Attachment 1 to Resolution No. 2008-13
ADMINISTRATIVE HEARING GUIDELINES OF THE MONTEREY PENINSULA WATER MANAGEMENT DISTRICT
Adopted by the MPWMD Board on July 21, 2008
The Monterey Peninsula Water Management District (Water Management District or District) has enacted a process, in accord with Government Code Section 53069.4, to enforce its Rules & Regulations. District Ordinance 133 enables use of Administrative Citations, Administrative Compliance Orders and other Orders to enforce its Rules & Regulations. The purpose of administrative enforcement is to 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 Water Management District’s rules and procedures.
As an alternative to the administrative enforcement process, the District Board may pursuant to District Rule 111.6, undertake traditional enforcement of its District Rule violations which involve complex, continuing or recurring violations, large potential penalties, or administrative abatement of Public Nuisances.
These Guidelines may be adopted or modified by Resolution in accord with District Rules 111 and 111.5 to guide implementation of the Administrative Order processes.
1.0 Citation Overview
Administrative Citations generally address violations that are minor or transient in nature, involving minor water waste, water rationing issues, permit condition compliance and other minor, non-recurring violations.
An Enforcement Officer issues an Administrative Citation (Citation) pursuant to District Rule 111 that lists the violation and assesses a fine. The Citation shall describe how the individual may pay the fine and/or request a hearing to contest the Citation. The fine must be deposited in advance of the hearing, but a procedure to waive the deposit is allowed for hardship. Interest applies to late payment of fines in accord with District Rule 115.3.
2.0 Administrative Compliance Overview
Administrative Compliance Orders (Compliance Order) generally address serious, continuing or recurring violations or similar matters, or violations not suitable for the Administrative Citation process.
A Compliance Order is issued by an Enforcement Officer pursuant to District Rule 111.5. It describes the 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 penalties that shall accrue if compliance is not achieved. The Compliance Order may also be contested through an administrative hearing process. The decision after hearing may contain an order to correct any violations determined to exist, together with an order to pay penalties and costs. The decision after hearing may include an Abatement Order, and may specify a compliance date by which remedial activity shall be completed to ameliorate the effects of a Public Nuisance or other activity.
A Public Nuisance refers to the maintenance or use of water or property within the boundaries of the Water Management District in a manner that jeopardizes or endangers the health, safety or welfare of persons on the property or in the surrounding area.
3.0 Process Overview
When a Citation is issued, the recipient may pay the fine as stated on the Citation, or pay the fine and request a hearing on the matter to contest his or her obligation to pay the fine.
When an Order is issued, the recipient may correct each violation as specified in the Order, subject to confirmation by the General Manager or his agent, or in the alternative may appear at a hearing conducted by a Water Management District Hearing Officer.
Any person disputing whether or not compliance has been achieved may request a compliance hearing before the Hearing Officer in accord with the provisions of District Rule 117.5.
4.0 Hearing Requirement
The recipient of a Citation may, within thirty (30) days from the date of the Citation, contest that there was a violation, or contest that he or she is the Responsible Party. The person requesting the hearing shall complete a Request for Hearing form obtained from the General Manager and return it to the Water Management District together with an advance deposit of the fine or notice that a request for an advance deposit hardship waiver has been filed.
4.2 Compliance Orders
The recipient of an Order, within thirty (30) days from the date of the Order, may contest that there was a violation, or contest that he or she is the Responsible Party by filing a Request for Hearing form from the General Manager. If no Request for Hearing is received within that time, and if full compliance as to each violation is not achieved within the time specified in the Order, the Enforcement Officer shall advise the Hearing Officer who shall nonetheless cause a hearing to be noticed and convened.
4.3 Hearing Cancellation
If the General Manager determines that all violations have been corrected within the time specified in the Administrative Citation or Order, and/or if the Request for a Hearing has been withdrawn, no further action shall be taken.
5.0 Hearing Officer Selection
5.1 Board Members
The Hearing Officer duty shall be rotated in accord with District Rule 112.5. Board Members shall serve as Hearing Officers in the following order: Division 1, 2, 3, 4, 5, Board of Supervisors Representative, and Mayoral Representative. If a Hearing Officer is unable to serve for any reason, that officer shall be skipped but shall serve on the first hearing for which he or she is then available to serve; until that time the next available Hearing Officer in rotation shall be assigned.
A Hearing Officer shall not hear a Citation Order respecting any person who resides within that Board Member’s election division, or who resides in the city or unincorporated area represented by that appointed Board Member. Should every potential Hearing Officer be disqualified by the effect of this Rule, a Board Member shall be selected by random lot to conduct the hearing, and that Board Member shall then be qualified to issue an appropriate Order.
5.2 Administrative Law Judge
Actions brought pursuant to District Rule 111.6 shall be heard by an Administrative Law Judge (ALJ) retained through the California Office of Administrative Hearings (OAH) in accord with Government Code §27727. Compensation for ALJ services shall be by contract with OAH.
6.0 Role of District General Counsel
District General Counsel, or his or her deputy, may provide general advice and consultation to District staff, members of the public, any Hearing Officer and/or any ALJ as to the District Rules & Regulations, District Ordinance 133, or the Administrative Citation, Administrative Order process that applies pursuant to Government Code Section 53069.4. District General Counsel, however, shall not act as District prosecutor or as defense counsel for any hearing, but shall instead assist and advise the Hearing Officer and/or ALJ. District General Counsel, upon request of the Hearing Officer or ALJ, may prepare a tentative decision, including proposed findings and order. The Hearing Officer or ALJ shall have sole authority to accept, reject or modify any tentative decision, findings or order.
District General Counsel, or his or her deputy, shall represent the Water Management District in any court-proceeding to review the administrative hearing, including but not limited to proceedings convened pursuant to Government Code Section 53069.4.
7.0 Notice of Hearing
Written notice of hearing shall 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. The notice shall comply with Rule 111.7, and shall contain the date, time and place at which the hearing shall be conducted. The notice shall include a service list identifying the representative for all participants, which list may be revised from time to time.
The 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.
8.0 Continuances, Postponement or Absence
The purpose of the hearings is to provide prompt resolution for each alleged violation. Accordingly, a request for continuance shall not ordinarily be granted. A continuance or postponement of a hearing is allowed only to accommodate the schedule of the Hearing Officer, or if the Hearing Officer finds good cause for the request from a party due to illness or other unforeseen circumstance preventing the appearance of a party, or a material witness. Mere inconvenience or difficulty in appearing shall not constitute “good cause.”
Requests for a continuance must be made in writing with supporting documentation attached, and received by the Hearing Officer prior to the hearing. The person requesting a postponement should notify all other participants of the request and provide them with any supporting documentation.
If a party fails to attend the hearing, a party may request a new hearing by filing a written “Motion to Set Aside Order” within ten (10) calendar days of the hearing. The Motion may be granted only upon proof of good cause for the non-attendance. The Hearing Officer may grant the Motion only for good cause and in the interest of justice.
The failure of any person subject to an Administrative Citation or Administrative Order to appear at the hearing shall constitute a failure to exhaust administrative remedies.
9.0 Hearing Overview
The administrative hearing is a civil hearing. The hearing provides the full opportunity for a person subject to an Administrative Citation or Administrative Order to object to the determination that a violation has occurred and/or that the violation continues to exist and/or that a Public Nuisance exists. The hearing may result in the imposition of fines, costs, liens, and/or other appropriate orders.
At the hearing, the burden of proof to establish a violation of a Water Management District Rule is by a preponderance of evidence. This means that it is more likely than not the violation occurred. This differs from a criminal proceeding in which the burden of proof required to prove guilt is beyond a reasonable doubt.
The Hearing Officer presides over the case, just as a judge would in a courtroom. The Hearing Officer is an elected official and is required by law to remain neutral.
The Hearing Officer shall conduct the hearing in an orderly manner and insist upon proper decorum by all persons present at the hearings. The intent of the hearing is to allow full and fair review of the issues.
At the beginning of the hearing, the Hearing Officer will identify his or herself, state expectations for the hearing and, if more than one matter is pending, the order in which cases will be called. When a case is called, both sides shall be given the opportunity to present their cases with testimony and evidence.
10.0 Hearing Process
Persons appearing at the hearing must be prepared to proceed, and should bring any witnesses, documents or other evidence intended to be used at the hearing.
Parties who fail to appear at the hearing shall be in default. The Hearing Officer may, as appropriate: continue the case, decide the case on the record in accordance with District Rules and these Guidelines; dismiss the case with prejudice; or proceed with the hearing on the merits. The failure of any recipient of a Citation or Order to appear at the hearing shall constitute a forfeiture of the fine and a failure to exhaust administrative remedies.
At the hearing, Water Management District staff shall submit a report on the alleged violation, set forth a recommendation as to relevant findings and conclusions that flow from the facts presented and a recommended decision based upon those findings and conclusions. The Citation or Order and any additional report submitted by the Water Management District shall constitute prima facie evidence of the respective facts contained in those documents. This means that the Citation or Order may be enough evidence by itself to prove the Water Management District’s case. The person who issued the Citation or Compliance Order is not normally required to appear at the hearing.
Evidence regarding alleged violations 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. Presentations must deal specifically with the violation set for hearing. Each person has the right to tell the Hearing Officer his or her side of the story, and support it with witnesses and evidence, such as documents, drawings, photos or other materials. All documents presented as evidence may be retained by the hearing Officer until after the matter is final.
Individuals may represent themselves or hire an attorney to represent them at their own expense. This is an administrative hearing; a party does not have a right to a public defender. A party does not have a right to a jury.
The Hearing Officer shall have all powers necessary to conduct fair and impartial hearings including, but not limited to, the power to:
1. Hold conferences for settlement or to simplify the issues;
2. Administer oaths and affirmations;
3. Hear testimony. Hearsay testimony may be admitted by the Hearing Officer in making his/her determination. The Hearing Officer shall determine the weight, if any, to be given to the testimony. The Hearing Officer may question witnesses and/or request additional information prior to closing the hearing;
4. Receive/Weigh Evidence. Technical rules of evidence shall not apply. Relevant documents may be received into evidence without formal proof of authentication. The Hearing Officer shall determine the weight, if any, to be afforded documents or testimony received into evidence;
5. Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing;
6. Regulate the course of the hearing and take action as needed to preserve proper decorum by all persons present at the hearings. If necessary, disruptive people may be removed from the hearing room and cause cases to be determined outside of their presence;
7. Issue a final order which includes findings of fact and conclusions of law; and
8. Impose penalties in accord with District Rule 115.1, issue orders consistent with applicable District Rules or other provisions of law, and assess costs upon finding a party liable for the charged violation in accord with District Rule 115.2.
The hearing shall be recorded. The Water Management District shall determine the manner in which the proceedings may be recorded or transcribed. Any party may obtain a copy of the official transcription at their own cost.
Alternatively, any party may request that the proceedings be recorded and transcribed by a certified court reporter. The cost of the court reporter shall be borne by the party requesting the court reporter. A copy of any such transcript shall be provided at no charge to the Hearing Officer. The Hearing Officer shall have sole discretion whether or not to certify that transcript as an official record of the hearing.
11.0 The Decision, Findings and Order
After all parties have been heard, the Hearing Officer shall take the matter under submission and thereafter render a decision that determines, based on a preponderance of the written and oral evidence presented at the hearing, whether to uphold or cancel the Citation or Order and shall list in the decision and findings supporting the decision that show the reasons for that decision.
The Hearing Officer shall further consider any objectively reasonable efforts made by a person who is subject to an Administrative Citation or Administrative Order to comply with that Citation or 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 an Administrative Order that prevents compliance with that Order.
Within a reasonable time following the conclusion of the hearing, the Hearing Officer shall make a determination, as to each alleged violation, which may include some or all of the following findings regarding each violation:
1. The existence of the violation, including reference to the Rule violated and a description of the circumstances pertaining to the violation;
2. The date of the violation or, if the date is unknown, the date the violation was identified;
3. Whether the violation constitutes a Public
Nuisance and requires abatement;
4. The identity of each responsible person;
5. The address or a definite description of the location where the violation occurred;
6. The failure of the violator or owner to take required corrective action within any required time period;
7. The absence or extent of mitigating conditions or situations beyond the control of the person subject to the Citation or Order;
8. Actions needed to correct the violation;
9. The penalty related to the violation; and/or
10. A prohibition on the continuation or repeated occurrence of the violation described in the Order;
The decision of the Hearing Officer shall be final.
Findings shall support the decision and show the reasons for that decision. Findings shall be supported by a preponderance of the evidence received at the hearing. The Hearing Officer shall determine the weight, if any, to be afforded documents, testimony or other materials received into evidence.
11.3 Administrative Order
If the Hearing Officer finds by a preponderance of the evidence that a violation has occurred and that the violation was not corrected within the time period specified in the Citation or Order, the Hearing Officer shall issue an Administrative Order as set forth below.
1. An order to correct each violation, including a schedule for correction where appropriate;
2. Penalties as provided by District Rule, Resolution or other provision of law; and/or,
3. Costs as provided in District Rule 115.2.
If the Hearing Officer finds a nuisance requires abatement, the Hearing Officer shall also issue an Abatement Order and may further impose any or all of the following:
4. An order to correct, or to abate, including a schedule for correction where appropriate to discontinue specific activity on the subject property, temporarily or permanently, as needed to protect the health, safety or welfare of persons or property on or near the subject property or to eliminate, lessen or prevent the continuation, exacerbation or reoccurrence of the detrimental impacts created by the activity;
5. 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/or
6. 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.
When the Hearing Officer determines a Citation or Order is upheld, the fine amount on deposit with the Water Management District shall be retained by the Water Management District. If the Citation or Order is upheld but the fine has not been deposited pursuant to an advance deposit hardship waiver, the Hearing Officer shall set forth in the decision a payment schedule for the fine.
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.
If the Hearing Officer determines that the Citation or Order should be canceled and the fine was previously deposited with the Water Management District, then the Water Management District shall promptly refund the amount of the deposited fine, together with interest. If the Citation or Order is cancelled but the fine has not been deposited pursuant to an advance deposit hardship waiver, the Hearing Officer shall cancel the obligation to tender the fine.
12.0 Administrative Fines, Penalties, Costs and Interest
12.1 Citation Fines
The fines for each violation shall be as provided by District Rule, Resolution or other provision of law. Each fine shall be paid to the Water Management District within thirty (30) days from the date of service of the Citation.
A penalty and interest may be due for late payment in accord with District Rule 115.3.
12.2 Administrative Penalties
Each Hearing Officer is authorized to impose administrative penalties pursuant to District Rule 115.1.
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 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; and/or
7. Such other factors as justice may require.
Administrative penalties shall accrue from the date specified in the Citation or Order and shall cease to accrue on the date the violation is corrected as determined by the Hearing Officer.
The Hearing Officer may exercise his or her discretion to suspend imposition of applicable penalties for any period of time during which:
8. The violator has filed for necessary permits;
9. Such permits are required to achieve compliance; and
10. Such permit applications are actively pending before the District or other appropriate Governmental agency.
12.3 Administrative Costs
The Hearing Officer shall assess reasonable and necessary administrative costs when he or she finds that a violation has occurred, or that compliance has not been achieved within the time specified in a Citation or Order in accord with District Rule 115.2-A.
The Hearing Officer shall assess reasonable and necessary administrative costs against the Water Management District when it finds that a violation has not occurred.
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 a Citation or Order.
The Hearing Officer may waive the assessment of administrative costs against either party where unique circumstances are present, or in the interests of justice.
12.4 Late Payment
A penalty and interest may be due for late payment in accord with District Rule 115.3.
13.0 Post Hearing Process
13.1 Hearing Officer’s Final Determination
The Hearing Officer’s written determination shall be served upon all parties and a copy of the determination shall be made available for review by all other District Board Members.
The Hearing officer, in accord with Rule 111.7, shall provide a Notice of Decision. This Notice shall advise the recipient that if any person disagrees with the Hearing Officer’s final written determination, that person may obtain review of the Administrative Order or Abatement Order in the Superior Court by filing with the court a petition for writ of mandate within ninety (90) days in accord Rule 16 of the District Rules & Regulations, which incorporates by reference section 1094.6 of the California Code of Civil Procedure.
14.1 Report of Compliance After Administrative Order
If the Water Management District General Manager determines that compliance has been achieved after a Citation or Order has been sustained by the Hearing Officer, the Water Management District General Manager shall file a report with the Board of Directors indicating that compliance has been achieved.
14.2 Compliance Dispute
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, or if none is assigned, to the Chairman of the Board, together with any applicable fee.
A noticed hearing on the Compliance Dispute shall be conducted in the same manner as a hearing on a Compliance Order.
The Hearing Officer shall determine if compliance has been achieved and, if so, when it was achieved.
15. Judicial Review
Any person contesting the final order of a Hearing Officer may obtain review of the administrative decision by filing a petition for review with the Superior Court in Monterey County within ninety (90) days in accord Rule 16 of the District Rules & Regulations, which incorporates by reference the provisions of Section 1094.6 of the California Code of Civil Procedure. Government Code Section 53069.4 shall govern the review of the administrative hearing.
The case shall be heard de novo, except that the contents of the District’s file in the case shall be received in evidence. The Court proceeding shall be a limited civil case. A copy of the District’s document or instrument providing notice of the violation and imposition of the administrative fine or penalty shall be admitted into evidence as prima facie evidence of the facts stated therein. A copy of the notice of appeal shall be served in person or by first-class mail upon the District by the contesting person.
U:\General (NEW)\MPWMD – Main\Code Enforcement\FINAL2008_13_Attach_1 v2.doc
U:\staff\word\boardpacket\2008\2008resolutions\2008_13\2008_13_Attach_1.doc The term “Enforcement Officer” refers to an authorized employee or agent of the Water Management District holding authority to enforce provisions of the District Rules & Regulations.
 The amount of each fine is set forth in the schedule of fines established and periodically amended by Resolution of the District Board, in accord with District Rule 113.1.
 No hearing shall be held unless the fine has been deposited in advance in accordance with District Rule 113.1, or an advance deposit hardship waiver has been issued in accordance with Rule 113.2.
 Please see Paragraph 14 regarding Judicial Review.