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(a) Notice of Violation. Except as specified in Subsections (1) through (3) below, the Director shall notify the responsible party for a violation that he or she has seventy-two (72) hours to correct or otherwise remedy the violation or be subject to the imposition of administrative penalties. The Director's notice of violation shall be a written, electronic, or facsimile communication and shall specify the manner in which the violation shall be remedied.
(1) For those violations subject to the incomplete excavation provisions of Section 2.4.55(d), the responsible party shall have twenty-four (24) hours to remedy the violation or be subject to the imposition of administrative penalties.
(2) For violations that create an imminent danger to public health, safety, or welfare or are otherwise subject to Section 2.4.73, the Director shall notify the responsible party to immediately remedy the violation or be subject to the imposition of administrative penalties.
(3) For violations that cannot be cured within seventy-two (72) hours, including, but not limited to, excavating without a permit, the Director shall notify the responsible party of the Director's imposition of administrative penalties pursuant to Subsection (e).
(b) Amount of Administrative Penalties. Administrative penalties assessed pursuant to Subsection (a) shall not exceed one thousand dollars ($1,000) per day, per violation commencing with the first day of the violation. Notwithstanding the penalty limitation set forth above, a person who excavates without a valid permit may be assessed a penalty not to exceed ten thousand dollars ($10,000.00) per day, per violation commencing with the first day of the violation. In assessing the amount of the administrative penalty, the Director may consider any one or more of the following: the nature and seriousness of the misconduct, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the wilfulness of the violator's misconduct, and the violator's assets, liabilities, and net worth.
(c) Enforcement Costs. In addition to the administrative penalty assessed pursuant to Subsection (a), the Director may assess enforcement costs to cover the reasonable costs incurred in enforcing the administrative penalty, including reasonable attorneys' fees. Any enforcement costs imposed and recovered shall be distributed according to the purpose for which the Director imposed them.
(d) Accrual of Penalties and Costs. Penalties and costs assessed under this Section shall continue to accrue against a responsible party until the violation of this Article is corrected or otherwise remedied in the judgment of the Director or the responsible party pays the assessed penalties and costs. If such penalties and costs are the subject of a request for administrative review or an appeal, then the accrual of such penalties and costs shall be stayed until the determination concerning the administrative penalties is final.
(e) Notice Imposing Administrative Penalties. If the responsible party fails to remedy the violation within the time specified in the notice of violation or if the violation is incurable pursuant to Section 2.4.81(a)(3), the Director shall notify in writing the responsible party of the Director's imposition of administrative penalties. This notice shall include the amount of the penalties and costs and declare that such penalties and costs are due and payable to the City Treasurer within thirty (30) calendar days. The notice also shall state that the person designated as the responsible party has the right, pursuant to Subsection (g), to request administrative review of the Director's determination as to the designation of the responsible party and the assessment of penalties.
(f) Finality of the Director's Determination and Collection of Assessed Penalties. If no request for administrative review is filed pursuant to Subsection (g), the Director's determination is final. Thereafter, if the penalties and costs are not paid within the time specified in Subsection (e), the Director is empowered to pursue any method of collection of such penalties and costs authorized by local law including, but not limited to deductions of the permittee's deposit pursuant to Section 2.4.46(c).
(g) Administrative Review. Any Person that is designated as the responsible party for a violation or is subject to an administrative penalty may seek administrative review of the designation or the assessment of the penalty or cost within ten (10) calendar days of the date of the notice imposing administrative penalties. Administrative review shall be initiated by filing with the Director a request for review that specifies in detail the basis for contesting the designation of the responsible party or the assessment of the penalty or cost.
(h) Notice for and Scheduling of Administrative Hearing. Whenever an administrative review hearing is requested pursuant to Subsection (g), the Director, within ten (10) calendar days of the date of receipt of the request, shall notify the affected parties of the date, time, and place of the hearing by certified mail. Such hearing shall be held no later than thirty (30) calendar days after the Director received the request for administrative review, unless extended by mutual agreement of the affected parties. The Director shall appoint a hearing officer for such hearing.
(i) Submittals for the Administrative Review Hearing. The parties to the hearing shall submit written information to the hearing officer including, but not limited to, the following: the statement of issues to be determined by the hearing officer and a statement of the evidence to be offered at the hearing.
(j) Conduct of the Administrative Review Hearing. The administrative review hearing is a public hearing and shall be tape recorded. Any party to the hearing may at his or her own expense, cause the hearing to be recorded by a certified court reporter. During the hearing, evidence and testimony may be presented to the hearing officer. Written decisions and findings shall be rendered by the hearing officer within ten (10) calendar days of the hearing. Copies of the findings and decision shall be served upon the parties to the hearing by certified mail. A notice that a copy of the findings and decisions is available for inspection between the hours of 9:00 a.m. and 5:00 p.m., Monday through Friday shall be posted at the offices of the Department of Public Works.
(k) Director's Decision on the Hearing Officer's Recommendation. The decision of the hearing officer shall be a recommendation to the Director, and the Director, within five (5) calendar days of receipt of such recommendation, shall adopt, modify, or deny such recommendation. The Director's decision on the hearing officer's recommendation is final. Such decision shall be served upon the parties to the hearing and posted in the same manner as the hearing officer's decision as set forth in Subsection (j). If any imposed administrative penalties and costs have not been deposited at this time, the Director may proceed to collect the penalties and costs pursuant to Subsection (f).
(l) Additional procedures. The Director, by Departmental order, may adopt additional procedures to implement this Section.
(Added by Ord. 341-98, App. 11/13/98; amended by Ord. 239-99, File No. 991177, App. 9/3/99; Ord. 33-02, File No. 020051, App. 3/28/2002)