ORDINANCE NO. 133
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER MANAGEMENT DISTRICT
AMENDING ITS PROCESS TO ENFORCE
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 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.
3. Government
Code section 53069.4 allows the District to enact an administrative enforcement
process so long as a de novo court review of the enforcement decision is
available to challenge the action taken.
The Citation, Order, and Cease & Desist Order enforcement process
created by this ordinance complies with the requirements of this provision of
the Government Code.
4. Staff and
District resources will be conserved
and better utilized by adoption of streamlined enforcement. Enforcement
issues have become increasingly varied and complex over the years.
5. 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.
6. This ordinance shall amend District Rule 11,
Definitions, to add new definitions.
7. This
ordinance amends District Regulation XI, Enforcement, to provide a
comprehensive administrative enforcement process.
8. This ordinance shall amend Rule 110, General
Enforcement, to add a Cease & Desist Order process to provide the General
Manager with full enforcement authority of District Rules and Regulations and
all other policies adopted by the District including the ability to collect all
charges and penalties and to seek civil enforcement and/or criminal prosecution
for permit rule noncompliance.
9. This ordinance adds Rule 110.5, Administrative
Remedies, to provide authorization to use any administrative remedy for violation
of District Rules and Regulations.
10. This ordinance moves the existing text of Rule
111, Charges and Penalty Assessments, to Rule 110-B.
11. This ordinance adds a new Rule 111,
Administrative Citation, and adds sections A through C to address violations
which are minor or transient in nature.
12. This ordinance adds Rule 111.5, Cease &
Desist Order, to address violations which are serious, continuing or recurring.
13. This ordinance adds Rule 111.6, Alternate
Enforcement, to allow the Board to refer compliance issues where the potential
fine exceeds $10,000 to an Administrative Law Judge retained through the
California Office of Administrative Hearings (OAH) in accord with Government
Code §27727.
14. This ordinance adds Rule 111.7, Notices, to
identify how violation notice must be provided.
15. This ordinance renames Rule 112, Hearing
Officers, to establish District Directors as Hearing Officers and determine
compensation for this service.
16. This ordinance adds Rule 112.5, Hearing
Officer Rotation to describe the process of rotation selection of Hearing
Officers.
17. This ordinance moves the existing text of
Rule 113, Liens, to Rule 119.3-A.
18. This ordinance adds Rule 113.1,
Administrative Citation Fines, to establish the payment period for fines.
19. This ordinance adds Rule 113.2, Advance
Deposit Hardship Waiver, to provide a hardship process for the advance deposit
of fines.
20. This ordinance moves the existing text of
Rule 114, Permit Rule Noncompliance, to Rule 110-D.
21. This ordinance adds Rule 114.1, Hearing
Request, to describe the process to request a hearing to contest a violation.
22. This ordinance adds Rule 114.2,
Administrative Compliance Hearing, to describe the process to initiate a
hearing, if required.
23. This ordinance adds Rule 114.3, Notice of
Hearing, to describe the requirements for notice of hearing.
24. 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.
25. This ordinance adds Rule 114.5,
Administrative Order, which provides direction to Hearing Officers upon
determination that a violation has occurred.
26. This ordinance adds Rule 115.1, Administrative
Penalties, to provide for the imposition of administrative penalties for
violation of any provision of District Rules and Regulations, and to identify factors
for the Hearing Officer to consider in setting the administrative penalty. Provision is also made for suspension of
penalties.
27. 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.
28. 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.
29. This ordinance adds Rule 116, Failure to
Comply with an Administrative 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.
30. 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.
31. This ordinance adds Rule 117, Report of
Compliance with Administrative Order, describing the reporting process to
document compliance with an order.
32. 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.
33. 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.
34. This ordinance adds Rule 119.1, Late Payment
Charges, to allow recovery of late payment charges on fines imposed but not
timely paid.
35. 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.
36. 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.
37. 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.
38. This
ordinance adds Rule 119.5, Recording of Lien, to describe the time and manner
of recording liens.
39. This ordinance adds Rule 119.6, Satisfaction
of Lien, to describe the process of satisfying liens once full payment has been
received.
40. 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 creates an administration enforcement process in accord with Government Code Section 53069.4.
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Section Three: Amendment
of Rule 11 (Definitions)
A.
The following terms shall be added to Rule 11,
Definitions, of the Rules and Regulations of the District and unless the
context specifically indicates otherwise, this term shall be defined as set
forth below in bold italics (bold italics). Numbering is provided for ease of review.
1.
Abatement Order – “Abatement Order” shall mean an order
issued by a Hearing Officer at the conclusion of a hearing on a cease & desist
or public nuisance violation. An
Abatement Order may be issued in conjunction with an Administrative Compliance
Order.
2. Administrative
Citation- “Administrative Citation” shall mean a written notice of violation of
District Rules and Regulations which are minor or transient in nature. Examples of violations 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.
3.
Administrative Compliance Order – “Administrative
Compliance Order” shall mean a written order issued by the General Manager directing
any Person responsible for serious, continuing or recurring violations to take
affirmative action to remedy consequences of those violations. Administrative Compliance Orders are in
addition to all other legal remedies, criminal or civil, which may be pursued
by the Water Management District. An Administrative
Compliance Order may be issued in conjunction with a Cease & Desist Order.
4.
Administrative Order – “Administrative Order” shall mean
an order issued by a Hearing Officer at the conclusion of a hearing on a
violation.
5.
Cease & Desist Order – “Cease & Desist Order”
shall mean an order issued by the General Manager prohibiting a Person from
continuing a particular course of conduct.
Cease & Desist Orders are in addition to all other legal remedies,
criminal or civil, which may be pursued by the Water Management District. A Cease & Desist Order may be issued in
conjunction with an Administrative Compliance Order.
6.
Enforcement Officer – “Enforcement Officer” shall mean
an employee or agent of the Water Management District with the authority to
enforce any provision of the District Rules and Regulations.
7.
Hearing Officer – “Hearing Officer” shall mean a seated Director
of the MPWMD selected by rotation to conduct an administrative hearing.
8.
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 & Desist Order/Compliance
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 and/or results in
Water Waste, the General Manager shall issue a Cease & Desist Order and/or Administrative
Compliance 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 or creating or fostering water
waste.
2. The Cease & Desist Order and/or
Compliance Order shall:
a. Describe the nature of the Public Nuisance, Water
Waste or other activity that was created maintained or fostered by or on the
subject property; and
b. Specify a compliance date by which the Public
Nuisance, Water Waste or other activity shall cease.
c. Specify a compliance date by which remedial
activity shall be completed to ameliorate the effects of the Public Nuisance,
Water Waste or other activity.
d. State the proposed
financial penalty.
3. A Cease & Desist Order and/or Administrative
Compliance 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 and/or Water Waste unless and until
a Hearing Officer 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 as shown in bold italics (bold italics) 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 as shown in bold italics (bold italics) shall be added as Rule 111:
RULE 111 ADMINISTRATIVE CITATION
A. Administrative Citations are to 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, may adopt guidelines to guide staff's implementation of the 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 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 AND CEASE
&
DESIST ORDER
A. Administrative Compliance Orders and/or Cease
& Desist Orders generally address violations of District Rules and
Regulations or ordinances that the General Manager, in his or her sole
discretion, deems to constitute a Public Nuisance or Water Waste, or 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 Administrative Compliance Order
and/or a Cease & Desist Order to any Person responsible for the violation. The Board of Directors, by Resolution, may adopt
guidelines to guide staff's implementation of Administrative Compliance and
Cease & Desist Order process provided by this Rule.
C. Each
Administrative Compliance Order or Cease
& Desist Order shall set forth a description of the observed violation(s),
a description of what the Responsible Party is required to do (or to refrain
from doing) to bring the water use or property into compliance, and the date by
which compliance must be achieved. The Order
shall provide notice as to administrative and fiscal penalties that shall
accrue if compliance with the Order is not achieved by the date listed on the Order. Each Administrative Compliance Order or Cease
& Desist 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 and/or Cease & Desist
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 and other fiscal consequence
for the Rules and Regulations violation determined in accord with these Rules
and Regulations;
5. The action(s)
required to correct the violation;
6. Penalties 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, or as prohibited
by the Cease & Desist Order;
8. A description
of the Administrative Compliance process, including the time within which the
Administrative Compliance Order or Cease & Desist 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 111.6 (Alternative Enforcement)
The following text as shown in bold italics (bold italics) shall be added as Rule 111.7:
RULE 111.6 ALTERNATIVE
ENFORCEMENT
A. The District Board may refer to its General
Counsel administrative actions for violations of District Rules and Regulations
which involve complex, continuing or recurring violations, or actions where the
potential penalty may exceed ten thousand dollars ($10,000), or actions for
administrative abatement of public nuisances.
B. The action shall commence with the issuance
of a written order to the Person responsible for the violation setting 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 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 order may be contested
through an administrative hearing process.
An Administrative Order issued after hearing may contain a requirement
to correct any violations determined to exist, together with an order to pay
administrative penalties and costs.
C. An
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 violated and a description of the
circumstances pertaining to the violation;
4. The actions required to correct the
violation;
5. The penalty related to the violation, if
compliance is not achieved;
6. A prohibition
on the continuation or repeated occurrence of the Rules and Regulations
violation described in the order;
7. A
description of the administrative compliance process, including the time within
which the 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 Rule; and
8. The name and
signature of the General Counsel or his delegated agent acting as Enforcement
Officer.
D. Any recipient of a Rule 111.6 order may
contest that there was a violation of District 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 order.
E. If the District General Counsel determines
that all violations have been corrected within the time specified in the order,
no further action shall be taken. Notice
of this action shall be forwarded to any party requesting a hearing. If full compliance with each violation is not
achieved within the time specified in the order, the General Counsel shall
coordinate with an Administrative Law Judge and prepare a written notice of
hearing for the judge’s signature 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.
F. Actions brought pursuant to this Rule shall
be heard by an Administrative Law Judge (ALJ) retained through the California
Office of Administrative Hearings (OAH) in accord with Government Code
§27727. Compensation for ALJ services
shall be by contract with OAH.
G. The General Manager is authorized to enter
into contract with OAH for these services and to budget for this expense.
H. The provisions of Rule 113.1 and Rules 114.3
through 119.6 apply to a Rule 111.6 proceeding.
The following text as shown in bold italics (bold italics) 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 Ten: Amendment of Rule 112 (Administration of Rationing Penalties)
Rule 112 is renamed Hearing Officer; Compensation.
The following text as shown in bold italics (bold italics) shall be added as Rule 112:
RULE 112
HEARING OFFICER; COMPENSATION
A. Each of
the seven (7) members of the Board of Directors of the District shall serve as
a Hearing Officer to conduct administrative hearings.
B. Compensation
shall be limited to each day of hearing and treated as a meeting pursuant to
Water Code §§ 20200 through 20207 and MPWMD Ordinance Nos. 113 and 126. No compensation shall be paid for hearing
preparation or drafting Administrative Orders.
The monthly cap of ten (10) meetings, in accord with Water Code §20202,
applies.
Section Eleven: Addition of Rule 112.5 (Hearing
Officer Rotation)
The following text as shown in bold italics (bold italics) shall be added as Rule 112.5:
RULE 112.5
HEARING OFFICER ROTATION
A. Hearing
Officer assignments shall be rotated in the following order: Division 1, 2, 3,
4, 5, Board of Supervisors Representative, and Mayoral Representative. If a Hearing Officer is unable to serve for any
reason, the next Hearing Officer in rotation shall be assigned.
B. A Hearing
Officer shall not be qualified to hear an Administrative Citation,
Administrative Compliance Order, or Cease & Desist Order respecting any
person who resides within that Board Member’s election division, or who resides
in the city or unincorporated area represented by that appointed Board Member. Should every potential Hearing Officer be
disqualified by the effect of this Rule, a Board Member shall be selected by
random lot to conduct the hearing, and that Board Member shall then be
qualified to issue an appropriate Administrative Order, or Abatement Order.
Section
Twelve: Addition
of Rule 113.1 (Administrative Fines)
The following text as shown in bold italics (bold italics) 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 Cease & 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. The amounts of the fines 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 any increased fines for repeat violations of the same provision
by the same Person within twelve (12) months from the date of the
Administrative Citation. The schedule of
fines shall also specify the amount of any late payment charges imposed for the
payment of a fine after its due date.
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 Thirteen: Addition
of Rule 113.2 (Advance Deposit Hardship Waiver)
The following text as shown in bold italics (bold italics) 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 Fourteen: Addition
of Rule 114.1 (Hearing Request)
The following text as shown in bold italics (bold italics) shall be added as Rule 114.1:
RULE 114.1 HEARING
REQUEST
A. Any recipient
of an Administrative Citation,
Administrative Compliance Order, or a Cease & 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 fine or consequence 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 Cease & 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.
C.
No hearing to contest an Administrative Citation, Administrative
Compliance Order, or a Cease & Desist Order before a Hearing Officer shall
be held unless the fine has been deposited in advance in accordance with Rule
113.1 or an advance deposit hardship waiver has been issued in accordance with
Rule 113.2.
Section Fifteen: Addition
of Rule 114.2 (Administrative Compliance Hearing)
The following text as
shown in bold italics (bold italics) 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, Administrative Compliance Order,
or Cease & Desist 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, Administrative
Compliance Order, or Cease & Desist Order, the General Manager shall advise the Hearing Officer. The Hearing
Officer shall be designated
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
Sixteen: Addition
of Rule 114.3 (Notice of Hearing)
The following text as shown in bold italics (bold italics) 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 Cease & 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 an Administrative
Citation, Administrative
Compliance Order, or a Cease & 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 Cease & Desist Order, pursuant
to this Regulation to appear at the hearing shall constitute a failure to
exhaust administrative remedies.
Section Seventeen: Addition of Rule 114.4 (Compliance
Hearing; Findings)
The following text as shown in bold italics (bold italics) 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 issued
pursuant to these Rules & Regulations.
B. The
Hearing Officer shall consider written and oral evidence. Evidence
regarding the alleged violation or compliance actions may be presented by any
party, including the alleged violator, the owner or occupant of 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 Cease & Desist Order to comply with that citation prior to the
compliance date. The Hearing Officer may take into
consideration any condition or situation beyond the control of a Person subject
to an Administrative Compliance Order or Cease & 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;
2. Whether a nuisance or water waste occurs 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 citation or 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 citation
or 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. Any fine
amount on deposit with the District shall be retained by the District. If no fine has been deposited pursuant to an
advance deposit hardship waiver, the Hearing Officer shall set forth in the
order a payment schedule for the fine.
I. If the Hearing Officer
finds that no violation has occurred or that the violation was corrected within
the time period specified in the citation or 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. Any fine deposited with the District shall be
refunded.
J. If
the Hearing Officer finds a nuisance or water waste 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 activity;
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
Eighteen: Addition
of Rule 114.5 (Administrative Order)
The following text as shown in bold italics (bold italics) shall be added as Rule 114.5:
RULE 114.5 ADMINISTRATIVE
& ABATEMENT ORDERS
If
the Hearing Officer determines, by a preponderance of the evidence, that a
violation occurred which was not corrected within the time period specified in
the citation or order,
the Hearing Officer shall issue an Administrative Order or Abatement Order that
imposes any or all of the following:
A. An order to
correct, or to abate, 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
Nineteen: Addition
of Rule 115.1 (Administrative Penalties)
The following text as shown in bold italics (bold italics) 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 or water waste, 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. 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 and/or water
waste;
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.
C. 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.
D. 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.
E. Administrative
penalties shall be due by the date specified in the Administrative Order.
F. 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.
G. If the
violation is not corrected as specified in the Hearing Officer’s Administrative
Order, 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.
H. 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: Addition
of Rule 115.2 (Administrative Costs)
The following text as shown in bold italics (bold italics) shall be added as Rule 115.2:
RULE 115.2 ADMINISTRATIVE
COSTS
A. The Hearing Officer may 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 citation or order.
B. The Hearing Officer may 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 citation or order.
C. The administrative costs may 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 citation or 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-One: Addition of Rule 115.3 (Interest)
The following text as shown in bold italics (bold italics) 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-Two: Addition of Rule 116 (Failure to Comply
with an Administrative Compliance Order
The following text as shown in bold italics (bold italics) shall be added as Rule 116:
RULE 116 FAILURE
TO COMPLY WITH AN ADMINISTRATIVE ORDER OR CEASE & DESIST 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 an Administrative Order or Cease & Desist Orcer 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-Three: Addition of Rule 116.5 (Recovery of
Administrative Penalties and Costs)
The following text as shown in bold italics (bold italics) 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-Four: Addition of Rule 117 (Report of Compliance
with Administrative Order)
The following text as shown in bold italics (bold italics) 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 conformity
with an Administrative Order or Cease & Desist 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-Five: Addition of Rule 117.5 (Compliance Dispute)
The following text as shown in bold italics (bold italics) 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 Hearing Officer.
B. The hearing on
the compliance dispute shall be noticed and conducted in the same manner as a
hearing on an order or citation
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-Six: Addition of Rule 118 (Judicial Review)
The following text as shown in bold italics (bold italics) 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 or Abatement 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
Twenty-Seven: Addition of Rule 119.1 (Late Payment Charges)
The following text as shown in bold italics (bold italics) 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 Twenty-Eight: Addition
of Rule 119.2 (Recovery of Administrative
Citation Fines and Costs)
The following text as shown in bold italics (bold italics) 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 Twenty-Nine: Addition
of Rule 119.3 (Lien Procedure)
The following text as shown in bold italics (bold italics) 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: Addition
of Rule 119.4 (Lien Hearing and Protests)
The following text as shown in bold italics (bold italics) 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-One:
Addition of Rule 119.5 (Recording of Lien)
The following text as shown in bold italics (bold italics) 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-Two: Addition of Rule 119.6 (Satisfaction of Lien)
The following text as shown in bold italics (bold italics) 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-Three: Publication and Application
The provisions of this ordinance shall cause the amendment and republication of Rule 11, the amendment of Rules 110, 111, 112, 113 and 114, and the addition of Rules 110.5, 111.5, 111.7, 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-Four: Effective
Date
This ordinance shall be given effect at 12:01 a.m. on _________, 2008.
[Insert the date for the thirtieth day after enactment on second reading].
Section Thirty-Five: Sunset
This
ordinance shall not have a sunset date.
Section Thirty-Six: 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 ________, 2008, by the following vote:
AYES:
NAYS:
ABSENT:
I,
Darby W. Fuerst, 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 ___________, 2008.
Witness my hand and seal of the Board of Directors
this _____ day of ____________, 2008.
________________________________
Darby
W. Fuerst, Secretary to the Board
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