Any person found to be in violation of any provision of this chapter in connection with activities subject to a building permit issued pursuant to Title 16 of the Sacramento County Code, shall be subject to the enforcement provisions of both this chapter and Title 16.
(SCC 1280 § 2, 2004; SCC
1295 § 11, 2005)
The Administrator may issue a notice of violation to any person
found to be in violation of a provision of this chapter, including
any regulation, permit, information request, order, variance, or other
requirement that the Administrator is authorized to enforce or implement
pursuant to this chapter.
(SCC 1280 § 2, 2004)
a.
Any
violation of this chapter in which the Administrator also determines
that the violation constitutes an immediate threat to public health
or safety, including by way of illustration and not limitation, significant
harm to human or aquatic life or to the County storm drain system
or natural surface waters, may result in an order to immediately cease
and desist all activities causing such immediate threat.
b.
A cease
and desist order shall direct the owner or occupant of any premises
subject to this chapter, or any person named therein which is subject
to this chapter, to immediately discontinue all or specified prohibited
conditions or discharges to the County storm drain system, natural
surface waters, or otherwise, until such time as abatement actions
sufficient in the determination of the Administrator have been satisfactorily
effected and so confirmed by written amendment to said cease and desist
order.
c.
Any
cease and desist order may be appealed pursuant to the administrative
appeals process of this chapter; provided, however, the effect of
the cease and desist order shall remain in effect pending final determination
thereof. Nothing shall limit the Administrator's authority to continue
enforcement actions under a pending cease and desist order, including
modifying a cease and desist order consistent with the purpose and
intent of this chapter.
d.
Any
cease and desist order shall be cumulative with all of the remedies
in this chapter and as provided by law.
e.
A cease and desist order shall inform the discharger of the Administrator's authority and intent to conduct abatement of the violation or threatened violation according to Section 15.12.550, if the discharger fails to comply with the requirements of the order within the specified time frame.
(SCC 1280 § 2, 2004; SCC
1295 § 12, 2005)
a.
In
addition to any other content, a notice of violation, or a cease and
desist order shall contain the following elements:
1.
A
statement of the Administrator's findings that indicates a violation
has occurred.
2.
A
citation of the provision of this chapter that has been violated.
3.
A
date by which any person must be in compliance with this chapter,
or a date by which an action plan must be submitted by the person
to propose a means and time frame by which to correct violations.
The Administrator may extend the compliance date when good cause exists
for such an extension.
4.
Notification
that continued non-compliance may result in additional enforcement
action being taken against the business, facility, or any responsible
persons.
5.
Notification
that the County may recover any costs incurred by the County as a
result of the violation.
6.
Notification
that a violation of this chapter may result in an administrative civil
penalty of up to $5,000 per violation for each day that the violation
occurs, or in criminal penalties.
7.
Notification that the recipient has a right to a hearing on the matter as set forth in Section 15.12.540 of this chapter, to determine the enforcement of any administrative civil penalty sought by the Administrator, or to appeal any findings or required corrective actions established by the Administrator.
b.
In
addition to any other content, a notice of violation, or a cease and
desist order, or a notice of administrative civil penalty may establish
required corrective actions, including the following:
1.
Terms,
conditions, and requirements reasonably related to the provisions
of this chapter, including the following:
A.
Cessation of illicit discharges.
B.
Correction of prohibited conditions.
C.
A requirement for submittal of a written action plan for achieving
and maintaining compliance with this chapter. The Administrator may
require the action plan to address specific items, including the following:
i.
Specific time schedules for compliance;
ii.
Description of BMPs that will be implemented for containment, cleanup,
removal, storage, or proper disposal of any material having the potential
to contribute pollutants to stormwater runoff;
iii.
Identification of persons responsible for compliance with this
chapter.
D.
Reporting requirements to demonstrate ongoing compliance.
2.
A
requirement that the person receiving same shall submit written certification
to the Administrator that the necessary corrective actions have been
completed. As appropriate for the type of correction action taken,
the notice of violation may require documentation that substantiates
the certification, including but not limited to receipts, contracts,
or photographs.
3.
Any
other terms or conditions reasonably calculated to prevent additional
or on-going violations of this chapter.
c.
A notice
of violation, a cease and desist order, or a notice of administrative
civil penalty may be issued separately or in combination with another
notice or order for the same violations or set of related violations.
(SCC 1280 § 2, 2004; SCC
1295 § 13, 2005)
Any notice of violation, cease and desist order, permit revocation,
notice of administrative civil penalty or other enforcement action
pursuant to the requirements of this chapter shall be subject to the
following requirements:
a.
Delivery
shall be deemed complete upon either personal delivery to the recipient
or by deposit in the U.S. Mail postage pre-paid for first class delivery.
b.
Where
the recipient of the notice or order is the owner of the premises,
the address for notice or order shall be the address from the most
recently issued equalized assessment roll for the premises.
c.
Where
the owner or occupant of any premises cannot be located after reasonable
efforts of the Administrator, the notice or order shall be deemed
delivered after posting on the premises for a period of 10 business
days.
(SCC 1280 § 2, 2004; SCC
1295 § 14, 2005)
a.
Administrative
hearings and appeals under this chapter shall be to a Hearing Officer
appointed pursuant to Government Code section 27720 et seq. Each Hearing
Officer shall also meet the requirements of Government Code section
11425.30 and any other applicable restriction.
b.
Any
person served with a notice or order pursuant to this chapter shall
be provided an opportunity for a hearing prior to enforcement of an
administrative civil penalty; or to appeal required corrective actions
or the Administrator's findings of a violation of this chapter.
1.
Appeal
Hearing. If a notice of violation or a cease and desist order is issued,
but not concurrently with a notice of administrative civil penalty,
the person who receives it shall be afforded an opportunity for a
hearing to appeal the Administrator's findings or required corrective
actions in the manner described in the following subsections:
A.
To appeal the Administrator's findings, required corrective actions,
or any provision of a notice or order, the person shall file a written
request for hearing. The filing period for a request for hearing shall
be set in written policy by the Department issuing the notice or order
adopted pursuant to 15.12.330, but shall in no case be less than 15
calendar days. Any notice or order shall notify the recipient of the
specific date by which the notice must be filed. The request for hearing
shall be filed with the party issuing the notice or order at the address
so designated on the notice and must be accompanied by payment of
the Hearing Officer fee, established and amended from time to time
by the Administrator based upon actual expense. If the person filing
a request for hearing prevails on appeal, then the Hearing Officer
fee will be refunded by the Administrator. A request for hearing shall
be deemed filed within the filing period if it is postmarked within
that period. If a request for hearing is not filed within the proscribed
filing period, the notice, order or other action or determination
by the Administrator shall become final.
B.
Except as provided in subsection (b)(1)(C) of this section, within 90 calendar days of receipt of the request for hearing by the Administrator, the hearing shall be scheduled by the Administrator with a Hearing Officer designated by the Administrator, who shall conduct the hearing in accordance with Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title 2 of the Government Code, and the Administrator shall have all the authority granted to an agency by those provisions. Except as provided in subsection (b)(1)(C) of this section, the Hearing Officer shall issue a decision within 60 calendar days after the completion of any hearing conducted pursuant to this section.
C.
When a cease and desist order is issued pursuant to this chapter,
the hearing shall be scheduled by the Administrator with a Hearing
Officer within 15 calendar days of receipt by the Administrator of
the request for hearing. The Hearing Officer shall issue a decision
within 15 calendar days after the completion of any hearing conducted
pursuant to this subsection.
2.
Administrative
Civil Penalty Hearing. If the Administrator issues a notice of administrative
civil penalty, prior to enforcement of any penalty, the person receiving
the notice shall be afforded an opportunity for a hearing. The notice
shall establish a time, date and place for the hearing before a Hearing
Officer, as follows.
A.
The date for the hearing which shall be no less than 30 calendar
days and no more than 90 days from the date of the notice, except
that if the notice is issued concurrently with a cease and desist
order, the hearing date shall be no more than 45 days from the date
of the notice.
B.
Alternative dates for the hearing may be established by mutual consent
of the person and the Administrator, or as ordered by the Hearing
Officer.
3.
Combined
Hearing. An appeal hearing may be consolidated with a hearing for
an administrative civil penalty, as follows:
A.
If a notice of administrative civil penalty is issued concurrently with a notice of violation or cease and desist order for the same violation or a related set of violations, and if the person files a request for hearing, according to the procedures established in subsection (b)(1)(A) of this section, the appeal hearing shall be conducted in conjunction with the administrative civil penalty hearing.
B.
If a notice of administrative civil penalty is not issued concurrently with a notice of violation or cease and desist order, but is issued within a reasonably close period of time for the same violation or a related set of violations, and if the person receiving the notice or order files a request for hearing according to the procedures established in subsection (b)(1)(A) of this section, the appeal hearing may be conducted in conjunction with the administrative civil penalty hearing, at the discretion of the Hearing Officer.
4.
Recovery
of Hearing Costs. The Administrator may recover the costs incurred
by the County for hearings as follows:
A.
Cost for Appeal Hearing. For appeal hearings, the provisions of Section 15.12.450 notwithstanding, the Administrator shall set a standard fee to be paid by the person at the time that the request for hearing is filed. The purpose of the fee is to recover the County's costs, or portion thereof, for the Hearing Officer. If the person filing a request for hearing prevails on appeal, then the Hearing Officer fee will be refunded by the Administrator. In addition, by order of the Hearing Officer, the County may be awarded its costs, including Hearing Officer fees above and beyond the standard fee, staff time, and attorneys' fees, in defending against an unsuccessful appeal brought without substantial merit, which costs may be charged jointly and severally against the appellants and recovered as costs of enforcement as provided herein. Such an award must be based upon a finding supported by a preponderance of the evidence that the appeal was without substantial merit or was taken for the sole purpose of delay.
B.
Costs for Administrative Civil Penalty Hearing. If the County prevails
in seeking an administrative civil penalty, by order of the Hearing
Officer, the County may be awarded costs incurred while seeking the
penalty, including Hearing Officer fees, staff time, and attorneys'
fees.
5.
If
the Administrator finds that a violation(s) may pose an imminent and
substantial endangerment to the public health or safety or the environment,
any required corrective action established by a notice or order issued
under this chapter that are intended to correct such violations, shall
take effect upon issuance, regardless of the filing of a request for
hearing.
(SCC 1280 § 2, 2004; SCC
1295 § 15, 2005)
a.
General.
At the time set for hearing, the Hearing Officer shall state what
the prima facie case is, what the burden of proof is, and what the
range of penalties is. The Hearing Examiner shall proceed to hear
the testimony of the Administrator, the person, and other competent
persons respecting the circumstances of the violation, and other relevant
facts concerning the matter. The Hearing Officer shall follow the
rules of procedure for conducting hearings established by this Code.
b.
Record
of Oral Evidence at Hearing. A record of the entire hearing proceedings
shall be made by either a certified court reporter or any other means
of permanent recording determined to be appropriate by the Hearing
Officer. A transcript of the proceedings shall be made available to
all parties upon request and upon payment of the fee prescribed therefor.
Such fees may be established and revised from time-to-time by the
Administrator.
c.
Continuances.
The Hearing Officer may, upon request of the person, a party in interest,
or the Administrator, grant continuances from time to time for good
cause shown, or upon his/her own motion. Any continuance granted shall
in no way diminish the responsibility of the person and/or parties
in interest for maintaining the premises, nor affect other requirements
of this chapter regarding time for challenging any decisions made
or actions taken.
d.
Oaths—Certification.
The Hearing Officer or certified shorthand reporter shall administer
the oath or affirmation.
e.
Evidence
Rules. Government Code of the State of California, Section 11513,
as presently written, or hereinafter amended, shall apply to hearings
conducted under this chapter.
f.
Rights
of Parties. Each party may represent themselves, or be represented
by anyone of their choice. Each party may appear at the hearing and
offer evidence in this matter and cross examine witnesses.
g.
Official
Notice. In reaching a decision, official notice may be taken, either
before or after submission of the case for decision, of any fact which
may be judicially noticed by the courts of this state.
h.
Inspection
of Premises. The Hearing Officer may inspect the premises involved
in the hearing prior to, during or after the hearing, provided that:
1.
Notice
of such inspection shall be given to the parties before the inspection
is made;
2.
The
parties are given an opportunity to be present during the inspection;
3.
The
Hearing Officer shall state for the record during the hearing, or
file a written statement after the hearing for inclusion in the hearing
record, upon completion of the inspection, the material facts observed
and the conclusion drawn therefrom; and
4.
Each
party then shall have a right to rebut or explain the matters so stated
by the Hearing Officer either for the record during the hearing or
by filing a written statement after the hearing for inclusion in the
hearing record.
i.
Burden
of Proof. The burden of proof in hearings held pursuant to this chapter
shall be as follows:
1.
In
the case of any notice or order, the Administrator shall bear the
burden of proof, by a preponderance of evidence, to show that a violation
of this chapter has occurred.
2.
In
the case of a notice of administrative civil penalty, the Administrator
shall bear the burden of proof, by a preponderance of evidence, to
show that a penalty should be assessed.
3.
In
the case of an appeal regarding the occurrence of a violation, or
of required corrective actions, the appellant shall bear the burden
of proof, by clear and convincing evidence, to show cause for amending
or rejecting all or part of the corrective actions or requirements
imposed by the Administrator by a notice or order.
(SCC 1295 § 16, 2005)
a.
Following
the hearing, the Hearing Officer shall issue an order in writing no
later than 30 days from the date of the hearing, unless the time is
waived by the parties. The order shall contain findings of fact and
rationale appropriate to the violation and result, and a resolution
of the essential issues raised, including the following:
1.
Confirmation
or denial of the occurrence of violations of this chapter that are
alleged by the Administrator;
2.
Confirmation
or rejection of any administrative civil penalty sought by the Administrator,
and establishment of the monetary amount of any administrative civil
penalty to be enforced.
3.
Confirmation,
amendment, or rejection of required corrective actions related to
compliance with this chapter that are imposed by the Administrator,
but only if those requirements are appealed by the person.
b.
The
Hearing Officer's order concerning any administrative civil penalty
shall be guided by factors including, but not limited to the following:
the danger or harm to public health and safety or the environment
created by the violation; actions by the person to prevent, correct,
or conceal the violation; negligence; intent; recidivism; and any
economic benefit associated with non-compliance.
c.
The Hearing Officer's order shall uphold required corrective actions if the person fails to show clear and convincing evidence that the required corrective actions are unreasonable or unnecessary for achieving or demonstrating ongoing compliance with this chapter. The Hearing Officer's order may amend, or reject required corrective actions, provided that compliance with this chapter will be achieved. The Hearing Officer's order shall not address required corrective actions unless the person files a request for hearing according to the procedures established in Section 15.12.540(b)(1)(A) of this chapter.
d.
The
Hearing Officer's order shall inform the person of the following:
1.
If
the violation is not corrected, or if any required corrective actions
are not met within the time(s) required, that the violation may be
abated by the County, without further notice or consent of the person
or any party in interest, in such manner as may be ordered by the
Hearing Officer, and the expense thereof, including all costs of enforcement,
incurred by the County as a result of the person's failure to comply,
shall be recoverable by the County, and may be made a lien on the
subject premises pursuant to the provisions of Government Code Section
25845. Additionally, upon entry of a second or subsequent order within
a two-year period finding that the person is responsible for a condition
that may be abated in accordance with this chapter and Government
Code Section 25845, or any successor provision thereto, except for
conditions abated pursuant to Section 17980 of the Health and Safety
Code, the Hearing Officer may order the person to pay treble the costs
of abatement pursuant to Government Code Section 25845.5, or any successor
provision thereto.
2.
The
time and manner by which a person may file a challenge to the Hearing
Officer's order is governed by Government Code Section 53069.4, or
any successor provision thereto.
3.
Failure
to comply with the Hearing Officer's order shall constitute a misdemeanor
and is subject to additional enforcement action, including criminal
penalties and additional civil and administrative penalties.
e.
The order issued by the Hearing Officer pursuant to this section shall be effective upon issuance. A copy of the order shall be delivered by the Hearing Officer in accordance with Section 15.12.530.
f.
Preparation of a record of the administrative proceeding shall be governed by the provisions of Sacramento County Code, Chapter 1.06, as presently written or hereinafter amended.
g.
The provisions of Sacramento County Code, Chapter 1.06 notwithstanding, any challenge to the order of the Hearing Officer concerning any appeal or administrative civil penalty shall be governed by Government Code Section 53069.4, or any successor provision thereto. Service of the notice of appeal authorized by Government Code Section 53069.4 on the County shall be served upon the Clerk of the Board.
h.
After
any notice or order made pursuant to this chapter shall have become
final, no person to whom any such order is directed shall fail, neglect
or refuse to obey such order. The Administrator may pursue, through
County Counsel or the District Attorney, appropriate judicial action
against any person who fails to comply with any such notice or order,
including charging that person with a misdemeanor offense.
(SCC 1295 § 17, 2005)
a.
The
administrative penalty shall be due and payable within 30 days after
the Hearing Officer's decision is issued. If the penalty is not timely
paid, the County may pursue all reasonable and legal means in collecting
those sums authorized and due.
b.
All
administrative civil penalties collected from actions brought pursuant
to this chapter shall be paid to the County department(s) enforcing
this chapter, and shall be deposited into a special account that shall
be expended to fund the activities of the department to implement
the applicable provisions of this chapter.
(SCC 1295 § 18, 2005)
This chapter does not do any of the following:
a.
Otherwise
affect the authority of the Administrator to take any other action
authorized by any other provision of law.
b.
Restrict
the power of a city attorney, district attorney, or the Attorney General
to bring, in the name of the people of California, any criminal proceeding
otherwise authorized by law.
c.
Prevent the Administrator from cooperating with, or participating in, proceeding specified in subsection 15.12.549(b).
(SCC 1295 § 19, 2005)
a.
Any
condition in violation of the provisions of this chapter, including,
but not limited to, the maintenance or use of any illicit connection
or the occurrence of any prohibited discharge, is declared and deemed
to be a public nuisance.
b.
At
the request of the Administrator, the County may seek a court order
to enjoin or abate the nuisance, or both. Prior to seeking any court
order to enjoin or abate a nuisance or threatened nuisance, the Administrator
shall issue a cease and desist order to the owner and occupant, if
any, of the Premises where the nuisance or threatened nuisance is
occurring.
c.
At
the request of the Administrator, the County may seek an abatement
warrant or other appropriate judicial authorization to enter the Premises
where any nuisance or threatened nuisance is occurring and to abate
the condition and restore the area.
d.
In
the event the nuisance constitutes an imminent danger to public safety
or the environment, the Administrator may enter the premises from
which the nuisance emanates, abate the nuisance and restore any property
affected by the nuisance without prior notice to or consent from the
owner or occupant thereof and without judicial warrant.
1.
An
imminent danger shall include, but is not limited to, exigent circumstances
created by the dispersal of pollutants, where such pollutants present
a significant and immediate threat to the public health and safety
or the environment.
(SCC 1280 § 2, 2004)
In the interest of achieving consistent enforcement of this
chapter, and in recognition of the need to have enforcement policy
adapted to the structure and practices of various implementing agencies,
each implementing agency that is delegated enforcement responsibility
pursuant to this chapter by the Administrator or the Board shall submit,
to the Director of Water Resources, a draft written enforcement policy.
Each such enforcement policy need only address those enforcement duties
assigned to the implementing agency. Each policy shall address, if
included in the delegated duties, guidelines for: the issuance of
notices of violation, issuance of cease and desist orders, County
stormwater permit administration, abatement, compliance deadlines,
filing periods for administrative appeals, and imposition of administrative
civil penalties. Enforcement policies shall take into consideration
such factors as the nature, circumstances, extent, and gravity of
the violation, and the violator's past and present efforts to comply.
Upon approval by the Director of Water Resources, the enforcement
policy shall be deemed adopted by the implementing agency who shall
use such policy to achieve consistent enforcement standards by said
implementing agency. Any amendments to an enforcement policy must
be submitted to the Director of Water Resources for approval.
(SCC 1280 § 2, 2004; SCC
1295 § 20, 2005)
a.
In addition to any other remedies provided by this chapter, the person may be subject to an administrative civil penalty of up to $5,000 per day for each violation of this chapter. In seeking imposition of an administrative civil penalty, the Administrator shall commence the procedure by issuing a notice of administrative civil penalty, which shall be served and proof of service shall be made in the same manner as provided in Section 15.12.530 of this chapter.
b.
The notice of administrative civil penalty shall state that the recipient has a right to a hearing as set forth in Section 15.12.540 of this chapter.
c.
Procedures concerning notice, conduct of the hearing, and service shall be as provided in Section 15.12.540 of this chapter.
d.
Subsections 15.12.560(a), (b), and (c) notwithstanding, the Administrator may establish a schedule of fines which, if adopted by the Board, and as it may be amended from time to time by the Board, shall become appended to this chapter. The schedule of fines shall define specific violations for which an administrative civil penalty shall apply, and shall assign a specific monetary penalty to be assessed for each violation included in the schedule of fines. When the Administrator has found that such violation has occurred and has issued an appropriate notice or order pursuant to this chapter, the administrative civil penalty shall be enforceable without further action being required. Any person receiving such a schedule of fines penalty shall be entitled to appeal the Administrator's findings giving rise to such penalty pursuant to the procedure established in Section 15.12.540 of this chapter.
(SCC 1280 § 2, 2004; SCC
1295 § 21, 2005)
a.
Any
person who violates any provision of this chapter, undertakes to conceal
any violation of this chapter, continues any violation of this chapter
after notice thereof, fails to or fails to comply with a specified
compliance requirement or a provision of a County stormwater permit,
shall be guilty of a misdemeanor and upon conviction thereof be fined
not more than $1,000 or imprisoned for not more than six months in
the County Jail, or both.
b.
Each
day in which a violation occurs and each separate failure to comply
with either a separate provision of this chapter, a notice of violation,
a cease and desist order, or failure to comply with specified compliance
requirements or a provision of a County stormwater permit, shall constitute
a separate violation of this chapter punishable by fines or sentences
in accordance herewith.
c.
The
Administrator may authorize specifically designated County employees
to issue citations for misdemeanor violations of this chapter pursuant
to Penal Code Section 836.5.
(SCC 1280 § 2, 2004; SCC
1295 § 22, 2005)
a.
Each
and every remedy available for the enforcement of this chapter shall
be non-exclusive and it is within the discretion of the Administrator
to seek cumulative remedies.
b.
The
Administrator may request the County to file a civil action in a court
of competent jurisdiction seeking an injunction against any threatened
or continuing non-compliance with the provisions of this chapter.
Any temporary, preliminary or permanent injunction issued pursuant
to this subsection may include an order for reimbursement to the County
of all costs incurred in enforcing this chapter, including, but not
limited to, costs of inspection, investigation and monitoring, the
costs of abatement undertaken at the expense of the County, costs
relating to the restoration of the environment and any other costs
or expenses authorized by law.
c.
The
Administrator may request the County to file an action for civil damages
in a court of competent jurisdiction seeking recovery of any of the
following:
1.
All
costs incurred in the enforcement of this chapter, including, but
not limited to, costs relating to investigation, sampling, monitoring,
inspection, administrative expenses, all other expenses authorized
by law and consequential damages.
2.
All
costs incurred in mitigating harm to the environment or reducing the
threat to human health.
3.
Damages
for irreparable harm to the environment.
d.
The
County is authorized to file actions for civil damages resulting from
any trespass or nuisance occurring on public property or to the County
storm drain system from any violation of this chapter where such violation
has caused damage, contamination or harm to the environment, public
property or the County storm drain system.
e.
The
remedies available to the County pursuant to the provisions of this
chapter shall not limit the right of the County or any law enforcement
agency to seek any other legal or equitable remedy that may be available
to it.
f.
Each
day in which a violation occurs and each separate failure to comply
with specified compliance requirements or provision of a County stormwater
permit, a separate provision of this chapter, an Administrative enforcement
order, or a cease and desist order shall constitute a separate violation
of this chapter punishable by civil, criminal and administrative penalties
in accordance with this chapter.
(SCC 1280 § 2, 2004; SCC
1295 § 23, 2005)
