§ 37-749. Enforcement procedures.

(a)

General. The following are the procedures set out along with the county's enforcement response plan (ERP), approved by county resolution. These procedures are the framework for enforcement, provided to ensure consistent enforcement against all respondents, to provide them with notice, a fair hearing and to maximize due process for all similarly situated respondents, and eliminate any likelihood for unjust discrimination. The subsections set forth below underlie and provide the source to which the county's ERP shall be cross-referenced. Both enforcement officials and respondents should refer to these article subsections for the underlying law, for purposes of interpretation of the more articulated and detailed county ERP, and for determination of the county's intent. The various provisions of this article which might be violated are quite broad, extremely technical and arcane. Therefore, the county's ERP is intended to provide the practical reference manual for an enforcement official or respondent for the correct enforcement procedure in a given case, in support of, but not in conflict with, the sections below. Thus, the primary and fundamental rules are as follows:

(1)

Any person found to be violating any provision of this article, county local limits as specified and established by county resolution, and any of the orders, rules, regulations, and permits issued hereunder, shall be served by the county with written notice via personal delivery by an authorized county employee or registered/certified mail (return receipt requested), by publication, or by other legally permissible means, that states the nature of the violation and providing a reasonable time limit for the satisfactory correction of the violation. The offender shall permanently cease all violations within the period of time stated in such notice.

(2)

If the discharge from any user causes a deposit, obstruction, process upset or damage to the county WWF or a portion thereof, then the director shall cause the deposit or obstruction to be promptly removed, or cause the damage to be promptly repaired, at the sole cost of the person or user causing such deposit, obstruction, or damage to the county WWF.

(3)

The remedies provided in this article shall not be exclusive, and the county may seek whatever other remedies are authorized by statute, at law or in equity, against any person or user violating the provisions of this article.

(4)

In addition to any fine or penalty levied under this article or the county's ERP, the county may, where the circumstances of the particular case so dictate, but in any event in the sole discretion of the county, seek injunctive relief to prohibit the user from discharging any wastewater into the county WWF, or to provide such other affirmative relief as may be appropriate.

(5)

Notwithstanding any other fine or penalty as detailed in this article or the county's ERP, any person or user who violates any provision of this article also may be subject to the provisions of other county ordinances.

(b)

Notification of violation. When the director finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, waste hauler operating permit or order issued hereunder, or any other pretreatment standard or requirement, the director may serve upon that user a written notice of violation informing the user that said user has violated the provisions of this article, including, but not limited to, pretreatment standards for industrial users. Aside from emergent circumstances more specifically set forth elsewhere herein, and in the county's ERP, the respondent user shall reply to the director as follows: Within the period (in days) specified by the control authority, ten (10) days of the receipt of the notice of violation, an explanation of the violation and a plan for the satisfactory correction and prevention thereof, to include specific required actions, shall be submitted by the user to the director. Submission of this plan in no way relieves the user of liability for any violations occurring before or after receipt of the notice of violation. Further, if emergent circumstances require a more expedited response, immediate action or both, (or the specific nature of the violation require such, as shown in the county's ERP), by the respondent, nothing herein shall restrict the director from requiring by special notice, an appropriate, reasonable, but shorter period for response. Failure by a person to respond within the time frames set forth herein, shall be a basis for the director taking immediate action on the violation(s). Nothing in this section shall limit the authority of the director to take any action, including emergency actions or any other enforcement action, without first issuing a notice of violation. Requirements for a response to a notice of violation in less than thirty (30) days from the date of service of the notice shall not affect the time frame for waiver of requests for hearing or appeal of the notice, which shall be thirty (30) days from service, unless an obvious and unmistakable notice of a lesser time is placed in the notice.

(c)

Consent orders. The director may enter into consent orders, accept written assurances of voluntary compliance, or other similar documents establishing a legally enforceable agreement between the county and the user that is designed to restore the user responsible for the noncompliance to compliant status. Such documents shall include specific action to be taken by the user to correct the noncompliance within a time period specified by the document. Such documents shall have the same force and effect as the compliance orders and cease and desist orders issued pursuant to sections 37-749(e) and 37-749(f), respectively, of this article and the county's ERP, adopted by resolution and shall be judicially enforceable.

(d)

Show cause order; show cause meeting.

(1)

The director may order a user who has violated, or continues to violate any provision of this article, an industrial wastewater discharge permit, a waste hauler operating permit, or any order issued hereunder, or any other pretreatment standard or requirement, to appear before the director and show cause why the proposed enforcement action should not be taken. Notice in the show cause order shall be served on the user specifying the time for the show cause meeting, the proposed enforcement action, the reasons for such action, and a statement directing the user to show cause why the proposed enforcement action should not be taken. The show cause order and notice of the meeting shall be served personally or by registered/certified mail (return receipt requested) or by any other lawful means, at least ten (10) days prior to the meeting. Such notice may be served upon any authorized representative of the user.

(2)

A show cause meeting shall not preclude, or be a prerequisite for, taking any other action against the user.

(e)

Compliance orders. When the director finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, waste hauler operating permit or order issued hereunder, or any other pretreatment standard or requirement, the director may issue an order to the user responsible for the discharge directing that the user come into compliance within a specified period of time. If the user does not come into compliance within the time period provided, wastewater service may be discontinued by the director, unless adequate treatment facilities, devices, or other related appurtenances are installed and properly operated. Compliance orders also may contain other requirements to address the noncompliance, including additional self-monitoring and management practices designed to minimize the amount of pollutants discharged to the sewer. A compliance order may not extend the deadline for compliance established for a pretreatment standard or requirement, nor does a compliance order relieve the user of liability for any violation, including any continuing violation. Issuance of a compliance order shall not preclude or be a prerequisite for, taking any other action against the user.

(f)

Cease and desist orders.

(1)

When the director finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, waste hauler operating permit or order issued hereunder, or any other pretreatment standard or requirement, or that the user's past violations are likely to recur, the director may issue an order to the user directing it to cease and desist all such discharges and/or violations and directing the user to:

a.

Immediately comply with all requirements; and

b.

Take such appropriate remedial or preventive action as may be needed to properly address a continuing or threatened violation, including halting operations and/or terminating the discharge.

(2)

Issuance of a cease and desist order shall not be a bar against, or a prerequisite for, taking any other action against the user.

(g)

Fines and penalties assessed by the county.

(1)

When the director finds that a user has violated, or continues to violate, any provision of this article, an industrial wastewater discharge permit, or waste hauler operating permit, or order issued hereunder, or any other pretreatment standard or requirement, the director may fine such user in an amount described in the county's ERP, with the minimum fine amount of one thousand dollars ($1,000.00) per violation, per day to be assessed by the county, pursuant to 40 CFR Part 403.8(f)(1), Chapter I, Subchapter N, F.S. § 125.69 and Chapter 62-625.500(2)(A)5.a., F.A.C., and shall not exceed the limits per day set forth below in this section. Such fines shall be assessed on a per violation, per day basis, but shall not require a separate inspection each day of the continued violation for the purpose of ascertaining compliance or continued violation. Instead, after a notice of the violation, it shall be the burden of the respondent to abate the violation, and call for an inspection by the appropriate county code enforcement compliance officer to confirm compliance, and in the meantime, the violation will be considered as ongoing until the official files a notice with the director or other appropriate official that the violation has been abated. In the case of any continuing violation not having been shown to have been abated, including but not limited to, monthly or other long-term average local limits, State of Florida standards and/or federal categorical pretreatment standards, fines shall be assessed for each day during the period of violation.

(2)

Penalties may be assessed for each occurrence, each twenty-four-hour period and for each prohibited discharge exceedence of a federal categorical pretreatment standard, state standard or county local limit referenced or set forth in sections 37-735 through 37-737 of this article or county local limit established by county resolution, or other performance and discharge standards elsewhere in this article.

(3)

Unpaid charges, fines, and penalties shall, after thirty (30) calendar days, be considered delinquent and shall be assessed interest which shall accrue at a rate determined by the director. A lien against the user's property shall be sought for unpaid charges, fines, and penalties.

(4)

Users desiring to dispute the amount of such fines must file a written request for the director to reconsider the fine along with full payment of the fine amount within ten (10) days of being notified of the fine. The request must include a non-refundable violation appeals process charge in accordance with section 37-709, and fees established by county resolution. Where a request has merit, the director may convene a meeting on the matter. In the event the user's request for reconsideration is successful, the payment of the applicable portion of the fine, together with any interest accruing thereto, shall be returned to the user. The director may seek reimbursement of all prosecutorial costs including, but not limited to, the costs of preparing enforcement actions, such as notices and orders, laboratory costs, consultant's fees, sampling and inspection expenses, and assess these costs directly to the user. The provisions of this section shall apply only to the amount of such fine, and shall not substitute for the appeal provisions related to the correctness, appropriateness, accuracy or legality of the underlying charge itself.

(5)

Imposition of a fine shall not preclude, or be a prerequisite for, taking any other action against the user.

(6)

The county's ERP shall be established in accordance with Section 62-625.500, F.A.C., and will be, procedurally, established by way of resolution. The penalty tables and provisions set out currently in this article will be repealed on the date the initial resolution establishing the new ERP goes into effect. The county's ERP shall contain at a minimum: methods of investigating noncompliance, identify personnel responsible for enforcement, describe the types of escalating enforcement responses, time frame for responses, enforcement tools, tracking, and follow-up, and an enforcement response guide inclusive of the penalty matrix. The county's ERP shall be established at a public hearing at which all the users and all others interested shall have an opportunity to be heard concerning the proposed county ERP. Notice of such public hearing setting forth the proposed schedule or schedules of the county's ERP shall be given by one (1) publication in a newspaper published in the county at least ten (10) days before the date fixed in such notice for the hearing, which may be adjourned from time to time. After such hearing, such schedule or schedules shall be kept on file in the office of the director and shall be open at all times to public inspection. The county's ERP may be revised from time to time in the same manner as the county's ERP was originally established. In addition to the administrative fines and penalties established by the county within the county's ERP, additional enforcement action may be imposed by the director in accordance with sections 37-749 through 37-751 of this article. In the meantime, prior to the establishment of such county ERP, the director and his delegates may enforce this article under the general provisions herein, using reasonable provisions for providing notice, according due process and allowing full opportunity to the respondents to be heard and defend, where necessary. Currently, utilized penalty tables and other mechanisms necessary to avoid the possibility of arbitrary imposition or unfair or disproportionate penalties shall continue until the county's ERP has been finalized.

(h)

Emergency suspensions.

(1)

The director may immediately suspend a user's discharge, after written/verbal notice to the user, whenever such suspension is necessary to stop an actual or threatened discharge which reasonably appears to present or cause an imminent or substantial endangerment to the county wastewater system, environment, or to the health, safety, or welfare of the general public or county personnel. The director also may immediately suspend a user's discharge, after written/verbal notice and an opportunity for the user to respond, that threatens to interfere with the operation of the county wastewater system, or which presents, or may present, an endangerment to the environment or the health and safety of the general public or county personnel.

(2)

Any user notified of a suspension of its discharge shall immediately stop or eliminate its contribution to the county wastewater system. In the event of a user's failure to immediately comply voluntarily with the suspension order, the director may take such steps as deemed necessary, including immediate severance of the sewer connection or public water supply, to prevent or minimize damage to the county wastewater system, the environment, or endangerment to any individuals. The director may allow the user to recommence its discharge when the user has demonstrated to the satisfaction of the director that the period of endangerment has passed, unless the termination proceedings in section 37-749(i) of this article have been initiated against the user.

(3)

A user that is responsible, in whole or in part, for any discharge presenting imminent endangerment to the county wastewater system, the environment, general public or county personnel shall submit a detailed written statement, describing the causes of the harmful contribution and the measures taken to prevent any future occurrence, to the director prior to the date of any show cause meeting or termination hearing under sections 37-749(d) or 37-749(i) of this article.

(4)

Nothing in this section shall be interpreted as requiring a meeting or a hearing prior to any emergency suspension pursuant to this section or the county's ERP.

(i)

Termination of discharge.

(1)

In addition to the provisions of section 37-747(f) of this article, any user who violates any of the following conditions is subject to discharge termination:

a.

Violation of industrial wastewater discharge permit or waste haulers operating permit conditions;

b.

Failure to accurately report the wastewater constituents, flow volumes and characteristics of its discharge;

c.

Failure to report significant changes in operations or wastewater volume, constituents, and characteristics prior to discharge;

d.

Refusal of reasonable access to the user's premises for the purpose of inspection, monitoring, or sampling; or

e.

Violation of the discharge standards in sections 37-735 through 37-737 or section 37-756 of this article, or county local limits established by county resolution.

(2)

In situations that do not constitute an immediate danger to the WWF or the public health, then the user shall receive written notification of the proposed termination of its discharge and shall be offered an opportunity to show cause under section 37-749(d) of this article why the proposed termination of discharge should not be taken. Exercise of this option by the director shall not be a bar to, or a prerequisite for, taking any other action against the user.

(3)

The county reserves the right, at the discretion of the director, to either plug the sewer lateral to terminate the discharge or to sever water service to prevent discharges to the county wastewater system. Other appropriate regulatory agencies may be notified by the director of the enforcement action(s) taken by the county.

(j)

Appeals. Persons aggrieved as a result of the enforcement proceedings set out herein, or by certain other determinations made by the director, shall have an opportunity to have their grievances heard by a neutral third party:

(1)

Hearing examiner. There is hereby created for the purposes of this article the position of hearing examiner. Accordingly, the board of county commissioners shall appoint, by county resolution, such hearing examiner for these duties, who shall be a member in good standing of the Florida Bar. The hearing examiner shall conduct the hearings in accordance with the rules and regulations set forth herein, and in the supplement set out in the county's ERP. The examiner's compensation, the methodology for calling up hearings before said examiner, the maximum and minimum number of hours proposed for such examiner to sit in session and prepare opinions and orders, the number of hearings per year, the hiring process to obtain the services of such examiner, shall all be determined in a county resolution approved by the board of county commissioners except that the term for the hearing examiner must not be less than one (1) year, and the examiner may not be removed during that term but for good cause shown.

(2)

Appeal procedure. Any person or user may appeal the enforcement decision, article interpretation, regulatory determination or order of the director defined herein, to that hearing examiner established above. This appeals process will be accomplished through an administrative hearing, under the procedures more specifically set forth in the county's ERP. The appeal shall relate to the following decisions about which the user is alleged to be in violation:

a.

An industrial wastewater discharge permit;

b.

A waste hauler operating permit;

c.

An enforcement order issued hereunder;

d.

Any pretreatment standard or requirement;

e.

To review a show cause order issued under this ordinance;

f.

Denial of a variance under this ordinance;

g.

Any provision of this article except as follows:

i.

The appeals procedure referenced in this article does not include appeals pursuant to division 2 of this article relating to septic tanks or package or interim treatment plants since an appeals mechanism for these issues is provided for elsewhere in this chapter; and

ii.

The appeals procedure referenced in this section are not applicable to appeals related to county surcharge program billing issues, pursuant to section 37-755(h) of this article.

Only a user directly affected by the decision or enforcement order or interpretation has standing to bring such an appeal.

(3)

The appeals hearing examiner shall not hear appeals pursuant to division 2 of this article relating to septic tanks or package or interim treatment plants since an appeals mechanism for these issues is provided for elsewhere in this ordinance. Billing issues, pursuant to section 37-755(h), are not appealable under this section.

(4)

An appeal as authorized by this section shall be instituted by filing a notice of appeal with the director within ten (10) days after the date of issuance of the written decision, interpretation or order of the director. The notice of appeal shall be filed with the director, and shall include the decision, interpretation or order being appealed and the grounds for the appeal. The decision of the director shall be complied with until the director's decision is altered, amended or reversed by the hearing examiner on appeals or a court.

(5)

After the date that the notice of appeal is filed with the director, the director shall schedule a hearing date before the hearing examiner for the purpose of considering the appeal, based upon the grounds set forth in the notice of appeal and this ordinance. The hearing may be continued by the clerk or chairperson of the appeals board on their own motion, or at the request of the director or the appealing party. A notice of the hearing scheduled to consider the appeal shall be provided to the person filing the appeal, by hand delivery or by certified mail setting forth the time and place of the hearing and providing notification that, should any person decide to appeal the decision of the hearing examiner, a verbatim record may be necessary, and the appellant shall make arrangements for securing such a transcript. The hearing notice shall include, but not be limited to, the information required in the county's ERP, and the following:

(6)

Hearing on appeal. All of the requirements necessary for due process, and necessary for determination and disposition of the appeal, including, but not limited to, verification of jurisdiction, consideration of evidence, testimony (which shall be under oath), argument presented, affirmance, modification or reversal of the decision, interpretation or order of the director, shall be made by the hearing examiner. Any such decision shall be in writing, setting forth findings of fact and conclusions. Neither the Florida Evidence Code nor the Florida Rules of Civil Procedure shall apply, but the hearing shall otherwise comply with the requirements of due process. Refer to the county's ERP for more detailed rules and procedures for the hearing on appeal.

(7)

The board of county commissioners shall provide clerical and administrative personnel as may be reasonably required.

(8)

The order by the hearing officer must include a statement that any person aggrieved by the order who was a party before the hearing officer may appeal, in accordance with the procedures shown in this chapter, and in the county's ERP.

(9)

If an order is recorded in the public records pursuant to this section, the hearing officer may issue an order setting aside or withdrawing it, for good cause shown, recording it in the public records.

(10)

A hearing is not required to issue an order withdrawing or setting aside such order.

(11)

The director or the appealing party may challenge the hearing officer's decision hereunder by filing a petition for writ of certiorari in the circuit court of the county within thirty (30) days of the forum's written decision.

(12)

Refusals to comply or appeal or both combined may be dealt with by the director as shown herein and as shown in the county's ERP.

(Ord. No. 2002-20, § 1, 12-3-02; Ord. No. 2009-19 , § 6, 7-14-09)