ITEM: PUBLIC HEARINGS
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13. |
CONSIDER SECOND (A) ADOPT SECOND (B) ADOPT RESOLUTION 2008-06 –
ESTABLISHING RULE 113.1, SCHEDULE
OF FINES
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Meeting
Date: |
May 19, 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 May 12, 2008, the Rules & Regulations Review Committee reviewed the fee resolution, suggested changes, and recommended that the ordinance be submitted to the Board for approval. |
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CEQA Compliance: N/A |
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SUMMARY: This matter presents, for second reading, an ordinance to enforce District Rules and Regulations through an administrative process. The Board unanimously approved the first reading draft at its meeting on April 21, 2008 upon the recommendation of the Rules & Regulations Review Committee. The Rules & Regulations Review Committee, at its meeting of May 12, 2008, also reviewed the proposed resolution setting fines to be used in conjunction with the administrative enforcement process.
RECOMMENDATION: No changes have been proposed to the draft ordinance (included as Exhibit 13-A.) and staff recommends its adoption on second reading as presented. The Rules & Regulations Review Committee has proposed the fine schedule (Exhibit 13-B) be adopted by Resolution (Exhibit 13-C).
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. 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 April 21, 2008, meeting unanimously passed the first reading draft that calls for the Board Directors, in rotation, to serve as hearing officers except for unusual matters, when the Board as an alternative may refer select hearings to an administrative law judge (ALJ) through the Office of Administrative Hearings (OAH) in accord with Government Code §27727. Compensation for ALJ services would then 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.
Fines to be imposed are to be enacted by resolution (Exhibit 13-C) and may later be adjusted by subsequent resolution. The Rules & Regulations Review Committee has proposed the fine schedule (Exhibit 13-B) that will be incorporated by reference in that resolution. Many of the proposed fines are consistent with penalties for violating state laws not involving serious offenses (i.e., inflicting injury to persons or major property damage). The Uniform Bail and Penalty Schedule (UBP Schedule) sets penalties and bail forfeitures for first offenses involving violations of a less serious nature, such as those involving traffic, boating, forestry, fish and game, public utilities, parks and recreation, and business licensing (California Rules of Court, Rule 4.102, January 2007 edition). The UBP provides the reference point for fines that are set at $150 for the first violation, for second violations in a one year period at $300; and for the third or more violations in a one year period many proposed fines are set at $750.
The Rules & Regulations Review Committee, however, recommends that select fines not be based on the UBP. For select minor offenses (e.g., restaurant service of water without request) would instead call for a courtesy notice in lieu of a fine for the initial violation, and a $50 fine for a second violation following the first notice. Other matters of non-compliance will result in a fine only if a person fails to comply with notice that compliance is required, for instance, failure to return a water use survey will result in a $50 fine only if the form is not completed within 2 weeks of notice. Other violations call for daily fines, such as $50 per day for installation of an illegal connection. Select violations set a base fine, which then escalates if the circumstance is not corrected after notices are sent.
With respect to water rationing violations, the fine schedule incorporates fines that will be set by Rule 175, under Ordinance 134. That Rule will also allow future revisions to water rationing to be made by resolution, but relying on this reference ensures that the proposed fine schedule imposed under this item does not conflict with the later enactment of Ordinance 134. It is envisioned that future versions of the fine resolution shall set forth the then-current set of water rationing fines to ensure consistent enforcement.
13-A Draft
Second
13-B Draft Schedule of Fines
13-C Draft Resolution No. 2008-06 Establishing Rule 113.1, Schedule of Fines
U:\staff\word\boardpacket\2008\2008boardpackets\20080519\PublicHrgs\13\item13.doc