Firebaugh Municipal Code § 29-3 Inspection and Enforcement

[Ord. #93-8, S1]

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 except as permitted for emergency or open space inspections. In the event the owner and/or occupant refuses entry after such request has been made, the officer is hereby empowered to seek assistance from any court of competent jurisdiction in obtaining such entry.

Any circumstance where there appears an immediate threat to the public health or safety is an emergency situation. In an emergency situation, any authorized enforcement officer may enter any structure or premises without the consent of any person and without court process.

In any circumstance when it is necessary for the purposes of investigating or enforcing the provisions of this chapter, any authorized enforcement officer may enter open space areas without forcing entry. Said officer may enter such premises at any time to inspect the same, or to perform any duty imposed by law.

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 storm water contamination, illicit discharges, discharge of nonstorm water to the storm water system, or similar factors.

a. Authority to Sample and Establish Sampling Devices. With the consent of the owner or occupant or pursuant to a search warrant, any authorized enforcement officer may establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the officer may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities on-site. Emergency or open space samplings may be conducted by any authorized enforcement officer without the consent of the owner or occupant and without a search warrant.

b. Notification of Spills. All persons in charge of a facility or responsible for emergency response for a facility, have a personal responsibility to train facility personnel and maintain notification procedures to assure immediate notification is provided to city of any suspected, confirmed or unconfirmed release of material, pollutants or waste creating a risk of discharge into the city storm drain system.

As soon as any person in charge of a facility or responsible for emergency response for a facility has knowledge of any suspected, confirmed or unconfirmed release of materials, pollutants or waste which may result in pollutants or nonstorm water discharge entering the city storm drain system, such person shall take all necessary steps to ensure the discovery and containment and cleanup of such release and shall notify the city of the occurrence by telephoning and confirming the notification by correspondence to Director of Public Works, 1575 11th Street, Firebaugh, CA 93622, Attn.: Spill Notification.

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 storm water pollution or contamination, illicit discharges, and/or discharges of nonstorm water to the storm water 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. In the event the owner or operator of a facility subject to a monitoring and/or analyses order fails to conduct required monitoring and/or analyses and furnish required reports in the form required, the authorized enforcement officer may cause such monitoring and/or analyses and the cost, by the city shall be borne by the owner of the property and the cost thereof shall be a lien upon and against the property. Such lien shall continue in existence until the same shall be paid. If the lien is not satisfied by the owner of the property within three months after the completion by an authorized enforcement officer of the required monitoring and/or analyses and reports, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

[Ord. #93-8, S1]

"Unless otherwise specified by ordinance, the violations 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, be charged and prosecuted as an infraction.

[Ord. #93-8, S1]

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 section 36901 of the California Government Code. Upon conviction of an infraction, a person shall be subject to payment of a fine, not to exceed the limits set forth in section 36900 of the California Government Code. After a third conviction for a violation of the same provision subsequent violations within a twelve-month period may be charged as a misdemeanor.

[Ord. #93-8, S1]

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 herein provided.

[Ord. #93-8, S1]

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

[Ord. #93-8, S1]

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 chapter should also include notice to the violator of such potential liability.

[Ord. #93-8, S1]

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, and/or civil action to abate, enjoin or otherwise compel the cessation of such nuisance may be taken by city counsel.

The cost of such abatement and restoration shall be borne by the owner of the property and the cost thereof shall be a lien upon and against the property and such lien shall continue in existence until the same shall be paid. If the lien is not satisfied by the owner of the property within three months after the completion by the authorized enforcement officer of the removal of the nuisance and the restoration of the property to its original condition, 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 director of public works shall so declare. Thereafter such seasonal and recurrent nuisance shall be abated every year without the necessity of any further hearing.

In any administrative or civil proceeding under this chapter in which the city prevails, the city shall be awarded all costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, costs of suit and reasonable attorney's fees.

[Ord. #93-8, S1]

The provisions of section 1094.6 of the California Code of Civil Procedure are applicable to judicial review of county decisions pursuant to this chapter.

[Ord. #93-8, S1]

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:

a. A temporary and/or permanent injunction.

b. 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.

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

d. 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 storm water discharge pollution control systems and/or implementing or enforcing the provisions of this chapter.

[Ord. #93-8, S1]

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: a) comply with the requirement, b) comply with a time schedule for compliance, and/or c) 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 upon any parcel of land or grounds, which may result in an increase in pollutants entering the city storm drain system, he or she may give notice to remove such oil, earth, dirt, 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. The cost of such activities shall be borne by the owner of the property and the cost thereof shall be a lien upon and against the property. Such lien shall continue in existence until the same shall be paid. If the lien is not satisfied by the owner of the property within three months after the completion by the authorized enforcement officer of the required activities, the property may be sold in satisfaction thereof in a like manner as other real property is sold under execution.

[Ord. #93-8, S1]

Authorized enforcement officers shall have and are hereby vested with the authority to arrest or cite and release any person who violates any section of this chapter 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 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.

Bail for infractions shall be set by city resolution.

[Ord. #93-8, S1]

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

[Ord. #93-8, S1]

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 to the director of public works within 10 days following the effective date of the decision by writing to the director of public works. Upon receipt of such request, the director of public works shall request a report and recommendation from the authorized enforcement officer and shall set the matter for hearing at the earliest practical date. At said hearing, the director of public works may hear additional evidence, and may reject, affirm or modify the authorized enforcement officer's decision. Said decision shall be final. The provision of appeal as described herein does not include any requirement to perform monitoring, analyses, reporting and/or corrective activities arising from an emergency situation.

[Ord. #93-8, S1]

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 herein 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.