§ 37-611. Violations of section 37-604; penalties and appeals.

(a)

Section 37-604 of this article ("Landscape irrigation restrictions, days and times") may be enforced by the means provided in this section and in section 37-610(b), rather than exclusively by the means provided in chapter 11 of the Orange County Code. Code enforcement officers are hereby authorized to issue a notice of violation of section 37-604 of this article when, based upon personal investigation, the code enforcement officer has reasonable cause to believe a violation has occurred. Because violations of section 37-604 of this article are irreparable and irreversible, a code enforcement officer is not required to provide the alleged violator with a reasonable time to correct the violation prior to issuing a notice of violation.

(b)

A notice of violation shall be provided by the code enforcement officer to the alleged violator by U.S. mail. A copy of the notice of violation shall be provided by the code enforcement officer to the record owner of the property where the violation occurred by U.S. mail. In addition, where feasible, a notice of violation shall also be provided by hand delivery by one (1) of the following methods:

(1)

If at a residence, by leaving a copy of the notice with the alleged violator;

(2)

If at a residence where the alleged violator is absent, by leaving a copy of the notice with any person therein who is fifteen (15) years of age or older and informing the person of the contents;

(3)

If at a business, by leaving a copy of the notice at the business during regular business hours with any employee and informing the employee of the contents. Each employee of the business shall be deemed to be an agent of the business for service of notices of violation.

(4)

If at a residence or business where no one is available for service, by leaving a copy of the notice in a conspicuous place near the primary entrance.

Failure to accomplish hand delivery shall not be deemed to invalidate the notice of violation, if the notice is also delivered by certified mail.

(c)

The notice of violation shall include at a minimum:

(1)

Address where the violation occurred;

(2)

The number or section of the code that has been violated;

(3)

Date and time of the violation;

(4)

Date and time the notice of violation was issued;

(5)

Statement that the code enforcement officer was present at the premises and had reason to believe the violation occurred;

(6)

The name of the code enforcement officer;

(7)

The amount of the civil penalty and date by which it must be paid or contested;

(8)

Procedures for payment of the penalty and for contesting the violation;

(9)

Statement that failure to pay the penalty or to contest the violation in a timely manner will be considered an admission of liability; and

(10)

If the violation occurred on property of a customer of the Orange County Utilities Department, statement that a civil penalty not successfully contested will be incorporated into the customer account, payable in the monthly utility bill.

(11)

A conspicuous statement that if the person fails to pay the civil penalty within the time allowed, or fails to appear to contest the notice of violation, the person shall be deemed to have waived his or her right to contest the notice of violation and that, in such case, he or she may be ordered to pay an amount up to the maximum civil penalty and associated costs.

(d)

The first violation of section 37-604 at a given address shall not merit a civil penalty, although a notice of violation shall nonetheless be issued. Each subsequent violation at that address shall merit a civil penalty of twenty-five dollars ($25.00). A violation that occurs three (3) years or more after the last violation at that address shall be considered a first violation.

(e)

After issuing a notice of violation, the code enforcement officer shall deposit one (1) copy with the clerk to the hearing officer as established herein and retain one (1) copy in the code enforcement officer's department or division file.

(f)

Any person to whom is issued a notice of violation hereunder shall either:

(1)

File a notice of appeal within thirty (30) days of the date of the notice of violation, or

(2)

Pay the assessed civil penalty as instructed on the notice.

Any person who does not file a notice of appeal as provided in subsection (h) below to contest the notice of violation within thirty (30) days of the date of a notice of violation admits liability, waives the right to contest the notice of violation, and shall be subject to the penalties provided hereunder.

(g)

If the alleged violator elects not to contest the notice of violation and pays the penalty noted thereon by utility bill or otherwise, payment shall constitute an admission of the civil infraction and shall constitute a waiver of the alleged violator's right to a hearing. The clerk to the hearing officer as established herein shall retain a copy of the receipt of the penalty payment.

(h)

If the alleged violator elects to contest the notice of violation, he or she shall file a notice of appeal within thirty (30) days of the date of the notice of violation. Each notice of appeal shall:

(1)

Be accompanied by a filing fee of twenty-five dollars ($25.00);

(2)

Be addressed to the water division manager;

(3)

Be either hand-delivered to the water division manager or postmarked within thirty (30) days after the date of the notice of violation;

(4)

Contain a written statement of the reasons for appeal and any supporting papers the appellant desires; and

(5)

If applicable, contain a written statement of the reason(s) the appellant objects to inclusion of the civil penalty on the utility bill.

(i)

Upon receipt of a timely appeal, the water division manager shall schedule a hearing date before the hearing officer, as established herein, to occur no later than sixty (60) days after receipt of the notice of appeal. A notice of hearing shall be sent to the appellant no less than ten (10) days before the hearing by U.S. mail at the same address to which the notice of violation was sent, unless the appellant provides a different address.

(j)

At the hearing, no formal rules of evidence shall apply and all relevant evidence may be submitted. Hearsay evidence may be admitted but may not form the sole basis of the hearing officer's decision. Irrelevant and repetitious evidence may be excluded. The code enforcement officer and the appellant shall have an opportunity to present evidence and to examine and cross-examine witnesses. The hearing shall be conducted in a manner to ensure that the appellant is afforded procedural and substantive due process.

(k)

After conclusion of the hearing, the hearing officer shall issue a written order granting or denying the appeal. Appeals shall be granted unless the hearing officer finds by clear and convincing evidence the violation occurred. If the appeal is granted, the filing fee shall be returned to the appellant. If the appeal is denied, the hearing officer shall issue an order requiring the appellant to promptly pay the civil penalty and assessed costs hereunder within thirty (30) days of the issuance of the written order. The hearing officer may assess the unsuccessful appellant the amount of the county's actual costs of enforcement and appeal.

(l)

Should the alleged violator file a notice of appeal and thereafter fail to appear at the hearing, he or she shall have waived the right to contest the notice of violation, and the hearing officer shall enter a finding that the person is in violation of this article and require payment of the penalty and assessed costs. Provided, however, that the hearing officer shall have the discretion to continue or reschedule any hearing when it determines that doing so will further the interest of justice. In such an event, notice shall be provided to the code enforcement officer and the alleged violator no later than ten (10) days before the rescheduled hearing.

(m)

If the violation occurred at the property of a customer of the Orange County Utilities Department, the department is authorized to attach any unpaid penalties and costs assessed hereunder to the customer account, payable in the monthly utility bill. Thereafter, the inclusion shall be deemed an integral part of the utility bill, payable upon the terms and conditions of any other charge in the billed account.

(n)

Penalties and costs not collected through the utility billing system may be collected in any lawful manner, pursuant to the authorities in section 37-611 of this article or otherwise.

(o)

The enforcement provisions of this section 37-611 shall be applicable only to violations of section 37-604 of this article and to none other. Provided, however, that nothing herein shall be deemed a limitation on the authority of the county to pursue any violation of section 37-604 pursuant to the authorities in section 37-610 of this article.

(p)

Appeals of determinations of the hearing officer, whether it is a first or subsequent offense, may be requested by petition of writ of certiorari to the circuit court and shall be filed within thirty (30) days of the execution of the order complained of.

(q)

The board of county commissioners shall contract with and utilize one (1) or more of the hearing officers appointed pursuant to this article to hold appeal hearings regarding notices of violation issued pursuant to section 37-604 of this article as the need arises. The clerk to such hearing officer shall be the water division manager, who shall be charged with scheduling and noticing appeals as provided herein and with maintaining all records relevant to such proceedings.

(Ord. No. 2010-02 , § 10, 2-23-10; Ord. No. 2012-08 , § 4, 4-3-12)