EXHIBIT
2-A
ORDINANCE NO. _____
AN ORDINANCE OF THE BOARD OF DIRECTORS OF THE
MONTEREY PENINSULA WATER MANAGEMENT
DISTRICT
TO AMEND THE PROCESS BY WHICH THE DISTRICT
ENFORCES ITS RULES AND REGULATIONS
1. The
Water Management District (“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 District is authorized by law to adopt procedures to enforce its Rules & Regulations and ordinances.
3. The Board of Directors has determined that a need exists to modify the manner in which it may enforce the Rules and Regulations of the District. Enforcement issues have become increasingly varied and complex over the years.
4. Staff and District resources will be conserved and better utilized by adoption of streamlined enforcement.
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 and republish the Rules and Regulations of the Water Management District.
NOW THEREFORE be it ordained as follows:
Section One: Short
Title
This ordinance shall be known as the Administrative Enforcement Ordinance of the Monterey Peninsula Water Management District.
Section Two: Purpose
This ordinance sets forth an Administration Citation and Administrative Order enforcement process as allowed Government Code Section 53069.4.
Section Three: General Enforcement
A. The District
Rules and Regulations shall be modified as follows: The existing text of Rule 110 shall be
labeled as Rule 110 A.
B. The
District Rules and Regulations shall be modified as follows: The existing text of Rule 111 shall be moved to
Rule 110 B.
C. The following
text, shown in bold, italic, underscored text (bold, italic, underscored text)
shall be added as Rule 110
C to the District Rules and Regulations, as follows:
C. Cease and Desist 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, the General Manager shall issue a nuisance
abatement Cease and Desist 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.
2. The nuisance abatement Cease and Desist Order
shall:
a.
Describe the nature of the public nuisance being created maintained or fostered
by or on the subject property; and
b. Specify
a compliance date by which the public nuisance shall cease.
3. A nuisance
abatement Cease and Desist 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 unless and until the
Board or a court of competent jurisdiction determines otherwise.
D. The
District Rules and Regulations shall be modified as follows: The existing text of Rule 114 shall be moved
to Rule 110 D.
Section Four: Administrative Remedies
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 110.5 to the District Rules
and Regulations, as follows:
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 Five: Administrative Citation
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 111 to the District Rules and
Regulations, as follows:
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
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, or to the provisions of any
ordinance, 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 Six: Administrative Compliance Order
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 111.5 to the District Rules
and Regulations, as follows:
RULE 111.5 ADMINISTRATIVE
COMPLIANCE ORDER.
A. Administrative Compliance Orders generally address
violations of District Rules and Regulations and ordinances that the General
Manager, in his or her sole discretion, deems not suitable for the Administrative
Citation process contemplated by this Regulation. For example, and not by exclusion, Administrative
Compliance Orders be used for 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 compliance order to any Person
responsible for the violation. The Board
of Directors, by Resolution, shall adopt guidelines to guide staff's
implementation of Administrative Compliance Order process provided by this
Rule.
C. The
Compliance order sets 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 Compliance Order provides notice as to
administrative penalties that shall accrue if compliance with the Order is not
achieved by the date listed on the Compliance order. The Administrative Compliance 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 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 for the Rules and Regulations violation determined in accord with
this Regulation;
5. The actions required to correct the
violation;
6. The
penalty 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;
8. A
description of the Administrative Compliance Order process, including the time
within which the Administrative Compliance 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.
E. Each
Administrative Compliance Order shall be served in accord with the provisions
of Rule 111.7.
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 111.7 to the District Rules
and Regulations, as follows:
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: Hearing Officer Panel
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112 to the District Rules and
Regulations, as follows:
RULE 112
HEARING OFFICER PANEL
A Hearing Officer Panel, consisting of
seven (7) members appointed by the Board of Directors of the District shall be
created and empanelled.
The appointment, performance evaluation,
compensation and/or benefits provided to any member of the Hearing Officer
Panel shall not be directly or indirectly conditioned upon the amount of Administrative
Citation fines upheld by the Hearing Officer.
Section Nine: Hearing Officer Panel Appointment
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112.1 to the District Rules
and Regulations, as follows:
RULE 112.1
HEARING OFFICER PANEL APPOINTMENT; REMOVAL
A. Members
of the Hearing Officer Panel shall be nominated by seated Directors, and
confirmed by a majority of the District Board.
Each appointee to the Hearing Officer Panel shall serve for a two-year
term, provided however, that four members of the panel shall be appointed to
terms ending on January 31st in even-numbered years, and three members of the
panel shall be appointed to terms ending on January 31st in odd-numbered
years. Any vacancy on the Hearing
Officer Panel shall be filled for the unexpired remainder of that term.
B. Any
member of the Hearing Officer Panel may be removed prior to the expiration of
his or her term by a majority vote of the Board, in the Board’s discretion.
Section Ten: Presiding Officer Appointment
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112.2 to the District Rules
and Regulations, as follows:
RULE 112.2
PRESIDING OFFICER
The Chair of the District Board shall
select one member of the Hearing Officer Panel to be the Presiding
Officer. The Presiding Officer shall
serve in that capacity at the pleasure of the Board Chair. Should the Presiding Officer be absent or
unavailable, a majority of the remaining members of the Hearing Officer Panel
shall appoint an Acting Presiding Officer to perform the duties of the
Presiding Officer.
Section Eleven: Panel Meetings
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112.3 to the District Rules
and Regulations, as follows:
RULE 112.3
HEARING OFFICER PANEL MEETINGS
The Presiding Officer shall act as the
Chair of the Hearing Officer Panel at any meeting of that Panel. All meetings of the Panel shall comply with
the provisions of the Ralph M. Brown Act.
Section Twelve: Panel Rules
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112.4 to the District Rules
and Regulations, as follows:
RULE 112.4
HEARING OFFICER PANEL RULES AND PROCEDURES
The Hearing Officer Panel may
establish and modify, taking into consideration the advice of District General
Counsel, rules and procedures that shall govern the conduct of any hearing to
review an Administrative Citation Administrative Compliance Order, or a
nuisance abatement Cease and Desist Order.
All such rules and procedures shall be provided to any participant in
that hearing.
Section Thirteen: Hearing Officer Selection
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 112.5 to the District Rules
and Regulations, as follows:
RULE 112.5
HEARING OFFICER SELECTION
The Presiding Officer of the Hearing Officer Panel
shall, by random lot, designate one member of the Hearing Officer Panel to be
the Hearing Officer for each Administrative Citation hearing. The Presiding Officer may be chosen as a
Hearing Officer. Should a selected
Hearing Officer be disqualified for cause, or should that Hearing Officer
otherwise be unable to conduct the hearing, the Presiding Officer shall by
random lot designate a successor Hearing Officer from available members of the
Hearing Officer Panel.
Section Fourteen: Administrative Citation Fines
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 113.1 to the District Rules
and Regulations, as follows:
RULE 113.1 ADMINISTRATIVE
CITATION 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 Administrative Citation unless a
deposit waiver has been issued in accord with Rule 113.2.
B. Any paid
Administrative Citation fine shall be refunded in accordance with Section
1.15.100 if it is determined, after a hearing, that the Person charged in the
Administrative Citation was not responsible for the violation or that there was
no violation as charged in the Administrative Citation.
C. Payment of
a fine under this Regulation shall not excuse or discharge any continuation or
repeated occurrence of the violation that is the subject of the Administrative
Citation.
Section Fifteen: Advance Hardship Waiver
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 113.2 to the District Rules
and Regulations, as follows:
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 Administrative 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 Administrative
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
Sixteen: Hearing Request
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 114.1 to the District Rules
and Regulations, as follows:
RULE
114.1 HEARING REQUEST.
A. Any
recipient of an Administrative Citation, Administrative Compliance Order, or a
nuisance abatement Cease and 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 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 Administrative Citation, Administrative Compliance Order, or a
nuisance abatement Cease and 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.
Section Seventeen: Administrative Compliance
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 114.2 to the District Rules
and Regulations, as follows:
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 or Administrative Compliance
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 or Administrative
Compliance Order, the General Manager shall advise the Presiding Officer
of the Hearing Officer Panel. Each request for a hearing officer shall also
be forwarded to the Presiding Officer of the Hearing Officer Panel. The
Presiding Officer of the Hearing Officer Panel shall designate a Hearing
Officer 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
Eighteen: Notice of Hearing
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 114.3 to the District Rules
and Regulations, as follows:
RULE 114.3 NOTICE OF HEARING.
A. Every
notice of hearing on a Administrative Citation, or Administrative Compliance
Order, or a nuisance abatement Cease and 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 a Administrative
Citation, Administrative Compliance Order, or a nuisance abatement Cease and
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
nuisance abatement Cease and Desist Order, pursuant to this Regulation, to
appear at the hearing shall constitute a failure to exhaust administrative
remedies.
Section
Nineteen: Compliance Hearing
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 114.4 to the District Rules
and Regulations, as follows:
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 Compliance order issued pursuant to Rules 111 or
111.5, and in accord with rules and procedures as may be
promulgated by the Hearing Officer Panel.
B. The
Hearing Officer shall consider written or oral evidence pursuant to rules and
procedures set by the Hearing Officer Panel pursuant to Rule 112.4. Evidence regarding the alleged violation or
compliance actions may be presented by any party, including the alleged
violator, the owner or occupant 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 nuisance abatement
Cease and Desist Order to comply with that order prior to the compliance
date. The Hearing Officer may take into
consideration any condition or situation beyond the control of a Person subject
to a nuisance abatement Cease and Desist Order that prevents compliance with
that order.
D. The Compliance order and any additional report submitted by the
District enforcement officer shall constitute prima facie evidence of the
respective facts contained in those documents.
The 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
and/or public nuisance;
2. Whether a nuisance exists 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 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 Compliance
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 that proceeding pursuant to Rule
115.2-A.
I. If the Hearing Officer finds
that no violation has occurred or that the violation was corrected within the time
period specified in the compliance 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.
J. If the Hearing Officer finds a nuisance requires abatement, the Hearing
Officer Board shall also issue a nuisance 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 public nuisance; 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
Twenty: Administrative
Order
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 114.5 to the District Rules
and Regulations, as follows:
RULE 114.5 ADMINISTRATIVE
ORDER.
If the Hearing Officer determines, by a preponderance of the evidence, that a
violation or public nuisance occurred which was not corrected within the time
period specified in the compliance order, 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 Twenty-One: Administrative Penalties
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 115.1 to the District Rules
and Regulations, as follows:
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, 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. Penalty fines for violation of the District Rules and
Regulations, and the fine for any Administrative Citation, 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 an increased penalty fine for repeat violation of the same
provision by the same Person within thirty-six (36) months from the date of an Administrative
Citation. The schedule of fines shall
specify the amount of any late payment charges imposed for the payment of a
fine after its due date.
C. 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;
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.
D. Administrative
penalties shall accrue from the date specified in the compliance order and
shall cease to accrue on the date the violation is corrected as determined by
the Hearing Officer.
E. 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, state or other
appropriate governmental agency.
F. Administrative
penalties shall be due by the date specified in the Administrative Order.
G. 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.
H. If the
violation is not corrected as specified in the Hearing Officer’s order to
correct, 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.
I. 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-Two: Administrative Costs
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 115.2 to the District Rules
and Regulations, as follows:
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 Compliance order.
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 Compliance order.
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 Compliance 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-Three: Interest
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 115.3 to the District Rules
and Regulations, as follows:
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-Four: Failure to Comply
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 116 to the District Rules and
Regulations, as follows:
RULE 116 FAILURE TO COMPLY WITH A COMPLIANCE ORDER.
Failure to pay 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 compliance 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-Five: Recovery of Penalties
and Costs
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 116.5 to the District Rules
and Regulations, as follows:
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-Six: Report of Compliance
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 117 to the District Rules and
Regulations, as follows:
RULE 117 REPORT
OF COMPLIANCE WITH ADMINISTRATIVE ORDER.
When the General Manager determines that compliance has been achieved after a compliance
order or nuisance abatement Cease and Desist Order has been sustained by the Hearing
Officer, the General Manager shall file a report with the Hearing
Officer Panel indicating that compliance has been achieved.
Section Twenty-Seven: Compliance Dispute
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 117.5 to the District Rules
and Regulations, as follows:
RULE 117.5 COMPLIANCE
DISPUTE.
A. If the
General Manager does not file a report pursuant to Rule 117, above, 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 Presiding Officer
of the Hearing Panel.
B. The
hearing on the compliance dispute shall be noticed and conducted in the same
manner as a hearing on a Compliance order 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-Eight: Judicial Review
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 118 to the District Rules and
Regulations, as follows:
RULE 118 JUDICIAL REVIEW.
Any Person aggrieved by an Administrative Order of the Board under this
Regulation, or by the final determination of any 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-Nine: Late Payment
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 119.1 to the District Rules
and Regulations, as follows:
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.
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 119.2 to the District Rules
and Regulations, as follows:
RULE 119.2 RECOVERY
OF ADMINISTRATIVE CITATION FINES AND COSTS.
The District may collect any past due Administrative Citation fines or late
payment charges by use of all available legal means.
Section Thirty-One: Lien
Procedure
A. The
existing text of Rule 113 shall be renumbered as RULE 119.3 LIEN PROCEDURE. That existing text shall be labeled as Rule
119.3 A.
B. The
following text, shown in bold, italic, underscored text (bold,
italic, underscored text) shall be added as Rule 119.3 B through G, respectively, to the District Rules and
Regulations, as follows:
B. Whenever
the amount of any administrative penalty and/or administrative cost imposed by
the Board 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 he 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-Two: Lien Hearing
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 119.4 to the District Rules and
Regulations, as follows:
RULE 119.4 LIEN
HEARING AND PROTESTS.
A. Any Person
whose real property is subject to a lien pursuant imposed by the District may
file a written protest with the District 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-Three: Recording
of Lien
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 119.5 to the District Rules and
Regulations, as follows:
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-Four: Satisfaction of Lien
The following text, shown in bold, italic,
underscored text (bold, italic, underscored text) shall be added as Rule 119.6 to the District Rules and
Regulations, as follows:
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-Five: Publication and Application
The provisions of this ordinance shall cause amendment and republication of the Rules and Regulations of the Monterey Peninsula Water Management District as indicated.
This ordinance shall take effect at 12:01 a.m. on the 30th day after it has been enacted on second reading. This Ordinance shall not have a sunset date.
Section Thirty-Seven: Severability
If any
subdivision, paragraph, sentence, clause or phrase of this ordinance is, for
any reason, held to be invalid or unenforceable by a court of competent
jurisdiction, such invalidity 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 by Director __________, and second by Director ____________, the foregoing ordinance is adopted upon this ______ day of ________________, 2007, by the following vote:
AYES:
NAYS:
ABSENT:
I,
Witness my hand and seal of the Board of Directors this ________ day of ____________ 2007.
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Ordinances\Administrative Enforcement Ordinance1.doc
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