Part 3 — INSPECTION AND ENFORCEMENT

7830. • AUTHORITY TO INSPECT.

A.

Right to Enter. Whenever necessary to make an inspection to enforce any of the provisions of this Chapter, or whenever an Authorized Enforcement Officer has reasonable cause to believe that there exists in any building or upon any premises any condition which constitutes a violation of the provisions of this Chapter, the officer may enter such building or premises at all reasonable times to inspect the same or perform any duty imposed upon the officer by this Chapter; provided that (i) if such building or premises be occupied, he or she shall first present proper credentials and request entry; and (ii) if such building or premises be unoccupied, he or she shall first make a reasonable effort to locate the owner or other persons having charge or control of the building or premises and request entry. Any such request for entry shall state that the property owner or occupant has the right to refuse entry and that in the event such entry is refused, inspection may be made only upon issuance of a search warrant by a duly authorized magistrate. In the event the owner and/or occupant refuses entry after such request has been made, the officer is empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

Routine or area inspections shall be based upon such reasonable selection processes as may be deemed necessary to carry out the objectives of this Chapter, including but not limited to random sampling and/or sampling in areas with evidence of stormwater contamination, illicit discharges, discharge of nonstormwater to the stormwater system, or similar factors.

B.

Authority to Sample and Establish Sampling Devices. When required by this Chapter, with the consent of the owner or occupant, or pursuant to a search warrant, any Authorized Enforcement Officer may establish or require the establishment on any premises such devices as are necessary to conduct sampling or metering operations. During all inspections as provided in this Chapter, the officer may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities onsite.

C.

Requirement to Test or Monitor. Any Authorized Enforcement Officer may request that any person engaged in any activity and/or owning or operating any facility which may cause or contribute to stormwater pollution or contamination, illicit discharges, and/or discharge of nonstormwater to the stormwater system, undertake such monitoring activities and/or analyses and furnish such reports as the officer may specify. The burden, including costs, of these activities, analyses and reports shall bear a reasonable relationship to the need for the monitoring, analyses and reports and the benefits to be obtained. The recipient of such request shall undertake and provide the monitoring, analyses and reports required.

D.

Records Review. When required by the Director, by this chapter, or by any law or regulation, maintenance records must be kept onsite and remain available for inspection. Failure to keep records on site and available for inspection shall constitute a violation of this Chapter. The Director may inspect, review and copy all records relating to any discharge to the storm drain system or receiving waters.

E.

If an inspection pursuant to this section results in an enforcement action, the City may issue an invoice of costs and recover in an enforcement action its reasonable inspection costs.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

The Director may, together with the City Attorney, develop and implement an Enforcement Response Plan setting forth enforcement procedures and actions to address repeat and continuing violations of this Chapter, a Spill Response Plan setting forth the procedures, roles and responsibilities for investigating, cleaning up, and reporting spills.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7831. • VIOLATIONS CONSTITUTING MISDEMEANORS.

Unless otherwise specified by this Chapter, the violation of any provision of this Chapter, or failure to comply with any of the mandatory requirements of this Chapter shall constitute a misdemeanor; except that notwithstanding any other provisions of this Chapter, any such violation constituting a misdemeanor under this Chapter may, at the discretion of the Authorized Enforcement Officer may be charged and prosecuted as an infraction. A violation of this Chapter shall occur irrespective of the negligence or intent of the violator to construct, maintain, operate, or utilize an illicit connection, or to cause, allow, or facilitate any illicit discharge.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

Upon conviction of a misdemeanor, a person shall be subject to payment of a fine, or imprisonment, or both, not to exceed the limits set forth in California Government Code Section 3690I.

Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in California Government Code Section 36900. After a third conviction for a violation of the same provision subsequent violations within a twelve (12) month period may be charged as a misdemeanor.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

Unless otherwise provided, a person, firm, corporation or organization shall be deemed guilty of a separate offense for each and every day during any portion of which a violation of this Chapter is committed, continued or permitted by the person, firm, corporation or organization and shall be punishable accordingly as provided in this Chapter.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

Causing, permitting, aiding, abetting or concealing a violation of any provision of this Chapter shall constitute a violation of such provision.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

PORTER-COLOGNE ACT.

Any person who violates any provision of this Chapter, any provision of any permit issued pursuant to this Chapter, or who discharges waste or wastewater which causes pollution, or who violates any cease and desist order, prohibition, or effluent limitation, may also be in violation of the Federal Clean Water Act and/or Porter-Cologne Act and may be subject to the sanctions of those Acts including civil and criminal penalty. Any enforcement action authorized under this Article should also include notice to the violator of such potential liability.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

In addition to the penalties hereinbefore provided, any condition caused or permitted to exist in violation of any of the provisions of this Chapter is a threat to the public health, safety and welfare, is declared and deemed a nuisance, may be summarily abated and/or restored by any Authorized Enforcement Officer, and/or civil action to abate, enjoin or otherwise compel the cessation of such nuisance may be taken by the City Attorney.

The cost of such abatement and restoration shall be borne by the owner of the property and the cost thereof shall be invoiced to the owner of the property. If the invoice is not paid within sixty (60) days, a lien shall be placed upon and against the property. If the lien is not satisfied within three (3) months, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

If any violation of this Chapter constitutes a seasonal and recurrent nuisance, the Public Works Services Director shall so declare. Thereafter such seasonal and recurrent nuisance shall be abated every year without the necessity of reconvening the initial process of a public nuisance declaration and cessation order by the City Attorney.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7832. • RECOVERY OF ALL COSTS.

In any administrative, civil or criminal proceeding under this Chapter in which the City prevails, the City shall be entitled as part of judgment or decision all costs of investigation, administrative overhead, out-of- pocket expenses, costs of administrative hearings, costs of required education programs, costs of suit and reasonable attorney and expert fees.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7833. • CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1094.6.

The provisions of Section 1094.6 of the California Code of Civil Procedure are applicable to judicial review of City decisions pursuant to this Chapter. The City shall give notice of its decisions and of this Section to all interested persons.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7834. • CIVIL ACTIONS.

In addition to any other remedies provided in this Section, any violation of this Section may be enforced by civil action brought by the City. In any such action, the City may seek, and the Court shall grant, as appropriate, any or all of the following remedies:

(1)

A temporary and/or permanent injunction;

(2)

Assessment of the violator for the costs of any investigation, inspection, or monitoring survey which led to the establishment of the violation, and for the reasonable costs of preparing and bringing legal action under this subsection;

(3)

Costs incurred in removing, correcting, or terminating the adverse effects resulting from the violation;

(4)

Compensatory damages for loss or destruction to water quality, wildlife, fish and aquatic life. Assessments under this subsection shall be paid to the City to be used exclusively for costs associated with monitoring and establishing stormwater discharge pollution control systems and/or implementing or enforcing the provisions of this Chapter.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7835. • ADMINISTRATIVE ENFORCEMENT POWERS.

In addition to the other enforcement powers and remedies established by this Chapter, any Authorized Enforcement Officer has the authority to utilize the following administrative remedies.

(a)

Cease and Desist Orders. When an Authorized Enforcement Officer finds that a discharge has taken place or is likely to take place in violation of this Chapter, the officer may issue an order to cease and desist such discharge, or practice, or operation likely to cause such discharge and direct that those persons not complying shall: (1) comply with the requirement, (2) comply with a time schedule for compliance, and/or (3) take appropriate remedial or preventive action to prevent the violation from recurring.

(b)

Notice to clean. Whenever an Authorized Enforcement Officer finds any oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind, in or upon the sidewalk abutting or adjoining any parcel of land or grounds, which may result an increasing of pollutants entering the storm drain system, he or she may give notice to remove such oil, earth, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or other material, in any manner that he or she may reasonably provide. The recipient of such notice shall undertake the activities as described in the notice.

In the event the owner or operator of a facility fails to conduct the required activities as described in the notice, the Authorized Enforcement Officer may cause such required activities as described in the notice and the cost thereof shall be invoiced to the owner of the property. If the invoice is not paid within sixty (60) days, a lien shall be placed upon and against the property. If the lien is not satisfied by the owner of the property within three (3) months, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7836. • AUTHORITY TO ARREST OR ISSUE CITATIONS.

Authorized Enforcement Officers shall have and are vested with the authority to arrest or cite and release any person who violates any Section of this Code in the manner provided by the California Penal Code for the arrest or release on citation of misdemeanors or infractions as prescribed by Chapter 5, 5c, and 5d of Title 3, Part 2 of the Penal Code (or as the same may be hereinafter amended). Such Authorized Enforcement Officers or employees may issue a citation and notice to appear in the manner prescribed by Chapter 5c of Title 3, Part 2 of the Penal Code, including Section 853.6 or as the same may hereafter be amended. It is the intent of the City Council that the immunities prescribed in Section 836.5 of the Penal Code be applicable to public officers or employees or employees acting in the course and scope of employment pursuant to this Chapter.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7837. • REMEDIES NOT EXCLUSIVE.

Remedies under this Article are in addition to and do not supersede or limit any and all other remedies, civil or criminal. The remedies provided for in this Chapter shall be cumulative and not exclusive.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7838. • APPEAL.

Any person, firm, corporation or organization required to perform monitoring, analyses, reporting and/or corrective activities by an Authorized Enforcement Officer who is aggrieved by the decision of the Authorized Enforcement Officer may appeal such decision in writing to the Public Works Services Director within ten (10) days following the effective date of the decision. The Public Works Services Director shall request a report and recommendation from the Authorized Enforcement Officer and shall set the matter for hearing at the earliest practical date. At the hearing, the Public Works Services Director may hear additional evidence, and may reject, affirm or modify the Authorized Enforcement Officer's decision. The decision shall be final.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)

7839. • DISCLAIMER OF LIABILITY.

The degree of protection required by this Chapter is considered reasonable for regulatory purposes and is based on scientific, engineering and other relevant technical considerations. The standards set forth in this Chapter are minimum standards and this Chapter does not imply that compliance will ensure that there will be no unauthorized discharge of pollutants into the waters of the United States. This Chapter shall not create liability on the part of the City, any officer or employee thereof for any damages that result from reliance on this Chapter or any administrative decision lawfully made thereunder.

(Ord. No. 2325, § 1(Exh. A), 4-7-15)