Oakland Municipal Code Art. IV Administrative, Civil, and Criminal Liabilities and Penalties

This article sets out the administrative, civil, and criminal liabilities and penalties available under the Oakland Municipal Code for illegal dumping on City or other public property and private property.

(Ord. No. 13195, § 1, 10-15-2013)

Pursuant to O.M.C. Subsection 1.24.020 B., the City Administrator shall have the power to designate, by written order, that particular officers or employees shall have the authority to arrest or cite persons in violation of this Chapter.

(Ord. No. 13195, § 1, 10-15-2013)

A. The City may assess administrative citations or civil penalties pursuant to O.M.C. Chapter 1.08 (Civil penalties) or Chapter 1.12 (Administrative citations) against a dumping violator or litter violator.

B. Administrative Citations. In instances of illegal dumping where the amount of waste matter is reasonably believed not to be a commercial quantity or to contain harmful waste matter, the dumping violator may be assessed an administrative citation in accordance with O.M.C. Chapter 1.12.

1. If the City issues more than three administrative citations issued to one person within a three-year period of the first citation each such citation in excess of three is considered a major violation and shall be assessed as a civil penalty pursuant to O.M.C. Chapter 1.08.

C. Civil Penalties.

1. The following are considered major violations and shall be assessed a civil penalty: pursuant to O.M.C. Chapter 1.08: where the illegal dumping constitutes a commercial quantity, contains harmful waste matter, is a mattress, upholstered furniture, appliance, furniture, or electronic waste, or the dumping violator has committed more than three acts of illegal dumping within a three-year period.

2. Determining the Amount of Civil Penalty. In determining the amount of a civil penalty, all relevant circumstances shall be considered, including but not limited to: costs to the City relating to clean-up caused by the dumping violator, special costs to the City in the form of the payment of any reward, the quantity of waste matter, whether the waste matter contains harmful waste matter, the history of previous violations by the dumping violator, the assets, liabilities and net worth of the person, and any corrective action taken by dumping violator.

3. Determining Separate Violations. The following are considered separate instances of illegal dumping each of which is subject to an individual assessment of a civil penalty:

a. Each individual mattress, piece of upholstered furniture, furniture, appliance, or electronic waste. For purposes of assessment of penalties, a mattress and foundation constitute two separate instances of illegal dumping even if they are from a set.

b. A commercial quantity of waste matter that also contains harmful waste matter, a mattress, upholstered furniture, furniture, appliance or electronic waste may be cited both as a commercial quantity and separately as harmful waste, mattress, upholstered furniture, furniture, appliance, or electronic waste.

c. Each individual act of illegal dumping at the same location.

d. An amount of illegal dumping that exceeds three cubic yards or requires more than one pick-up truck load to remove may be cited for each amount of three cubic yards or truck loads required to remove the waste matter.

4. Time Calculation for Assessment of Penalties.

a. Penalty or Citation Days. For purposes of calculating the number of days for assessment of a civil penalty or administrative citation, the days start to run when the illegal dumping is first discovered by a witness, subject to the evidentiary presumption below, and end when the cleanup is complete.

b. Burden of Producing Evidence as to When Illegal Dumping Occurred. If the City does not have direct evidence as to when the illegal dumping occurred, in assessing administrative fines or penalties, the act of illegal dumping shall be presumed to have occurred five days prior to its discovery and the burden of producing evidence as to when it occurred shall be on the dumping violator. The presumption may be rebutted by contrary evidence.

5. Each act of illegal dumping is subject to an administrative citation or civil penalty in accordance with the provisions of this Chapter. Illegal dumping on the same location, at different times are each considered a separate violation. Each act of illegal dumping on a separate area of a single location is a separate violation even if each occurs on the same general time and day. Each person who participates in an act of illegal dumping is subject to a separate administrative citation or civil penalty.

6. The City may notice a dumping violator to remove illegal dumped waste matter from City or private property (with the property owner's prior approval). If a dumping violator is noticed to remove illegally dumped material and fails to remove the same within 24 hours after notice by the City or the property owner, such failure to timely remove the illegally dumped material constitutes a separate violation and is a major violation subject to civil penalties.

7. In addition to assessing administrative citations or civil penalties, a dumping violator also shall be assessed costs relating to the illegal dumping. Each person who participates in an act of illegal dumping is jointly and severally liable with all other persons who participated in that act of illegal dumping for the costs of that act of illegal dumping.

(Ord. No. 13195, § 1, 10-15-2013)

A. Any person or entity, public or private, on whose property waste matter has been illegally dumped, may bring a civil action against a dumping violator. In addition, a duly established business improvement district, merchants' association, or business, community, or neighborhood association or organization that cleans up illegal dumping on behalf of its members may bring an action against a dumping violator to recover its costs of removal.

B. Costs and Damages Recoverable. The following damages may be assessed against a dumping violator:

1. The cost of abatement;

2. Any cost for loss of use of the property on which the illegal dumping has been placed;

3. Costs of investigation, including the cost of any code enforcement or police resources used to investigate each incident, as are set out in the master fee schedule;

4. Attorney fees and costs involved in the investigation;

5. Cost of suit;

6. Treble damages if the dumping violator has been found to have committed multiple acts of illegal dumping within a three-year period; and

7. Punitive damages if appropriate under applicable State law and under State law standards.

C. Joint and Several Liability. Each person who participates in an act of illegal dumping is jointly and severally liable with any other person who participates for all costs, damages, penalties, and attorneys' fees related to that act of illegal dumping.

(Ord. No. 13195, § 1, 10-15-2013)

A. The City Attorney may bring an action to recover costs incurred by the City through the following methods:

1. Civil Action. The City Attorney may bring and maintain a civil action in the name of the City to obtain a money judgment against the defendant for any amount not ordered or collected by a criminal court, including, but not limited to, all costs, attorney's fees, in addition to civil penalties incurred in connection with the civil prosecution of any claim for damages or reimbursement.

B. The City Attorney also may seek to recover the City's costs incurred relative to the illegal dumping, or such other costs as the City may have. The City Attorney may do so in any of the following ways:

1. Bring an action on the City's behalf to recover such costs;

2. Join an action brought by a private party to recover damages and costs relating to illegal dumping;

3. Authorize a private party or other public entity on whose property the illegal dumping occurred to bring the action on the City's behalf;

4. In the event the City Attorney brings an action to cover the City's costs of illegal dumping, at the City Attorney's sole election, and with the permission of the private party or other public entity on whose property the illegal dumping occurred, the City Attorney may pursue the private party or other public entity's claims against the dumping violator for damages and costs.

C. The City Attorney also may bring actions for injunctive or equitable relief against dumping violators.

D. The City Attorney may prosecute illegal dumping violators for misdemeanor or infractions pursuant to this Chapter, so long as the City Council has provided funding for such prosecutions. Such prosecutorial authority is not intended to diminish and shall not alter or impact the authority of the Alameda County District Attorney also to bring prosecutions under this Chapter or under applicable State law.

(Ord. No. 13195, § 1, 10-15-2013)

In any administrative, civil, or special proceeding to abate illegal dumping, the City may, at the initiation of the proceeding, seek an award of attorney's fees. If the City seeks an award of attorney's fees, the award shall be made to the prevailing party. Provided however, that no award may be made to a prevailing party that exceeds the amount of reasonable attorney's fees incurred by the City in the action or proceeding.

(Ord. No. 13195, § 1, 10-15-2013)