15.78.090 Violation/penalty.
A. Violation Defined. It is a violation of this chapter to commence grading or urban development on a property subject to the H.M.F. and process without receiving final grading plan approval from the city of Bakersfield.
B. Violator Defined. Violator means the property owner and, if the city can locate them, any person(s), company, companies, entity or entities (i.e., grading company, engineer, contractor, developer) that is responsible for and/or physically carrying out the act of grading on the site.
C. Hearing Process. Upon discovery of an alleged violation, the city shall issue a stop work order on the entire project in question. The stop work order will be effective immediately and the department head/director designated by the city manager shall hold a hearing at the time and place designated in the stop work order, no sooner than ten days and no later than thirty days from the date of the stop work order, and shall receive all evidence presented on the issues of whether a violation had taken place and the severity of the violation. The city shall cause to be mailed by registered or certified mail, postage prepaid, return receipt requested, with proof of service, a copy of the stop work order to the owner of real property on which the violation exists.
1. The department head or their designee shall act in the capacity of administrative hearing officers (“hearing officer(s)” hereafter) and shall have the authority to receive all relevant evidence, swear witnesses, question witnesses, demand the production of documents and witnesses, and otherwise do all things necessary and proper to reach an informed decision upon the existence of a violation and the severity of such if appropriate. All testimony shall be taken under oath or affirmation or by sworn affidavit or declaration executed under penalty of perjury. The hearing officer(s) may consider all other issues relevant and reasonably necessary to reach the ultimate issues of the existence of a violation and the severity of such if appropriate.
2. The burden shall be upon the city to show the existence of any and all violations as noticed, and the severity of such if appropriate, by a preponderance of the evidence presented at the hearing. Only relevant evidence properly produced at the hearing may be considered by the hearing officer(s) in reaching a decision.
3. The hearing officer(s) shall cause the hearing to be tape recorded. Transcripts may be created at the expense of the person requesting the transcript.
D. Order after Hearing.
1. After the conclusion of the hearing, the hearing officer(s) shall render a decision within five working days on the existence of a violation and what penalties shall ensue. If a violation is found not to exist, the hearing officer(s) shall so notify in writing all persons who originally received notice; or, if such violation is found to exist, shall issue a written notice and order directing the existence of the violation, the severity of the violation and the fine imposed. The fine may include administrative costs in addition to an amount not to exceed three times the amount of the H.M.F. for the project in question. The amount of the fine (except for administrative costs) shall be deposited in the MBHCP trust fund and must be paid within thirty days of the hearing. Furthermore, the stop work order shall remain in effect until all of the conditions outlined in the order after the hearings are complied with and the violator is responsible for all associated costs of compliance.
2. Except as provided in this section, after a decision by the hearing officer(s), any person subject to an order declaring the existence of a violation and a fine resulting therefrom may appeal the decision of the hearing officer to the city manager by filing a written request with the city clerk within ten days from the date appearing on the order declaring a violation to exist. The cost of appeal must be paid at the time the request for appeal is filed.
3. The stop work order shall remain in effect until either the decision declares a violation does not exist or the fine stemming from the finding of a violation is paid.
E. Criminal Violations—Misdemeanors and Infractions. Except as provided herein, any person, firm or corporation convicted of violating any of the provisions of this chapter, or for failing to comply with any notice or order given pursuant to this chapter, shall be subject to a fine of not more than five hundred dollars or by imprisonment in the County Jail for a period of not more than six months, or by both such fine and imprisonment.
Each such person, firm or corporation shall be charged with a separate offense for each and every day during any portion of which any violation of any provision of this chapter is committed, continued or permitted by such person and shall, upon conviction, be punished accordingly. (Ord. 4908 § 1, 2017; Ord. 4701 § 1, 2012; Ord. 4470 § 3, 2007)