(a) Administrative Fine. Violation of any provision of this chapter shall constitute grounds for issuance of a notice of violation and assessment of an administrative fine by the department. Absent compliance by the respondent within the deadline set forth in the notice of violation, the department shall commence an action to impose penalties, via an administrative citation and fine.
(b) Notice of Violation. Before assessing an administrative fine, the department shall issue a notice of violation requiring compliance within 60 days of issuance of the notice. The notice shall include: (1) the name(s) of each person or entity to whom it is directed, (2) a factual description of the violations, including the regulatory section(s) being violated, (3) a compliance date by which the respondent is to take specified action(s), and (4) the penalty for not complying before the specified deadline.
(c) Extensions to Compliance Deadlines. The department may extend the compliance deadlines set forth in a notice of violation if it finds that there are extenuating circumstances beyond the control of the respondent that make compliance within the deadlines impracticable, including the following:
(1) Acts of God such as earthquakes, wildfires, flooding, and other emergencies or natural disasters;
(2) Delays in obtaining discretionary permits or other government agency approvals;
(3) Deficiencies in edible food recovery capacity and the existence of a corrective action plan imposed by CalRecycle pursuant to 14 CCR Section 18996.2 due to those deficiencies; or,
(4) Any other circumstance in which the department director, in their sole discretion, finds good cause to extend the compliance deadlines.
(d) Administrative Citations. If the respondent fails to correct the violation by the compliance date, the department shall issue an administrative citation and fine. The citation shall include a description of the administrative citation appeal process, including the designated hearing officer, the time within which the administrative citation may be contested, and instructions for requesting a hearing.
(e) Amount of Fine. The amount of the administrative fine for each violation of this chapter shall be as follows:
(1) For a first violation, the amount of the base penalty shall be fifty dollars ($50.00) to one hundred dollars ($100.00) per violation.
(2) For a second violation, the amount of the base penalty shall be one hundred dollars ($100.00) to two hundred dollars ($200.00) per violation.
(3) For a third or subsequent violation, the amount of the base penalty shall be two hundred fifty dollars ($250.00) to five hundred dollars ($500.00) per violation.
(f) Factors Considered in Determining Penalty Amount. The following factors shall be used to determine the amount of the penalty for each violation within the appropriate penalty range:
(1) The nature, circumstances, and severity of the violation(s).
(2) The violator's ability to pay.
(3) The willfulness of the violator's misconduct.
(4) Whether the violator took measures to avoid or mitigate violations of this chapter.
(5) Evidence of any economic benefit resulting from the violation(s).
(6) The deterrent effect of the penalty on the violator.
(7) Whether the violation(s) were due to conditions outside the control of the violator.
(g) Appeals. Persons receiving an administrative citation for an uncorrected violation may request a hearing to appeal the citation. The city will designate a hearing officer who shall conduct the hearing and issue a final written order. The hearing officer may be a city official or another public agency designated by the city. The hearing officer shall be identified in the administrative citation. A hearing will be held only if it is requested within 15 days from the date of the notice of the administrative citation.
(h) Other Remedies. Other remedies allowed by law may be used to enforce this chapter, including civil action or criminal prosecution as misdemeanor or infraction. The department and/or city may pursue civil actions in the California courts to seek recovery of unpaid administrative citations. The department and/or city may choose to delay court action until such time as court action is a reasonable use of staff and resources.
(i) Education Period for Non-compliance. Beginning January 1, 2022, and through December 31, 2023, the department and/or designee will conduct inspections and compliance reviews. If the department and/or designee determines that a Tier One commercial edible food generator, food recovery organization, food recovery service, or other entity is not in compliance, it shall provide educational materials to the entity describing its obligations under this chapter and a notice that compliance is required. It shall also provide notice that violations may be subject to administrative civil penalties starting on January 1, 2024.
(Ord 5536 § 3 (part), 2021)