A. Legal Action:
1. Any use of or connection to the utility supply system in violation of any provision of this chapter, or any act or condition which damages, injures or threatens to damage or injure the utility system shall be considered a public nuisance and the City Attorney may commence an action for appropriate legal and/or equitable relief in the District Court in and for the County of El Paso or in any other appropriate court. In any such action the City may recover reasonable attorney fees, costs, court reporter fees and other expenses of litigation.
2. Any discharge in violation of the provisions of this chapter or an order of the Chief Executive Officer issued pursuant to this article or any discharge of wastewater, industrial wastes or other wastes into the wastewater treatment system contrary to the provisions of this chapter or any order of the Chief Executive Officer shall be considered a public nuisance and the City Attorney may commence an action for appropriate legal and/or equitable relief in conformance with the provisions of this subsection A.
B. Penalty: Any person who performs or fails to perform an act where the performance or failure to perform is declared in any provision of this chapter to be unlawful, shall be fined and/or imprisoned as provided in section 1.1.201 of this Code. A separate and distinct offense shall be deemed to have been committed for each day on which violation shall occur or continue.
C. Abatement Of Imminent Hazards:
1. Notwithstanding any other provisions of this chapter to the contrary, if the Chief Executive Officer certifies in writing that an imminent hazard exists, and which requires immediate action in order to protect the public health, safety and welfare, he/she may issue an order to the owner, agency of the owner or occupant of property upon which the imminent hazard exists, stating that the imminent hazard exists and requiring that the actions as deemed necessary be taken in order to abate the imminent hazard. The order issued by the Chief Executive Officer shall, if appropriate, set forth the maximum time within which the owner, agent of the owner or occupant must abate the imminent hazard.
2. Whenever the Chief Executive Officer shall issue the imminent hazard order, the order shall: a) be in writing; b) be personally served whenever feasible on the owner, or agent of the owner and occupant of the premises or, when the personal service is not feasible, either post it conspicuously at the premises or mail to the person by certified mail, return receipt requested, to his last known address; c) describe with reasonable particularity the condition existing on the premises which gives rise to the issuance of the imminent hazard order; d) specify, if applicable, the maximum time period within which the imminent hazard must be abated or otherwise corrected; e) state that an appeal is available provided the provisions of this section are followed; f) have a copy of this section attached; and g) state that, in the event the property owner, agent of the owner or occupant fails to comply with the imminent hazard order, the City or Utilities may take the steps as are necessary to correct the imminent hazard, bill the property owner therefor, and if unpaid, to initiate assessment proceedings against the property pursuant to the City's Zoning Code.
3. In the event the person to whom the imminent hazard order is issued fails or refuses to comply therewith, the Chief Executive Officer is hereby empowered to cause the imminent hazard to be summarily abated in such manner or methods as are necessary and appropriate under the circumstances of each given case.
4. In the event that the owner or agent of the owner shall fail within thirty (30) days after billing to pay the costs and expenses for the abatement of the imminent hazard, a lien may be assessed against the property upon which the imminent hazard exists for the costs of abatement in accord with chapter 2, article 6 of this Code. The lien created hereby shall be superior and prior to all other liens excepting liens for general and special taxes.
5. With respect to enforcing the imminent hazard order, the Chief Executive Officer or the Chief Executive Officer's designees, and their agents, may enter upon any premises or property for the purpose of inspecting, abating, repairing or removing or otherwise preventing the condition which is an imminent hazard to the public health, safety and welfare. In the event that the owner, agent of the owner or occupant of the premises subject to the imminent hazard refuses entry to the Chief Executive Officer or the Chief Executive Officer's designees or agents when entry is sought pursuant to this section, the Chief Executive Officer or the Chief Executive Officer's designees or agents may make application to any Judge of the Municipal Court of the City for the issuance of an inspection warrant. The application shall identify the premises upon which entry is sought and the purpose for which entry is desired, and shall state facts giving rise to the belief that a condition exists at the premises which is an imminent hazard to the public health, safety and welfare. Any warrant issued pursuant to the application shall command the owner, agent of the owner or occupant to permit inspection and entry by the Chief Executive Officer or the Chief Executive Officer's designees or agents for the purpose stated therein.
6. Any person aggrieved by the imminent hazard order of the Chief Executive Officer may appeal the order to the Hearing Officer, who shall be appointed by the Chief Executive Officer, provided written application therefor upon the Chief Executive Officer is made within five (5) days of service of the imminent hazard order. In no event, however, shall the appeal of the imminent hazard order in any way stay or suspend the same. If a timely appeal is made, a hearing concerning the propriety of the order shall be granted to the owner or agent of the owner of the premises, and, after notice thereof to the appellant, the hearing shall be held no more than ten (10) days after the filing of the notice of appeal. At the hearing, the appellant and the City or Utilities may be represented by an attorney, may present evidence, and may cross examine witnesses. A verbatim transcript of the hearing shall be made. The decision of the Hearing Officer shall be based upon competent evidence.
7. The remedies provided in this section shall be cumulative and in addition to any other remedies which may be available to the Chief Executive Officer. Nothing contained herein shall be construed to preclude the Chief Executive Officer from seeking other remedies in addition to, or in lieu of, the remedies granted herein.
8. The phrase "imminent hazard" shall include, but not be limited to, a violation of any of the provisions of this chapter, or the existence of a public nuisance or any other condition or occurrence which is a menace to the public health, safety and welfare, and which interferes with, or arises out of, the provision of utility services pursuant to this chapter. (Ord. 98-173; Ord. 01-42; Ord. 18-42)