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(a) If the Director determines that an Overdose Prevention Program is operating in violation of this Article 46 (which term is deemed in the entirety of this Section 4611 to include a violation of a permit condition and/or a violation of the rules and regulations adopted pursuant to this Article), or state law regulating the operation of Overdose Prevention Programs, the Director may issue a Notice of Violation to the Permittee, the owner of the real property where the violation occurred (“Owner”), and/or any other Persons the Director deems responsible for causing the violation (“Other Persons,” which term is deemed in the entirety of this Section 4611 to include Persons responsible for operating an Overdose Prevention Program in violation of Section 4604).
(b) The Notice of Violation shall include the following information:
(1) That the Director has made a determination that the Overdose Prevention Program is operating in violation of this Article 46;
(2) The alleged acts or failures to act that constitute the basis for the Director’s determination;
(3) That the Director intends to take enforcement action against the Permittee, Owner, or Other Person, and the nature of that action, including the administrative penalty and enforcement costs to be imposed, additional permit conditions that may be imposed, and/or the suspension or revocation of the Overdose Prevention Program permit;
(4) That the Permittee, Owner, or Other Persons has the right to request a hearing before the Director within 30 days after the Notice of Violation is mailed via U.S. mail or electronic mail, and that the written request for hearing must state facts demonstrating that:
(A) If the violation is disputed, the Overdose Prevention Program was operating in compliance with this Article 46 and/or the rules and regulations adopted pursuant to this Article; and
(B) Whether or not the alleged violation is disputed, the Overdose Prevention Program is currently operating in compliance with this Article 46, the rules and regulations adopted pursuant to this Article, and conditions of the permit, and that the Permittee, Owner, or Other Person has taken reasonable steps to prevent violations similar to the alleged violation, and has arranged for the Director to re-inspect the Overdose Prevention Program to confirm such reasonable steps. Where no such showing has been made, the Permittee, Owner, or Other Person served with a notice or order by the Director setting forth the nature of the violation of this Article shall be presumed, in subsequent administrative or civil proceedings, to have committed and not to have corrected such violation.
(c) If no request for a hearing is filed with the Director within the required period, or the request for hearing does not include the information required by subsection (b)(4) of this Section 4611, the right to request a hearing shall be deemed waived, and the Director’s determination shall become final and effective 30 days after the Notice of Violation was mailed via U.S. mail or electronic mail. The Director shall issue an order imposing the enforcement action and mail the order to the Permittee, Owner, or Other Person served with the Notice of Violation. In subsequent civil proceedings, such violations shall be presumed not to have been corrected. Where no hearing is timely requested, an order suspending, revoking, or imposing additional conditions on a permit is final. The failure of the Permittee, Owner, or Other Person on whom the Notice of Violation was served to request a hearing shall constitute a failure to exhaust administrative remedies and shall preclude the Person from obtaining judicial review of the validity of the enforcement action.
(d) Upon a timely request for a hearing that includes the information required by subsection (b)(4) of this Section 4611, the Director shall, within 15 days of the request, notify the requester of the date, time, and place of the hearing. The Director shall make available to the requester the evidence obtained in support of the Notice of Violation as well as a copy of the report, if any, prepared by the Director’s designee to support the Notice of Violation. Such hearing shall be held no later than 60 days after the Director receives the request, unless time is extended by mutual agreement of the requester and the Director.
(e) The Director shall conduct the hearing, or may designate a hearing officer to conduct the hearing, in which case the hearing officer shall have the same authority as the Director to hear and decide the case and make any orders consistent with this Article 46. The Permittee, Owner, or Other Person, as well as the Department, may present evidence for consideration, subject to any rules adopted by the Director or hearing officer for the orderly conduct of the hearing. Within 30 days of the conclusion of the hearing, the Director or hearing officer shall render a decision in the form of a written order, which the Director shall promptly serve on the Permittee, Owner, or Other Person charged in the Notice of Violation. The order shall state whether the Notice of Violation has been upheld (in whole or in part), and, if so, the enforcement action taken against each party.
(f) If the order directs the Permittee, Owner, or Other Person to pay an administrative penalty and/or enforcement costs, such amount shall be paid within ten days from the mailing of the order, which shall inform the recipient of said deadline for payment.
(g) If the order suspends or revokes a permit, or imposes additional permit conditions, it may be appealed to the Board of Appeals in the manner prescribed in Article 1 of the Business and Tax Regulations Code; the order shall inform the recipient of such right to appeal.
(Added by Ord. 105-20, File No. 200243, App. 7/10/2020, Eff. 8/10/2020)