.010 Administrative Remedies.
(1) Notice of Noncompliance. The Authorized Inspector may deliver to the owner or occupant of any private property, or to any person responsible for an illicit connection or prohibited discharge a notice of noncompliance. The notice of noncompliance shall be delivered in accordance with Section 10.09.060.010(5) of the ordinance codified in this chapter.
(i) The notice of noncompliance shall identify the provision(s) of the ordinance codified in this chapter, the applicable water quality management plan or permit which have been violated. The notice of noncompliance shall state that continued noncompliance may result in additional enforcement actions against the owner, occupant and/or person.
(ii) The notice of noncompliance shall state a compliance date that must be met by the owner, occupant and/or person; provided, however, that the compliance date may not exceed ninety days unless the Authorized Inspector extends the compliance deadline an additional ninety days where good cause exists for the extension.
(2) Administrative Compliance Orders.
(i) The Authorized Inspector may issue an administrative compliance order. The administrative compliance order shall be delivered in accordance with Section 10.09.060.010(5) of the ordinance codified in this chapter. The administrative compliance order may be issued to:
(a) The owner or occupant of any private property requiring abatement of conditions on the property that cause or may cause a prohibited discharge or an illicit connection in violation of the ordinance codified in this chapter;
(b) The owner of private property or a responsible party subject to the requirements of any water quality management plan to ensure implementation of and adherence to the terms, conditions and requirements of the plan;
(c) A permittee subject to the requirements of any permit issued pursuant to Section 10.09.040 hereof to ensure compliance with the terms, conditions and requirements of the permit;
(d) Any person responsible for an illicit connection or prohibited discharge.
(ii) The administrative compliance order may include, but is not limited to, the following terms and requirements:
(a) Specific steps and time schedules for compliance as reasonably necessary to prevent threatened or future unauthorized discharges, including but not limited to the threat of a prohibited discharge from any pond, pit, well, surface impoundment, holding or storage area;
(b) Specific steps and time schedules for compliance as reasonably necessary to discontinue any illicit connection;
(c) Specific requirements for containment, cleanup, removal, storage, installation of overhead covering, or proper disposal of any pollutant having the potential to contact storm water runoff;
(d) Any other terms or requirements reasonably calculated to prevent continued or threatened violations of the ordinance codified in this chapter, including, but not limited to requirements for compliance with best management practices guidance documents promulgated by any Federal, State of California, County of Orange, or regional agency;
(e) Any other terms or requirements reasonably calculated to achieve full compliance with the terms, conditions and requirements of any water quality management plan, or permit issued pursuant hereto.
(3) Cease and Desist Orders.
(i) The Authorized Inspector may issue a cease and desist order. A cease and desist order shall be delivered in accordance with Section 10.09.060.010(5) of the ordinance codified in this chapter. A cease and desist order may direct the owner or occupant of any private property and/or other person responsible for a violation of the ordinance codified in this chapter to:
(a) Immediately discontinue any illicit connection or prohibited discharge to the Storm Water Drainage System;
(b) Immediately contain or divert any flow of water off the property, where the flow is occurring in violation of any provision of the ordinance codified in this chapter;
(c) Immediately discontinue any other violation of the ordinance codified in this chapter;
(d) Clean up the area affected by the violation.
(ii) The Authorized Inspector may direct by cease and desist order that the owner of any private property, the responsible party subject to the terms and conditions of any water quality management plan, or any permittee under any permit issued pursuant to Section 10.09.040 hereof:
(a) Immediately cease any activity not in compliance with the terms, conditions and requirements of the applicable water quality management plan or permit.
(4) Recovery of Costs. The Authorized Inspector may deliver to the owner or occupant of any private property, any permittee or any responsible party, or any other person who becomes subject to a notice of noncompliance or administrative order, an invoice for costs, including attorneys' fees. An invoice for costs shall be delivered in accordance with Section 10.09.060.010(5) of the ordinance codified in this chapter. An invoice for costs shall be immediately due and payable to the City for the actual costs, including attorneys' fees, incurred by the City in issuing and enforcing any notice or order.
(i) If any owner or occupant, permittee or responsible party, or any other person fails to either pay the invoice for costs or appeal successfully the invoice for costs in accordance with Section 10.09.060.010(6), then the Enforcing Attorney or City Attorney may institute collection proceedings.
(ii) The Director may elect to institute collection proceedings in small claims court, in which case, the matter will be handled by the Director of Public Works/City Engineer or his or her designee.
(5) Delivery of Notice. Any notice of noncompliance, administrative compliance order, cease and desist order or invoice of costs to be delivered pursuant to the requirements of the ordinance codified in this chapter shall be subject to the following:
(ii) Delivery shall be deemed complete upon (a) personal service to the recipient; (b) deposit in the U.S. mail, postage pre-paid for first class delivery; or (c) facsimile service with confirmation of receipt.
(iii) Where the recipient of notice is the owner of the property, the address for notice shall be the address from the most recently issued equalized assessment roll for the property or as otherwise appears in the current records of the City.
(iv) Where the owner or occupant of any private property cannot be located after reasonable efforts of the Authorized Inspector, or his or her designee, a notice of noncompliance or cease and desist order shall be deemed delivered after posting on the property for a period of ten business days.
(6) Administrative Hearing for Notices of Noncompliance, Administrative Compliance Orders, Invoices for Costs and Adverse Determinations. Any person receiving a notice of noncompliance, administrative compliance order, a notice of legal nonconforming connection, an invoice for costs, or any person who is subject to any adverse determination made pursuant to the ordinance codified in this chapter, may appeal the matter by requesting an administrative hearing. Administrative hearings for cease and desist orders and emergency abatement actions are governed by Section 10.09.060.010(8) hereinbelow.
(7) Request for Administrative Hearing. Any person appealing a notice of noncompliance, an administrative compliance order, a notice of legal nonconforming connection, an invoice for costs or an adverse determination shall, within thirty days after delivery of the said notice, order, invoice or adverse determination, file a written request for an administrative hearing, accompanied by an administrative hearing fee as established by separate resolution, with the office of the City Clerk, with a copy of the request for administrative hearing mailed on the date of filing to the Director and the City Attorney.
Thereafter, a hearing on the matter shall be held before the Hearing Officer within forty-five business days of the date of filing of the written request unless, in the reasonable discretion of the Hearing Officer and pursuant to a written request by the appealing party, a continuance of the hearing is granted.
(8) Administrative Hearing for Cease and Desist Orders and Emergency Abatement Actions. An administrative hearing shall be held within five business days following the issuance of a cease and desist order or following an emergency action or abatement, unless the conduct of the hearing or the time requirement for the hearing is waived in writing by the party subject to the cease and desist order or the emergency abatement. A request for an administrative hearing shall not be required from the person subject to the cease and desist order or the emergency abatement action.
(9) Hearing Proceedings. The Authorized Inspector shall appear in support of the notice, order, determination, invoice or costs or emergency abatement action, and the appealing party shall appear in support of withdrawal of the notice, order, determination, invoice for costs, or in opposition to the emergency abatement action. The City shall have the burden of supporting any enforcement or other action by a preponderance of the evidence. Each party shall have the right to present testimony and other documentary evidence as necessary for explanation of the case.
(10) Final Decision and Appeal. With the exception of a cease and desist order or where an emergency abatement action has taken place, the final decision of the Hearing Officer shall issue within ten business days of the conclusion of the hearing and shall be delivered by first-class mail, postage prepaid, to the appealing party. The final decision shall include notice that any legal challenge to the final decision shall be made pursuant to the provisions of Code of Civil Procedure Sections 1094.5 and 1094.6 and shall be commenced within ninety days following.
(i) Where the validity of a cease and desist order is involved or where an emergency abatement action has taken place, the final decision of the Hearing Officer shall be mailed within five business days following the conclusion of the hearing.
(11) City Abatement. In the event the owner of private property, the operator of a facility, a permittee, a responsible party, or any other person fails to comply with any provision of a compliance schedule issued pursuant to the ordinance codified in this chapter, the Authorized Inspector may request the Enforcing Attorney to obtain an abatement warrant or other appropriate judicial authorization to enter the property, abate the condition and restore the area. Any costs incurred by the City in obtaining and carrying out an abatement warrant or other judicial authorization may be recovered pursuant to Section 10.09.060.020(4).
.020 Nuisance Abatement. Any condition in violation of the prohibitions of the ordinance codified in this chapter, including but not limited to the maintenance or use of any illicit connection or the occurrence of any prohibited discharge, shall constitute a threat to the public health, safety and welfare, and is declared and deemed a nuisance pursuant to Government Code Section 38771.
(1) Court Order to Enjoin or Abatement. At the request of the Director, the enforcing attorney may seek a court order to enjoin and/or abate the nuisance.
(2) Notice to Owner and Occupant. Prior to seeking a court order to enjoin or abate a nuisance or threatened nuisance, the Director shall provide notice of the proposed injunction or abatement to the owner and occupant, if any, of the property where the nuisance or threatened nuisance is occurring.
(3) Emergency Abatement. In the event the nuisance constitutes an imminent danger to public safety or the environment, the Director may enter the property from which the nuisance emanates, abate the nuisance and restore any property affected by the nuisance, without prior notice to or consent from the owner or occupant thereof and without judicial warrant.
(i) An imminent danger shall include, but is not limited to, exigent circumstances created by the dispersal of pollutants, where the same presents a significant and immediate threat to the public safety or the environment.
(ii) Notwithstanding the authority of the City to conduct an emergency abatement action, an administrative hearing pursuant to Section 10.09.060.010(8) hereinabove shall follow the abatement action.
(4) Reimbursement of Costs. All costs incurred by the City in responding to any nuisance, all administrative expenses, including attorneys' fees and all other expenses recoverable under State law, shall be recoverable from the person(s) creating, causing, committing or maintaining the nuisance.
(5) Nuisance Lien. All costs shall become a lien against the property from which the nuisance emanated and a personal obligation against the owner thereof in accordance with Government Code Sections 38773.1 and 38773.5. The owner of record of the property subject to any lien shall be given notice of the lien prior to recording as required by Government Code Section 38773.1.
(i) At the request of the Director of Public Works/City Engineer, the Enforcing Attorney is authorized to collect nuisance abatement costs or enforce a nuisance lien in an action brought for a money judgement or by delivery to the County Assessor of a special assessment against the property in accord with the conditions and requirements of Government Code Section 38773.5.
.030 Criminal Sanctions.
(1) Prosecutor. The City Attorney may act on the request of the Director to pursue enforcement actions in accordance with the provisions of the ordinance codified in this chapter.
(2) Infraction. Any person who may otherwise be charged with or cited for a misdemeanor under the ordinance codified in this chapter may, at the discretion of the prosecuting attorney, be charged with an infraction punishable by a fine of not more than one hundred dollars for a first violation, two hundred dollars for a second violation, and a fine not exceeding five hundred dollars for each additional violation occurring within one year.
(3) Misdemeanors. Any person who negligently or knowingly violates any provision of the ordinance codified in this chapter, undertakes to conceal any violation of the ordinance codified in this chapter, continues any violation of the ordinance codified in this chapter after notice thereof, or violates the terms, conditions and requirements of any water quality management plan or permit, shall be guilty of a misdemeanor punishable by a fine of not more than one thousand dollars or by imprisonment for a period of not more than six months, or both.
.040 Citations. Pursuant to Penal Code Section 836.5, the Code Enforcement Officer and/or a police officer shall have the authority to cause the arrest of any person committing a violation of the ordinance codified in this chapter. The person may be released and issued a citation to appear before a magistrate in accordance with Penal Code Sections 853.5, 853.6 and 853.9, unless the person demands to be taken before a magistrate. Following issuance of any citation, the Authorized Inspector shall refer the matter to the City Attorney.
.050 Consecutive Violations. Each day in which a violation occurs and each separate failure to comply with either a separate provision of the ordinance codified in this chapter, an Administrative Compliance Order, a cease and desist order, an applicable water quality management plan, or a permit issued pursuant to the ordinance codified in this chapter, shall constitute a separate violation of the ordinance codified in this chapter punishable in accordance herewith.
.060 Non-exclusive Remedies. Each and every remedy available for the enforcement of the ordinance codified in this chapter shall be non-exclusive and it is within the discretion of the Authorized Inspector or City Attorney to seek cumulative remedies.
.070 Violations of Other Laws. Any person acting in violation of the ordinance codified in this chapter also may be acting in violation of the Federal Clean Water Act or the State Porter-Cologne Act and other laws and also may be subject to sanctions including civil liability. Accordingly, the City Attorney is authorized to file a citizen suit pursuant to Federal Clean Water Act Section 505(a), seeking penalties, damages, and orders compelling compliance, and other appropriate relief. The City Attorney may notify EPA Region IX, the Santa Ana or San Diego Regional Water Quality Control Boards, or any other appropriate state or local agency, of any alleged violation of the ordinance codified in this chapter.
.080 Injunctions. At the request of the Director, the City Attorney may cause the filing in a court of competent jurisdiction of a civil action seeking an injunction against any threatened or continuing noncompliance with the provisions of the ordinance codified in this chapter.
(1) Order for Reimbursement. Any temporary, preliminary or permanent injunction issued pursuant hereto may include an order for reimbursement to the city of all costs incurred in enforcing the ordinance codified in this chapter, including costs of inspection, investigation and monitoring, the costs of abatement undertaken at the expense of the City, attorneys fees, costs relating to restoration of the environment and all other expenses as authorized by law.
.090 Other Civil Remedies.
(1) The Director of Public Works/City Engineer may request the City Attorney to file an action for civil damages in a court of competent jurisdiction seeking recovery of (i) all costs incurred in enforcement of the ordinance codified in this chapter, including but not limited to costs relating to investigation, sampling, monitoring, inspection, administrative expenses, attorneys fees, all other expenses as authorized by law, and consequential damages, (ii) all costs incurred in mitigating harm to the environment or reducing the threat to human health, and (iii) damages for irreparable harm to the environment.
(2) The City Attorney is authorized to file actions for civil damages resulting from any trespass or nuisance occurring on public land or to the Storm Water Drainage System from any violation of the ordinance codified in this chapter where the same has caused damage, contamination or harm to the environment, public property or the Storm Water Drainage System.
(3) The remedies available to the City pursuant to the provisions of the ordinance codified in this chapter shall not limit the right of the City to seek any other remedy that may be available by law. (Ord. 5463 § 1 (part); December 13, 1994.)