EXHIBIT 2-A
ORDINANCE NO. 131
AN ORDIDANCE 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 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.
10. This ordinance adds Rule 110.5,
Administrative Remedies, to provide authorization to use any administrative
remedy 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 111.7, Notices, to
identify how violation notice must be provided.
14. This ordinance renames Rule 112, Hearing Officer; Compensation,
to establish District Directors as Hearing Officers and
determine compensation for this service.
15. This ordinance adds Rule 112.5, Hearing
Officer Rotation, to describe the process of rotation selection of Hearing
Officers.
16. This ordinance moves the existing text of
Rule 113, Liens, to Rule 119.3-A.
17. This ordinance adds Rule 113.1,
Administrative Citation Fines, to establish the payment period for fines.
18. This ordinance adds Rule 113.2, Advance
Deposit Hardship Waiver, to provide a hardship process for the advance deposit
of fines.
19. This ordinance moves the existing text of
Rule 114, Permit Rule Noncompliance, to Rule 110-C.
20. This ordinance adds Rule 114.1, Hearing
Request, to describe the process to request a hearing to contest a violation.
21. This ordinance adds Rule 114.2,
Administrative Compliance Hearing, to describe the process to initiate a
hearing, if required.
22. This ordinance adds Rule 114.3, Notice of
Hearing, to describe the requirements for notice of hearing.
23. 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.
24. This ordinance adds Rule 114.5,
Administrative Order, which provides direction to Hearing Officers upon
determination that a violation has occurred.
25. 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.
26. 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.
27. 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.
28. 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.
29. 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.
30. This ordinance adds Rule 117, Report of
Compliance with Administrative Order, describing the reporting process to
document compliance with an order.
31. 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.
32. 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.
33. This ordinance adds Rule 119.1, Late Payment
Charges, to allow recovery of late payment charges on fines imposed but not
timely paid.
34. 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.
35. 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.
36. 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.
37. This
ordinance adds Rule 119.5, Recording of Lien, to describe the time and manner
of recording liens.
38. This ordinance adds Rule 119.6, Satisfaction
of Lien, to describe the process of satisfying liens once full payment has been
received.
39. 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 enforcement process as allowed by Government Code Section 53069.4.
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. Administrative Citation- “Administrative
Citation” shall mean a written notice of violation of District Rules and
Regulations 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
Order – “Administrative Order” shall mean an order issued by a Hearing Officer
at the conclusion of a hearing on a violation.
3.
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.
4.
Hearing
Officer – “Hearing Officer” shall mean a seated Director of the MPWMD selected
by rotation to conduct an administrative hearing.
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 existing text of Rule 114 shall be
moved to Rule 110-C.
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 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 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 111.7 (Notices)
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 Eight: 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
Nine: 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
Hearing Officer
assignments shall be by rotation 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, the
next Hearing Officer in rotation shall be assigned.
Section
Ten: 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 shall be paid to the District
within thirty (30) days from the date of the citation 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 thirty-six (36) 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 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
Eleven: 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.
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, 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
Twelve: 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 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 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, 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 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 Thirteen: 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, 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, 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
Fourteen: 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 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 to object to the determination that a violation has occurred and/or
that the violation has continued to exist.
The failure of any Person subject to an Administrative Citation pursuant
to this Regulation to appear at the hearing shall constitute a failure to
exhaust administrative remedies.
Section
Fifteen: 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 Rule 111.
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 to comply with that citation prior to
the compliance date.
D. The
citation 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. The
identity of each responsible Person;
3. The
failure of the violator or owner to take required corrective action within the
required time period;
4. The absence or extent of mitigating
conditions or situations beyond the control of the Person subject to the
citation.
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, 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, 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.
Section
Sixteen: 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
ORDER
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, 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
Seventeen: 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 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);
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 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
Eighteen: 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 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 citation.
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 citation.
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 citation.
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
Nineteen: 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: Addition of Rule 116
(Failure to Comply with an Administrative 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
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 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-One: 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-Two: 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 issued by a Hearing Officer, the
General Manager shall file a report with
the Hearing Officer indicating whether or not compliance has been
achieved.
Section
Twenty-Three: 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 a 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-Four: 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 a 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
Twenty-Five: 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-Six: 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-Seven: 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
Twenty-Eight: 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
Twenty-Nine: 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: 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-One: 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, 111.7, 112, 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-Two: Effective
Date
This ordinance shall be given effect at 12:01 a.m. on the _________.
[Insert the date for the thirtieth day after enactment on second reading].
Section Thirty-Three: Sunset
This
ordinance shall not have a sunset date.
Section Thirty-Four: 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, 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 ___________, 2008.
Witness my hand and seal of the
Board of Directors this _____ day of __________, 2008.
________________________________
David
A. Berger, Secretary to the Board
U:\General (NEW)\MPWMD - Main\WMD Ordinances\Administrative Enforcement
Ordinance4 (CLEAN -2).doc
U:\staff\word\committees\RulesRegsReview\2008\02\item2_exh2a.doc