an administrative process. An earlier concept draft was considered by the Board at its October 15, 2007 meeting, and has been refined by the Rules & Regulations Review Committee at its meetings of January and February, 2008. The draft ordinance deletes an earlier concept that used a community hearing panel model in favor of using Board Directors, in rotation, as hearing officers. In exceptional matters, the Board may, as an alternative, refer select hearings to an administrative law judge through the California Office of Administrative Hearings (OAH). Administrative enforcement is primarily affected through issuance of citations, but a cease and desist procedure was also incorporated at the request of the Rules & Regulations Review Committee.
RECOMMENDATION: The Rules & Regulations Review Committee unanimously recommended approval of first reading of the draft enforcement ordinance (included as Exhibit 21-A.). If the first reading is approved by the Board, an implementing resolution to impose a fine schedule (included as Exhibit 21-B) shall also be considered at the second reading of this ordinance. At this time, however, the draft resolution is presented only for background and concept review. The Board may wish to refer to the Rules & Regulations Review Committee the question as to whether or not the fine schedule should incorporate graduated enforcement for water rationing or water conservation violations.
BACKGROUND: The District, by ordinance, has enacted rules that require occasional enforcement. Examples of enforcement situations include but are not limited to District regulation activities involving Water Conservation (Regulation (XIV); Expanded Water Conservation and Standby Rationing (Regulation XV), and “water waste” violations in particular; the Carmel River (Carmel River Management (Regulation XII); compliance with the Operational Water Supply Budgets (Regulation X – Rules 101 and 102); and permit activities (Regulation II). At this time, violations of District Rules and Regulations can be enforced by civil court action, or in the alternative, constitute a criminal misdemeanor subject to the provisions of the Penal Code, Section 17(d). Criminal prosecution of a District rule must be initiated by the District Attorney. MPWMD efforts to seek criminal enforcement of its rules must compete for limited prosecutorial resources with felonies and other misdemeanor violations.
Misdemeanors also may be charged by the District Attorney as infractions, which is a violation involving only a fine. State law provides that infractions may be punishable by (1) a fine not exceeding one hundred dollars ($100) for a first violation; (2) a fine not exceeding two hundred dollars ($200) for a second violation of the same ordinance within one year; and (3) a fine not exceeding five hundred dollars ($500) for each additional violation of the same ordinance within one year. For violations declared to be a nuisance, the District may provide for the summary abatement of the nuisance, but must initiate civil proceedings to abate the nuisance. The person committing the nuisance shall be liable for the costs incurred by the District to abate the nuisance including, but not limited to, the costs of investigation, costs of time and materials expended to eliminate or mitigate the nuisance, court costs, attorneys’ fees, and costs of monitoring compliance. Civil penalties may be assessed by a court against persons found to have committed a nuisance.
As a Strategic
Objective approved at its May 21, 2007 meeting, the Board directed staff and
counsel to explore more efficient and practicable options available to the
District to enforce its Rules and Regulations.
Misdemeanor criminal prosecutions or civil court enforcement entail
lengthy and expensive processes, both for the District and affected individuals. Criminal enforcement is inapt for all but the
most serious types of water waste and other District rule violation circumstances. Nonetheless, water use limits,
The Board at its October 15, 2007 regular meeting reviewed an early concept draft that proposed use of administration enforcement processes allowed by Government Code Section 53069.4. The first reading draft primarily relies upon an administrative citation process for enforcement, but retains the ability to initiate nuisance abatement through cease and desist enforcement.
The draft ordinance deletes an earlier concept that used a community hearing panel model in favor of using Board Directors, in rotation, as hearing officers. In exceptional matters, the Board may as an alternative refer select hearings to an administrative law judge (ALJ) through the OAH in accord with Government Code §27727. Compensation for ALJ services would be contracted directly with OAH. The ordinance authorizes the General Manager to contract with OAH for these services and to budget for this expense. Referral of hearings to the OAH may only, however, be made by the full board and must relate to complex, continuing or recurring violations, actions with large potential financial penalties, or matters calling for abatement of public nuisances.
For fairness and
consistency, citation fines are proposed to be consistent with penalties for violating
state laws not involving serious offenses
(i.e., inflicting injury to persons or major property damage). Staff contacted the
With respect to water rationing violations, the District may wish to contemplate using graduated fines. In other water jurisdictions, fines are at times established based on (1) the level of water reduction required, (2) size of meter, and (3) number of violations within a twelve month period. For example, a 1" or less sized meter at the first stage of drought (Stage 4) would receive a warning letter/notice. After that, the first violation would cost $20, second $40, third $80, etc. The same meter size in the next stage of drought (Stage 5) after the warning letter would be $40, second $80, third $160, etc. This approach could emphasize the growing importance of avoiding violations as the water supply becomes more perilous.
The Board may wish to refer to the Rules & Regulations Review Committee the question as to whether or not the fine schedule should incorporate this sort of graduated enforcement for water rationing or water conservation violations.
21-A Revised concept draft enforcement ordinance
21-B Draft resolution to impose a fine schedule
21-C Draft Schedule of Fines
U:\staff\word\boardpacket\2008\2008boardpackets\20080421\PubHrgs\21\item21.doc