Lodi Municipal Code Art. VII Enforcement

Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever an authorized enforcement official has reasonable cause to believe that there exists in any building or upon any premises any condition which constitutes a violation of this chapter, the enforcement official 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. Any request for entry shall state that the property owner or occupant has the right to refuse entry and that in the event that such entry is refused, inspection may be made upon issuance of a warrant issued by a court of competent jurisdiction. In the event the owner or occupant refuses entry after such request has been made, the enforcement official is empowered to seek assistance from any court of competent jurisdiction in obtaining such entry. 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, illegal discharge, non-stormwater discharge to the stormwater conveyance system, or similar factors.

A. Sampling Authority. During any inspection, the enforcement official may take samples as necessary in order to implement and enforce the provisions of this chapter. This authority may include the installation of sampling and metering devices on private property, or requiring the person owning or occupying the premises to supply samples.

B. Monitoring, Analysis and Reporting Authority. The enforcement official may require monitoring, analysis and reporting of discharges from any premises to the stormwater conveyance system. Upon service of written notice by the enforcement official, the burden, including cost, of these activities, analyses and reports, incurred in complying with the requirement shall, to the extent permitted by law, be borne by the property owner or occupant of the facility or activity for which testing and monitoring has been requested.

(Ord. No. 1905, § 1, 6-3-2015)

The enforcement official may exercise any enforcement powers authorized or provided in this code, including without limitation, administrative penalties pursuant to this code, as may be necessary to effectively implement and enforce this chapter.

A. Administrative Enforcement Powers. The enforcement official may also exercise any of the following supplemental enforcement powers as may be necessary or advisable in the enforcement official's judgment under the circumstances:

1. Notice of Violation (NOV). Whenever the enforcement official finds that any person owning or occupying a premises has violated or is violating this chapter or an order issued hereunder, the enforcement official may serve, by personal service, or by registered or certified mail, upon said person a written NOV. Within thirty days of the receipt of this notice, or sooner as may be prescribed in the NOV, the person so noticed shall submit to the enforcement official an explanation of the violation and a plan for the satisfactory correction and prevention thereof, which shall include specific required actions. Submission of this plan shall in no way relieve the person of liabilities for violations occurring before or after receipt of the NOV. Failure to comply with the terms and conditions of a NOV shall constitute a violation of this chapter. If a person fails to comply with the NOV, the enforcement official may perform, or cause to be performed, such work as shall be necessary to correct the violation. The costs of any such work shall be borne by the property owner, and shall be collectable in accordance with the provisions of subsection (A)(9).

2. Cease and Desist Orders. The enforcement official may require any person owning or occupying premises to cease and desist all activities that may cause or contribute to discharge in violation of this chapter. This order may also require such person to: (i) comply with the applicable provisions of this chapter within a designated period of time; or (ii) take appropriate remedial or preventative action to keep the violation from recurring.

3. Notice to Clean and Abate. The enforcement official may require any person owning or occupying premises to clean up and abate any release of pollutants on those premises which may result in a violation of this chapter. The enforcement official may also order abatement of activities or practices which may reasonably be expected to result in such a violation.

4. Mitigation. The enforcement official shall have authority to order the mitigation of circumstances which may result in or contribute to illegal discharges.

5. Stormwater Pollution Prevention Plan. The enforcement official shall have the authority to establish elements of a stormwater pollution prevention plan, and to require any business to adopt and implement such a plan, as may be reasonable and necessary to fulfill the purposes of this chapter.

6. Best Management Practices. The enforcement official may establish the requirements of best management practices for any premises.

7. Violations Constituting Misdemeanors. In addition to civil penalties provided for in this chapter, any violation of this chapter may be punishable as a misdemeanor as provided by Section 1.08.010 of this code.

8. Violations Deemed a Public Nuisance. 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 or welfare and is thus deemed a nuisance. Any such nuisance may be summarily abated and/or restored by any authorized enforcement official. The city attorney is authorized to pursue civil action(s) pursuant to subsection B of this section to abate, enjoin, or otherwise compel the cessation of the nuisance.

9. Cost Recovery. The cost of the abatement and restoration shall be borne by the owner of the property and the cost therefore shall be invoiced to the owner of the property. If the invoice is not paid within sixty days, the enforcement official shall have the authority to place a lien upon and against the property. If the lien is not satisfied within three months, the enforcement official is authorized to take all legal measures as are available to enforce the lien as a judgment, including, without limitation, enforcing the lien in an action brought for a money judgment or by delivery to the county assessor or a special assessment against the property in accordance with Government Code Section 38773.5.

10. Seasonal and Recurrent Nuisance. If any violation of this chapter constitutes a seasonal and recurrent nuisance, the enforcement official shall so declare. Thereafter such seasonal and recurrent nuisance shall be abated every year.

11. Costs of Enforcement. If the city prevails in any administrative, civil or criminal proceeding initiated under this chapter, the city shall be entitled to seek reimbursement for all costs incurred in connection with said proceeding. Such reimbursable expenses may include, but are not limited to, costs of investigation, administrative overhead, out-of-pocket expenses, costs of administrative hearings, and costs of suit. If any such costs are granted to the city, said costs shall be recoverable pursuant to subsection (A)(9) of this section.

12. Administrative Citation.

a. If the owner, or person responsible for the violation, fails to correct the violation within the time specified in the NOV, cease and desist orders, or notice to clean and abate, the enforcement official may cause a violation citation imposing an administrative fine or penalty to be issued to the owner of the property (California Government Code Section 53069.4).

b. Any citation issued shall:

i. Identify the date, time and circumstances of the violation;

ii. State the amount of the penalty to be assessed;

iii. Advise the person of their appeal rights as provided herein.

c. The citation shall be served in the same manner as the NOV. In determining the amount of penalty to be assessed, consideration will be given to the following:

i. The extent to which the owner or person responsible for the violation had knowledge or reasonably should have known that the action taken was a violation of this chapter;

ii. The magnitude of the violation;

iii. The extent to which the owner or person responsible for the violation derived a financial benefit from the violation;

iv. Any prior history of related violations by the same person on the subject property or on other parcels within the city; and

v. Any corrective action, or lack thereof, taken by the owner or person responsible to eliminate the violations, and any other mitigating circumstances justifying a reduction of the amount of the penalties; and

vi. The amount of the penalty shall be derived as outlined in the city's stormwater enforcement response plan or as established and approved by the city council from time to time by resolution.

d. Any person receiving a citation may request an appeal as provided in Section 1.10.250 of the Lodi Municipal Code.

e. If the owner of the property fails to pay the penalty assessed under this section upon demand by the city, the penalty shall be specially assessed against the parcel. The special assessment may be collected at the same time and in the same manner as ordinary county taxes are collected, and shall be subject to the same penalties and the same procedure and sale in case of delinquency as are provided for ordinary County taxes. A notice of abatement lien shall be recorded and shall become a lien on the property pursuant to the provisions of California Government Code Section 38773.5. The director of public works is authorized to prepare and record a notice of release of lien against the legal title of the subject property(s), if the penalty is paid in full.

B. Civil Actions. In addition to any other remedies provided in this chapter, any violation of this chapter may be enforced by civil action brought by the city attorney. Monies recovered 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. In any such action, the city may seek, 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 not to exceed six thousand dollars per day, per occurrence in which such violations occur. The city attorney, upon order of the city council, shall petition the superior court to impose, assess and recover such sums. This penalty is in addition to any penalties which may be imposed by the State Regional Water Quality Control Board and the Environmental Protection Agency. Should the damage also cause the city to be cited for a violation of state or federal requirements, the cost of said citation will be passed onto the offending party.

C. Authority to Arrest or Issue Citations. Any authorized enforcement official shall have and is 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 described by Chapters 5, 5(c) and 5(d) of Title 3, Part 2 of the California Penal Code (or as the same may hereafter be amended). Such authorized enforcement official may issue citations and notice to appear in the manner prescribed by Chapter 5(c) of Title 3, Part 2 of the California 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 California Penal Code be applicable to public officers or employees acting in the course and scope of employment pursuant to this chapter.

D. Emergency Orders and Abatements. The enforcement official may order the immediate abatement of any discharge from any source to the stormwater conveyance system when, in the opinion of the enforcement official, the discharge causes or threatens to cause a condition which presents an imminent danger to the public health, safety, or welfare, or the environment, or a violation of a NPDES permit.

1. Abatement and cleanup of spills, illicit discharges, or dumping to the storm drainage system must occur within seventy-two hours of notification; or sooner for high risk spills or discharges. For areas of uncontrolled pollutant sources, abatement must be performed within thirty days of notification.

2. In emergency situations where the property owner or other responsible party is unavailable and time constraints are such that service of a notice and order to abate cannot be effected without presenting an immediate danger to the public health, safety or welfare, or the environment or a violation of a NPDES permit, the city may perform or cause to be performed such work as shall be necessary to abate said threat or danger.

3. The costs of any such abatement shall be borne by the owner and shall be collectable in accordance with the provisions of subsection (A)(9) of this section.

4. The enforcement official may order the immediate cessation of any activities that cause an illicit discharge or cause or potentially cause uncontrolled pollutants to enter the stormwater conveyance system when, in the opinion of the enforcement official, the activities present an imminent danger to the public health, safety, welfare or environment, or a violation of a NPDES permit. Activities may not resume until the enforcement official has verified that the threat to the environment and the city's MS4 has been abated.

E. Contents of Notice of Violation. Any NOV, cease and desist order, or other civil notice or civil order issued by the enforcement official pursuant to this chapter shall include the following:

1. The street address, parcel number, and/or a legal description sufficient for identification of the property where the violation exists and the address of the person responsible for or committing the act that constitutes a violation of this chapter.

2. A brief and concise description of the violation or use of the property or act that constitutes a violation of this chapter.

3. The date by which the violation must be corrected, which shall be a reasonable period of time.

4. A copy of Section 13.14.450 of this chapter outlining appeal rights.

(Ord. No. 1905, § 1, 6-3-2015)

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. No. 1905, § 1, 6-3-2015)

When the city finds that discharge of unacceptable stormwater has been taking place, or is threatening to take place, in violation of prohibitions or limitations prescribed in this chapter, the city may require the user to submit for approval, with such modifications as it deems necessary a detailed time schedule of specific actions, which the user shall take in order to prevent or correct a violation of requirements.

(Ord. No. 1905, § 1, 6-3-2015)

A. Any person served with a NOV, who is subject to a cease and desist order, who is subject to an abatement order, who is required to perform monitoring, analyses, reporting and/or corrective activities by an authorized enforcement official, or who is otherwise grieved by the decision of the authorized enforcement official, may appeal the decision to the public works director within ten days following the effective date of the decision by filing a written appeal with the public works director. Upon receipt of such request, the public works director shall request a report and recommendation from the authorized enforcement official and shall set the matter for hearing at the earliest practical date. Due notice of the hearing shall be provided to the person appealing the decision of the authorized enforcement official. At the hearing, the public works director may hear additional evidence, and may reject, affirm or modify the authorized enforcement official's decision.

B. If the ruling made by the public works director is unsatisfactory to the person requesting reconsideration, the person, may, within twenty days after notification of the city's action, file a written appeal to the city council. The written appeal shall be heard by the council within twenty days from the date of filing. The city council shall make a final ruling on the appeal within twenty days of the hearing. The determination shall remain in effect during such period of reconsideration.

(Ord. No. 1905, § 1, 6-3-2015)

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 the code or any administrative decision lawfully made thereunder.

(Ord. No. 1905, § 1, 6-3-2015)

The enforcement official is authorized to make any decision on behalf of the city required or called for by this chapter.

(Ord. No. 1905, § 1, 6-3-2015)

The provisions of California Code of Civil Procedure Sections 1094.5 and 1094.6 are applicable to judicial review of city decisions pursuant to this chapter.

(Ord. No. 1905, § 1, 6-3-2015)