RULES & REGULATIONS REVIEW COMMITTEE
ITEM:		ACTION ITEMS
2.	CONSIDER REVISED CONCEPT ORDINANCE THAT WOULD ADD TO AND AMEND THE PROCESS FOR THE ADMINISTRATIVE ENFORCEMENT OF DISTRICT RULES AND REGULATIONS
Meeting Date:			January 7, 2008	Budgeted:	N/A
From:			David C. Laredo,	Program/	N/A
			General Counsel	Line Item No.:
Reviewed By:			David A. Berger,	Cost Estimate:
			General Manager
General Counsel Approval: Yes
Committee Recommendation:
CEQA Compliance: N/A

SUMMARY: This matter returns to the Rules & Regulations Review Committee a revised concept draft ordinance to enforce District Rules and Regulations through an Administrative Citation Process. The concept draft has been modified to address issues raised by the Board at its October 15, 2007 meeting. The concept draft ordinance deletes the community hearing panel model in favor of using Board Directors, in rotation, as hearing officers. The administrative enforcement process is also limited to issuance of citations. The committee shall also review a draft resolution to impose a fine schedule, the fine schedule, and alternative language that could enable an ALJ to hear more complex hearing matters. Fine options available to the committee are to (1) use a Uniform Bail and Penalty Schedule (UBP Schedule) for less serious offenses; as used by the local court; (2) to propose fines uniquely set by the District, which may or may not be modeled on those used by the courts of other agencies, and/or (3) to impose graduated fines for water rationing violation.

RECOMMENDATION: The Committee should review the revised concept draft enforcement ordinance (attached as Exhibit 2-A), the draft resolution to impose a fine schedule (attached as Exhibit 2-B), the draft fine schedule (attached as Exhibit 2-C), and alternative language that could enable an ALJ to hear more complex hearing matters (attached as Exhibit 2-D.) The committee may also wish to review fines used by other agencies such as the schedule used by the City of San Jose (attached as Exhibit 2-E.)

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, Carmel River bank modifications, private well use and registration and other legal mandates in District Rules and Regulations require adherence to ensure consistency and fairness in their administration, given that the majority of citizens voluntarily comply following District staff notice and follow-up contact.

The Board at its October 15, 2007 regular meeting reviewed an earlier version of the attached draft ordinance that set forth an Administration Citation, Administrative Order and nuisance abatement Cease and Desist enforcement process as allowed by Government Code Section 53069.4. The revised draft deletes the Administrative Order and nuisance abatement Cease and Desist enforcement process, leaving only the Administration Citation procedure. This deletion was made to streamline the enforcement process and to limit apparent ambiguities that could arise from multiple administrative enforcement options.

Board members also expressed a desire to see this legislative proposal in complete form, including a suggested fine schedule for Administrative Citations. A fine schedule was not included in the earlier version, as staff and counsel intended to develop it after first reading and prior to adoption of the ordinance, in the interest of efficiency. For reasons of fairness and consistency, staff and counsel believe that the District’s Administrative Citation fines should 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 Monterey County superior court administrator for assistance in determining the most appropriate and reasonable penalty amounts to propose for the District’s Administrative Citation ordinance. The court administrator recommended that the District refer to the Uniform Bail and Penalty Schedule (UBP Schedule) that provides guidance in setting 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 proposed District Administrative Citation fine amounts shown in Exhibits 2-B and 2-C are based on Section 4 H of the UBP Schedule that sets the “minimum total bail” amount at $146 (staff rounded this figure to $150). For the second violation in a one year period this amount would double to $300; and for the third or more violations in a one year period the proposed fine amount is $750. The Board would make future adjustments to the District’s Administrative Citation fine by subsequent resolution.

As an alternative to using the UBP Schedule, the committee may choose to propose a unique set of fines specifically to address District requirements. In so doing, the committee would provide direction to staff to complete the Fine Schedule template attached as Exhibit 2-C. Fines may be modeled on those used by other agencies, such as the schedule used by the City of San Jose (Exhibit 2-E). Also attached is a suggested late penalty charge provision that is proposed to be included in the Fine Schedule (Exhibit 2-C-1).

With respect to water rationing violations, the committee may wish to contemplate using graduated fines. In other 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 meter at the first stage of drought (our Stage 4) would receive a warning letter/notice.  After that, the first violation would cost $20, 2nd $40, 3rd $80, etc.  The same meter size in the next stage of drought (our Stage 5) after the warning letter would be $40, 2nd $80, 3rd $160, etc.  This approach would emphasize the growing importance of avoiding violations as the water supply becomes more perilous. The committee should provide direction on whether the fine schedule should incorporate this sort of graduated enforcement.

Although the Government Code allows administrative enforcement of District rules before an independent administrative hearing officer, the Board directed that its members serve as hearing officers. The revised draft follows this model. A de novo court review would nonetheless take place for any administrative decision if a person challenges the action.

Alternative language that could enable an ALJ to hear more complex hearing matters is also attached for committee discussion.

EXHIBITS

2-A Revised concept draft enforcement ordinance

2-B Draft resolution to impose a fine schedule

2-C Draft fine schedule

2-C-1 Late Penalty Charge

2-D Alternative language to enable an ALJ to hear complex matters

2-E San Jose City Fine Schedule

U:\General (NEW)\MPWMD - Main\WMD Ordinances\Enforcement Ord Staff Note (edited-3).doc

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