§ 50.999 PENALTY.

   (A)   Any person violating any provision of this chapter shall be subject to the penalties set forth in this section. If the violation is continued, each day's violation shall be a separate offense.

   (B)   Any violation of this chapter shall subject the offender to a civil penalty to be recovered by the town in a civil action in the nature of a debt if the offender does not pay any penalty called for hereunder within the prescribed period of time after notice of violation of the chapter. Penalties shall be as prescribed herein but in no case less than $10 per day.

   (C)   This chapter may be enforced by an appropriate equitable remedy such as an injunction or order of abatement issuing from any court of competent jurisdiction.

   (D)   This chapter may be enforced by any, all, or a combination of the remedies as authorized and prescribed above.

   (E)   It shall be unlawful for any person to violate any provision of §§ 50.120 through 50.126, including any mandatory water conservation measure.

   (F)   A violation of §§ 50.130 through 50.162 may subject the violator to a civil penalty to be recovered in a civil action in the nature of a debt if the violator does not pay the penalty within 30 days after notice of the violation is issued by the Stormwater Manager.

      (1)   Civil penalties.

         (a)   Any person who allows, acts in concert, participates, directs, or assists directly or indirectly in the creation of a violation of §§ 50.130 through 50.162 is subject to a civil penalty. A civil penalty may be assessed from the date the violation first occurs.

         (b)   Civil penalties may be assessed up to the full amount of penalty to which the town is subject for violations of its NPDES stormwater permit, or up to $5,000 for each violation of §§ 50.130 through 50.162, whichever is greater. Each day of violation shall constitute a separate violation.

         (c)   No penalty shall be assessed until the person alleged to be in violation has been served notice of the violation as described in § 50.160(C). Refusal to accept the notice shall not relieve the violator of the obligation to pay such penalty.

         (d)   Penalties may be assessed concurrently with a notice of violation for any of the following:

            1.   Obstructing, hampering or interfering with an authorized town representative who is in the process of carrying out official duties under §§ 50.130 through 50.162;

            2.   A repeated violation for which a notice of violation was previously given to the person responsible for the violation; or

            3.   Willful violation of §§ 50.130 through 50.162.

         (e)   In determining the amount of a civil penalty, the Stormwater Manager shall consider any relevant mitigating and aggravating factors including, but not limited to the following:

            1.   Degree and extent of harm caused by the violation;

            2.   Cost of rectifying the damage;

            3.   Amount of money saved through noncompliance;

            4.   Whether the violator took reasonable measures to comply with this chapter;

            5.   Knowledge of the requirements by the violator and/or reasonable opportunity or obligation to obtain such knowledge;

            6.   Whether the violator voluntarily took reasonable measures to restore any areas damaged by the violation;

            7.   Whether the violation was committed willfully;

            8.   Whether the violator reported the violation to an appropriate authority;

            9.   Technical and economic reasonableness of reducing or eliminating the discharge; and

            10.   Prior record of the violator in complying or failing to comply with §§ 50.130 through 50.162 or any other water pollution control ordinance or regulation.

         (f)   The Stormwater Manager shall determine the amount of the civil penalty to be assessed under this section and shall make written demand for payment upon the person in violation and shall set forth in detail a description of the violation for which the penalty was imposed. Notice of said assessment shall be by registered or certified mail or other means reasonably calculated to give adequate notice. If a violator does not pay a civil penalty assessed by the town within 30 days after it is due, the Stormwater Manager shall request the Town Attorney to institute a civil action to recover the amount of the assessment. The civil action shall be brought in New Hanover County Superior Court or in any other court of competent jurisdiction. Such civil action must be filed within three years of the date the notice of assessment was served on the violator.

         (g)   An assessment that is not contested is due when the violator is served with a notice of assessment. An assessment that is contested is due at the conclusion of the administrative and judicial review of the assessment.

         (h)   Civil penalties collected pursuant to this chapter shall be credited to the town’s water and sewer fund as a non-tax revenue.

         (i)   A violation of §§ 50.130 through 50.162 shall not constitute a misdemeanor or infraction punishable under G.S. § 14-4, but instead shall be subject to the civil penalties fixed by this section.

      (2)   Cost recovery. The town may also recover from the violator:

         (a)   Costs to restore damaged property based on restoration costs, which include, but are not limited to, cleanup costs, value of animal and plant life damaged, and town administrative costs;

         (b)   Compensation for damage to or destruction of the stormwater system.

   (G)   In no case shall the maximum penalty per day exceed the amount as specified in § 50.999(F)(1)(b).

(Ord., passed 7-28-83; Am. Ord. 1422, passed 8-8-02; Am. Ord. 1538, passed 5-24-07; Am. Ord. 1590, passed 1-29-09)