Article III — Inspection and Enforcement

Whenever necessary to make an inspection to enforce any of the provisions of this chapter, or whenever the 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 the provisions 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 enforcement official 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 an inspection warrant by a duly authorized judicial officer. In the event the owner and/or occupant refuses entry after such request has been made, the enforcement official is empowered to request such inspection warrant from any court of competent jurisdiction to obtain 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 dye testing to determine illicit connections, random sampling and/or sampling or metering in areas with evidence of storm water contamination, illicit discharges, increase in flow, discharge of non-storm water to the storm water system, or similar factors.

Notwithstanding the above, in exigent circumstances, where there is an imminent threat to the public's health or safety, the emergency procedures outlined in Section 13.16.330, Emergency work by the city, shall be followed.

A.

Authority to Sample and Establish Sampling Devices. The city shall have the right to establish on any property such devices as are necessary to conduct sampling or metering operations. During all inspections as provided herein, the authorized enforcement official may take any samples deemed necessary to aid in the pursuit of the inquiry or in the recordation of the activities onsite.

B.

Notification of Spills. As soon as any person in charge of a facility or responsible for emergency response for a facility has knowledge of any confirmed or unconfirmed release of materials, pollutants or waste which may result in pollutants or non-storm-water discharges entering the city storm sewer system, such person shall take all necessary steps to ensure the discovery and containment and cleanup of such release and

shall contact the appropriate state and local regulatory agencies which have jurisdiction. If hazardous materials are involved, the person in charge of a facility or responsible for emergency response for a facility shall contact immediately, as a minimum, the Oakland Fire Department and Alameda County Hazardous Materials Division and other state and local agencies.

In addition, any person with confirmed or unconfirmed knowledge of release of materials which may result in non-storm-water discharges entering the city storm system shall notify the city of the occurrence by telephoning the Environmental Services Manager and confirming the notification by written correspondence to the Environmental Services Manager within twenty-four (24) hours of said occurrence. During non- business hours, such person shall notify the city of the occurrence by contacting the Oakland Fire Department.

C.

Requirement to Test or Monitor or Provide Reports. Any authorized enforcement official 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, increase in flow, and/or discharge of non-storm water to the storm water system, undertake, at that person's own cost and expense, such monitoring or testing activities and/or analyses and/or furnish such reports and/or documentation as the official may specify. Such reports and/or documentation may include but are not limited to: interpretation of the results of such monitoring activities or tests; description and/or design data or as-built plans for the facility's storm water conveyance system; and/or the facility's waste disposal documentation or records. 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, reports and/or documentation requested. Failure to undertake and provide such monitoring, analyses, reports and/or documentation may result in the city undertaking such and assessing a lien against the property as described in Sections 13.16.300, 13.16.310, 13.16.320 and 13.16.340, in addition to other penalties described in this chapter.

(Ord. 12024 § 1 (part), 1997)

Any person violating or failing to comply with any of the provisions of this chapter may be guilty of an infraction.

(Ord. 12024 § 1 (part), 1997)

Any person convicted of an infraction under the provision of this chapter may be punished upon a first conviction by a fine of not more than one hundred dollars ($100.00) and, for a second conviction within a period of one year, by a fine of not more than two hundred dollars ($200.00) and, for a third or any subsequent conviction within a one-year period, by a fine of not more than five hundred dollars ($500.00). Any violation beyond the third conviction within a one-year period may be charged by the City Attorney or the District Attorney as a misdemeanor and the penalty for conviction of the same may be punishable by a

fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the County Jail for a period of not more than six months or by both.

(Ord. 12024 § 1 (part), 1997)

Unless otherwise provided, a person 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 and shall be punishable accordingly as herein provided.

(Ord. 12024 § 1 (part), 1997)

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

(Ord. 12024 § 1 (part), 1997)

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 may also include notice to the violator of such potential liability.

(Ord. 12024 § 1 (part), 1997)

In addition to the penalties herein 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, and is declared and deemed to be a dangerous condition and a nuisance, and may be summarily abated and/or restored by any authorized enforcement official pursuant to the provisions of Section 13.16.290 et. seq. In addition to or in lieu of the abatement procedures authorized by the enforcement official, civil action to abate, enjoin or otherwise compel the cessation of such nuisance may be taken by the city attorney.

If any violation of this chapter constitutes a seasonal and recurrent nuisance, the City Council shall so declare. Thereafter, such seasonal and recurrent nuisance shall be abated every year without the necessity of any further hearing.

(Ord. 12024 § 1 (part), 1997)

A.

When an authorized enforcement official finds that a non-storm-water discharge or increase in flow has taken place or is likely to take place in violation of this chapter, and/or when an authorized enforcement official finds any oil, earth, dirt, grass, weeds, dead trees, tin cans, rubbish, refuse, waste or any other material of any kind in or upon any parcel of land or grounds, which may result in an increase in pollutants entering the city storm sewer system in violation of this chapter, the enforcement official may declare and deem the violation a nuisance and issue an order to abate such discharge, or practice, or operation, or condition likely to cause such discharge or increase in flow, or result in an increase in pollutants entering the storm drain system and direct that those persons not complying shall:

Comply with the requirement;

Comply with a time schedule for compliance; and/or

Take appropriate remedial or preventive action to prevent the violation from recurring.

B.

Upon declaring and deeming a violation of this chapter a nuisance, an authorized enforcement official shall send a notice of abatement to the property owner and to the business owner/operator. The notice of abatement shall contain the following:

The street address and a legal description of the property sufficient for identification of the premises or property upon which the nuisance is located.

A statement that the enforcement official has determined pursuant to this article that the property owner and the business owner/operator of the subject property are in violation of this chapter.

A statement specifying the dangerous condition.

A statement ordering the property owner and the business owner/operator to abate the dangerous condition, and specifying the manner in which the same shall be abated, and the period within which such abatement shall be accomplished. (In determining said period within which said property owner and said business owner/operator shall abate said dangerous condition, the enforcement official shall consider the nature of said condition and its effect on life, safety, and property together with the time reasonably required by said property owner and said business owner/operator to comply with said order.)

C.

Service of said notice may be made by delivery to the property owner and to the business owner/operator or person in possession personally or by enclosing the same in a sealed envelope, addressed to the occupant at such premises, or to the property owner at his/her last known address as the same appears on the last equalized assessment rolls of the county, postage prepaid, registered or certified mail, return receipt requested, and depositing same in the United States mail. Service shall be deemed complete at the time of the deposit in the United States mail.

D.

It is unlawful for the property owner and/or business owner/operator to fail or neglect to comply with such order or notice of abatement. In the event that the property owner and/or the business owner/operator shall not promptly proceed to abate said dangerous condition, as ordered by the enforcement official, the following abatement procedure may be undertaken.

(Ord. 12024 § 1 (part), 1997)

A.

Notice of Administrative Hearing. The enforcement official, upon failure of the property owner and/or the business owner/operator to promptly proceed to abate said dangerous condition as ordered and/or upon receipt of a written notice from the subject property owner and/or the business owner/operator stating that they wish to appeal the enforcement official's violation determination, may forthwith fix a time and place for an administrative hearing of the matter. In all such cases, the enforcement official shall serve, or cause to be served, notice of said hearing upon the person in possession of such premises, upon the property owner and the business owner/operator thereof, not less than seven days prior to the time fixed for such hearing. The notice shall specify the hour, date and place of the hearing and the dangerous condition that is the subject of the hearing. Service of said notice may be made by delivery to the property owner and to the business owner/operator or person in possession personally or by enclosing the same in a sealed envelope, addressed to the occupant at such premises, or to the property owner at his last known address as the same appears on the last equalized assessment rolls of the county, postage prepaid, registered or certified mail, return receipt requested, and depositing same in the United States mail. Service shall be deemed complete at the time of the deposit in the United States mail.

B.

Administrative Hearing. At the time and place set for the hearing, the Hearing Officer shall hear such evidence as may be presented by said property owner and/or said business owner/operator, person in possession or their representative. Such hearing may be continued from time to time by the Hearing Officer, provided that notice is given in the manner provided in Section 13.16.300A to said property owner and to said business owner/operator or person in possession. Service of said notice shall be deemed complete at the time of deposit in the United States mail. The findings of the Hearing Officer shall be rendered at the time of such hearing and thereupon shall be announced to such property owner and to such business owner/operator, person in possession or their representative, provided that such person(s) appears at the

hearing. Failure to appear at the administrative hearing shall constitute, unless good cause is shown, a waiver of the right to appeal to the City Council.

C.

Appeal. Within three days of the administrative hearing and the announced findings of the Hearing Officer, said property owner and/or said business owner/operator or person in possession may notify in writing the Hearing Officer that he or she wishes to appeal such findings to the City Council. Failure to give the required written notice within the three-day period or failure to appear at the administrative hearing shall constitute, unless good cause is shown, a waiver of the right to appeal to the City Council. Upon timely receipt of notice of an intent to appeal, the Hearing Officer shall give the appellant not less than seven days' prior written notice of the date, place and hour of the appeal to the City Council. Service shall be made in the manner described in Section 13.16.300A of this chapter and shall be deemed complete at the time of deposit in the United States mail.

(Ord. 12024 § 1 (part), 1997)

A.

Nonappearance and Untimely Appeals. In those cases where the property owner and/or the business owner/operator or person in possession either does not appear for the administrative hearing, or appears for the administrative hearing but does not give timely notice of an intent to appeal, and there is no good cause shown, the Hearing Officer may present his report and findings to the City Council for confirmation at the earliest available City Council meeting after the date set for the administrative hearing. Said reports and findings shall be placed on the City Council's agenda and shall be confirmed or overruled by the Council. If the reports and findings are confirmed, the City Council shall direct that the dangerous condition be abated.

Thereafter the Hearing Officer shall forthwith give or cause to be given written notice, in the manner provided in Section 13.16.300A, to the property owner and to the business owner/operator or person in possession of said premises to abate such condition forthwith. Service of said notice shall be deemed complete at the time of deposit in the United States mail. If such abatement is not commenced within seven days thereafter and diligently prosecuted to completion, the Hearing Officer shall, at the property owner's and/or business owner's/op-erator's expense, cause the same to be abated.

B.

Hearing of Appeal. Upon the date and at the place and hour fixed for the Hearing of Appeal and findings of the Hearing Officer, the Council of the city shall hear such evidence as may be presented by the property owner and/or the business owner/operator, person in possession or other representative. Such hearing may be continued from time to time by the City Council. Upon the completion of such hearing, the City Council shall either overrule the findings or shall direct that the dangerous condition be abated.

Upon direction of the City Council to abate, the Hearing Officer shall give written notice, in the manner provided in Section 13.16.300A, to the property owner and to the business owner/operator or person in possession of said premises to abate such condition forthwith. Service of said notice shall be deemed

complete at the time of deposit in the United States mail. If such abatement is not commenced within seven days thereafter and diligently prosecuted to completion, the Hearing Officer shall at the property owner's and business owner's/opera-tor's expense cause the same to be abated.

C.

Abatement. The Council shall order to be paid by the property owner and the business owner/operator of said premises all sums which may be necessarily expended by the Hearing Officer and the authorized enforcement official in abating such condition, including but not limited to the abatement work cost, abatement contract administering costs, and abatement work supervising costs. In lieu of employing a contractor or other person to abate such condition, the Hearing Officer may call upon the Public Works Agency, Maintenance Services Division, or other departments of the city to abate such condition. Upon completion of the abatement work said abatement costs shall be secured by a special assessment lien recorded against the subject property in the office of the County Recorder, Alameda County. Said special assessment lien shall substantially comply with the form outlined in Section 13.16.340. At the time that the city elects to perform the abatement work, the Hearing Officer may record a notice of prospective special assessment lien against the subject property. Such notice shall include a description of the proposed abatement work and an estimate of its costs. The notice shall indicate that the actual costs may exceed the city's estimate.

(Ord. 12024 § 1 (part), 1997)

If upon recordation of the special assessment lien the property owner and/or the business owner/operator fail to pay the abatement costs and any accrued interest, said costs and interest shall constitute a special assessment against that real property abated. The Hearing Officer shall prepare a report of assessment. Said report shall describe the work performed, the date(s) on which it was performed, the costs incurred by the city and any accrued interest. The Hearing Officer shall cause a copy of the report of assessment to be served upon the property owner and the business owner/operator of the subject property. Said report shall be accompanied by a notice of date, time and place of the confirmation hearing before the City Council. Said notice and report shall be served on the property owner and the business owner/operator of the subject property not less than five days prior to the time fixed for confirmation of said assessment, service shall be made in the manner described in Section 13.16.300A, and service shall be deemed complete at the time of deposit in the United States mail.

A copy of the report of assessment shall be posted in the office of the City Clerk at least three days prior to the time when the report will be submitted to the City Council.

At the time set forth in the notice, the City Council shall hear the matter and either modify or confirm the report of assessment. The Council shall confirm said report as presented by the Hearing Officer, unless the Council, after a review of the evidence in the record, finds that either the work assessed was not performed or that there was an error made in calculating the amount owed. After the assessment is made and confirmed, in addition to being a personal obligation of the property owner and the business owner/operator, it shall be a special assessment on the subject property, until said sum, with interest at the maximum legal rate per annum, has been paid in full. Interest shall begin to accrue on the date of lien recordation.

After confirmation of said report, a certified copy of the resolution of confirmation shall be filed with the County Auditor, Alameda County, on or before August 10th. The description of the parcel reported shall be that used for the same parcel as the County Assessor's map books for the current year. The County Assessor shall enter each assessment on the county tax roll opposite the parcel of land. The amount of the assessment shall be collected, and shall be subject to the same penalties and the same procedure for foreclosure and sale in case of delinquencies as provided for ordinary municipal taxes.

(Ord. 12024 § 1 (part), 1997)

A.

Emergency Abatement. Whenever, in the opinion of the authorized enforcement official, an imminent threat to the public's health or safety exists, the enforcement official is authorized to proceed with all necessary work to abate the condition. The official may take whatever reasonable steps are necessary to inspect or abate such imminent hazard without resort to notice, obtaining permission of entry or an inspection warrant. Such official shall, however, provide such pre-inspection or abatement notice and seek permission as appropriate in the circumstances and document the hazard and the reasons it needs to be immediately abated. A post-inspection or abatement hearing shall be held by the Hearing Officer as soon as practical thereafter.

B.

Hearing. At the time and place set for the post-inspection or abatement hearing, the Hearing Officer shall hear such evidence as may be presented by said property owner and/or said business owner/operator, person in possession or their representative, including evidence that no emergency existed. Such hearing may be continued from time to time by the Hearing Officer; provided, that notice is given in the manner provided in Section 13.16.300A to said property owner and to said business owner/operator or person in possession. Service of said notice shall be deemed complete at the time of deposit in the United States mail. The findings of the Hearing Officer shall be rendered at the time of such hearing and thereupon shall be announced to such property owner and to such business owner/operator, person in possession or their representative, provided that such person(s) appears at the hearing. Failure to appear at the administrative hearing shall constitute, unless good cause is shown, a waiver of the right to appeal to the City Council.

C.

Confirmation Hearing. The Hearing Officer or his or her designee shall keep an itemized account of the costs of the abatement work. A report of the costs shall be submitted to the Council for confirmation. The property owner and the business owner/operator shall be given written notice of the confirmation hearing in the manner provided in Section 13.16.300A of this chapter. Service of said notice shall be deemed complete at the time of deposit in the United States mail.

Upon the date and at the place and hour fixed for the confirmation hearing, the Council of the city shall receive said report and hear such evidence as may be presented by the property owner and/or the business owner/operator, including evidence that no emergency existed. Such hearing may be continued from time to time by the City Council. Upon completion of such hearing, the City Council shall either

overrule the Hearing Officer's report or shall confirm it; provided, that the City Council, if good cause exists, may adjust downward the cost of abatement. After the abatement cost is confirmed, it shall be secured by a special assessment lien recorded against said property in the office of the County Recorder, Alameda County, until said sum with interest at the maximum legal rate per annum has been paid. Said special assessment lien shall substantially comply with the form outlined in Section 13.16.340. Interest shall begin to accrue on the date that the special assessment lien is recorded.

If upon recordation of the lien the property owner and/or the business owner/operator fail to pay the confirmed sum and any accrued interest, said sum and interest shall constitute a special assessment against the real property abated and the Hearing Officer shall follow the procedures outlined in Section 13.16.320 to place such assessment on the county tax roll opposite said property. The amount of assessment shall be collected, and shall be subject to the same penalties and the same procedures for foreclosure and sale in case of delinquencies as provided for ordinary municipal taxes.

(Ord. 12024 § 1 (part), 1997)

The special assessment lien mentioned in Section 13.16.330 and Section 13.16.310 shall substantially comply with the following form:

Notice of Special Assessment Lien

  Pursuant to authority vested in me by Resolution No._____ C.M.S., of the Council of the City of Oakland, passed on the ___ day of , 19, and the provisions of Chapter, of the Oakland Municipal Code, I did, on the ___ day of , 19, cause a dangerous condition located upon the hereinafter described real property to be abated at the expense of the property owners thereof, in the amount of $, and that said amount has not been paid nor any part thereof, and the City does hereby claim a special assessment lien upon the hereinafter described real property in said amount; the same shall be a special assessment lien upon the said real property until said sum with interest thereon at the legally allowable rate from the date of the recordation of this special assessment lien in the office of the County Recorder of the County of Alameda, State of California, has been paid in full. The real property hereinabove mentioned and upon which a special assessment lien is claimed is that certain parcel of land lying and being in the City of Oakland, County of Alameda, State of California, and particularly described as follows, to wit:

(Insert Description of Property)

Dated this ___ day of __, 19.

---

(Title of Hearing Officer)

City of Oakland

(Ord. 12024 § 1 (part), 1997)

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. 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, including but not limited to attorney compensation.

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. 12024 § 1 (part), 1997)

In addition to the other enforcement powers and remedies established by this chapter, any authorized enforcement official has the authority to utilize the following administrative remedies:

A.

Cease and Desist Order. When an authorized enforcement official finds that a non-storm-water discharge has taken place or is likely to take place in violation of this chapter, the enforcement official may issue an order to cease and desist such non-storm-water 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.

Any person failing to comply with said cease and desist order shall be guilty of an infraction and may be subject to the penalties outlined in Section 13.16.240, Penalty for violation, and to all other enforcement procedures outlined in this chapter. In addition, failure to undertake the activities described in said cease and desist order may result in the city undertaking an abatement action and assessing a lien against the property in accordance with the procedures outlined in Sections 13.16.290 through 13.16.340 of this chapter.

B.

Notice to Clean. Whenever an authorized enforcement official 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 sewer system or a non-storm-water discharge to the city storm sewer 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.

Any person failing to comply with said notice to clean shall be guilty of an infraction and may be subject to the penalties outlined in Section 13.16.240, Penalty for violation, and to all other enforcement procedures outlined in this chapter. In addition, failure to undertake the activities described in said notice to clean may result in the city undertaking an abatement action and assessing a lien against the property in accordance with the procedures outlined in Sections 13.16.290 through 13.16.340 of this chapter.

C.

Suspension of Permits. Failure of any person engaged in an activity, development or work, and/or owning or operating any facility which may cause violations of this chapter to cease such activities or comply with corrective measures upon receipt of notice from an authorized enforcement official, shall be cause for revocation or suspension of any permit issued by the city and/or its boards, commissions, departments, officers and the City Council.

When any person is found to be in violation of this chapter, the enforcement official may request the permit issuing authority to suspend or revoke any building permit, grading permit, encroachment permit, conditional use permit and any other permit issued by the city and/or its boards, commissions, departments, officers and the city council associated with the subject property until such time that applicant is found to be in compliance with the provisions of this chapter. The procedures that govern the suspension, revocation and appeal process of the individual permit shall be followed.

(Ord. 12024 § 1 (part), 1997)

When an authorized enforcement official finds that a violation of this chapter has taken place or is likely to take place, the enforcement official may assess civil penalties pursuant to the standards and procedures established in Chapter 1.08 of this code and any amendments or revisions thereto.

(Ord. 12024 § 1 (part), 1997)

When an authorized enforcement official finds that a violation of this chapter has taken place or is likely to take place, the enforcement official may issue administrative citations pursuant to the standards and procedures established in Chapter 1.12 of this code and any amendments or revisions thereto.

(Ord. 12024 § 1 (part), 1997)

When an authorized enforcement official finds that a violation of this chapter has taken place or is likely to take place, the enforcement official may record a notice of violation limiting the use of the property pursuant to the standards and procedures established in Chapter 1.16 of this code and any amendments or revisions thereto.

(Ord. 12024 § 1 (part), 1997)

Whenever an authorized enforcement official determines that upon reinspection of the premises there has been a failure to comply with any orders, notices or directions of the city, the enforcement official may charge a reinspection fee.

(Ord. 12024 § 1 (part), 1997)

Authorized enforcement officials 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. 12024 § 1 (part), 1997)

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. The enforcement official shall have the discretion to select a particular remedy to further the purposes and intent of the chapter, depending on the particular circumstances. The enforcement official's decision to select a particular remedy is not subject to appeal.

(Ord. 12024 § 1 (part), 1997)

The property owner and the business owner/operator shall he jointly and severally liable for violations of this chapter.

(Ord. 12024 § 1 (part), 1997)