Ord 778ORDINANCE NO. 778
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF POWAY,
CALIFORNIA, ESTABLISHING CONSERVATION ENFORCEMENT
MEASURES FOR WATER CUSTOMERS; ESTABLISHING WATER
ALLOCATION AND BASE USAGE CRITERIA; AND PROVIDING FOR
FINES AND PENALTIES FOR WATER CUSTOMERS EXCEEDING
WATER ALLOCATIONS OR BASE LEVEL USAGE
WHEREAS, the City Council of the city of Poway (the "City Council ") recognizes
that there is a need to develop alternative methods of encouraging water conservation
to better ensure a reliable source of potable and raw water for its residents and
customers, while at the same time finding ways to maintain sufficient revenues for the
efficient and economical operation of the City of Poway's water enterprise; and
WHEREAS, the City of Poway (the "City ") has previously adopted Chapter 8.94
( "Chapter 8.94 ") of the Poway Municipal Code (the "Code "), with the intent of
encouraging water use efficiency and conservation by its customers in the form of
conservation and end use efficiency incentive measures through various options,
primarily but not exclusively during times of extreme drought conditions; and
WHEREAS, the conservation and end use efficiency incentive measures do not
include incentives such as fines and penalties for excessive use of water by the City's
customers, relying instead upon voluntary efforts of the customers at the risk of
consumption that would result in the incurrence of established "blocks" of rates charged
to its customers, which methods may not be the most effective measure for encouraging
conservation and protecting against excessive consumption of potable water in unusual
or extreme cases such as severe drought or sudden water enterprise infrastructure
failures; and
WHEREAS, the City Council has determined that additional alternative measures
are required in order to enhance efforts to encourage water conservation and
investments in end use efficiency on the part of the City's water utility customers, which
alternative methods include the imposition of administrative fines and penalties for water
utility customers exceeding an adopted base usage measurement of water consumed
by each customer class during a billing cycle; and
WHEREAS, in order to establish conservation goals and administrative fines and
penalties the City Council must first establish them by ordinance.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF POWAY DOES ORDAIN
AS FOLLOWS:
Section 1: Chapter 8.96 is hereby added to Title 8 of the Poway Municipal
Code to read as follows:
Ordinance No. 778
Page 2
8.96.010 Purpose.
The purpose of this Chapter is to establish the framework for identifiable
administrative fines and penalties that may be imposed by the City for customers of the
City's water services whose consumption of water exceeds the amount allocated by the
City Council for the billing cycle being charged. Fines and penalties collected may be
used for any governmental purpose of the City; however, it is the intent of this chapter
that the use of the fines and penalties collected should be the initial source of revenues
to address State or regional water conservation mandates and directives.
The imposition of the administrative fines and penalties are subject to those
procedures established by Chapter 1.10, as amended from time to time, except as
supplemented in this Chapter. The amount of administrative fines and penalties shall
not exceed the amounts set forth in this Chapter, but because the City experiences
varying degrees of water supply restrictions (due to, adversely, sustained drought
conditions or, favorably, improvements in the supply of potable water as a result of
successful conservation efforts and other conditions) they shall be based upon a
determination of allocation or base level usage as set by resolution of the City Council
from time to time and consistent with this Chapter.
8.96.020 Definitions.
In addition to those terms previously defined in this Chapter, for the purposes of
this Chapter, and for the purpose of any resolution to implement this Chapter, the
following definitions shall apply:
A. Administrative fine; administrative penalty. A fine or penalty imposed on
the responsible party as an incentive measure, and as permitted by this ordinance, for
water usage above the customer's water allocation, in the amount as may be adopted
by the City Council by resolution.
B. Administrative review. The procedures for imposing administrative fines
and penalties as set forth in Chapter 1.10. Administrative review includes all
procedures involving the appeal of the administrative fines or penalties charged, but
shall not include any judicial review of a final decision.
C. Allocation; water allocation. The amount by which a customer shall be
limited in its use of raw, potable, or reclaimed water during any billing cycle, as
determined by resolution of the City Council.
D. Base level usage. An amount of water that is fixed by resolution of the
City Council to be an allowable amount to be consumed by single - family or multi - family
residential customers during any billing cycle and below which conservation is not
required.
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E. Billing cycle. The period of time that water is delivered to a customer
through the City's water facilities. The billing cycle may be monthly, bi- monthly, or
whatever period of time is established between the City and the customer by
agreement. The billing cycle may be prorated based on the date of the opening or
closing of account, including upon the termination of services following a "shut off"
notice issued by the City.
F. Conservation. Conservation refers to a temporary change in behavior of
how water is used due to water use restrictions. Water use restrictions are often
imposed due to a drought or other type of emergency that temporarily constrains supply
availability.
G. Customer. The party responsible (whether person, persons, or entity) for
the payment of charges for water delivered by the City to the residence, business, or
property. The customer does not need to own the property where the water is
delivered.
H. End use efficiency. End use water efficiency focuses on reducing water
waste, not just restricting its use to establish conservation. For example, not flushing the
toilet as often would be considered water conservation; replacing a 3.5 gallon /flush toilet
with a 1.28 gallon /flush toilet would be considered water end use efficiency.
I. Enforcement officer. The City Manager, the Assistant City Manager, the
Director of Public Works, and the Director of Administrative Services, or any other
person authorized by the City Manager to enforce the provisions of any City ordinance.
J. Incentive measures. Incentive measures refer to policies that use
economic penalties and /or economic benefits to encourage water users to make
decisions sooner rather than later to invest in end use efficiency methods and /or to
restrict current water use.
K. Responsible party; party responsible. The customer, the property owner (if
either arrangements are made between the property owner and the City, or if by law,
allowing a lien to attach to the property), or such persons responsible for payment of
water charges for the account.
L. Unit of water. A unit of water is the equivalent of 748 gallons or 100 cubic
feet (HCF).
M. Variance. An exception to the allocated amount of water that may be
consumed by a customer without incurring an administrative fine or penalty due to
circumstances specifically related to the proper sanitation measures required in the
home, for the health of either persons residing in the home or benefit from the daytime
care of children or adults, although who are not residents. A variance may be limited in
amount and in time, and is granted on a case -by -case basis.
Ordinance No. 778
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8.96.030 Establishment of allocations and base level usage.
A. Pursuant to this Chapter and Chapter 8.94 of the Poway Municipal Code,
the City Council may, by resolution, establish a water allocation for each property
served by the City. The City Council may also establish base level usage for single -
family and multi - family residential customers by resolution.
B. If the City establishes water allocation amounts or base level usage
amounts, it shall provide notice of the allocation or base level usage by including it in
the regular billing statement for the fee or charge or by any other mailing to the address
to which the City customarily mails the billing statement for fees or charges for on -going
water service.
C. Following the effective date of the water allocation or base level amounts
any customer using water in excess of the allocation applicable to the property, and
which also exceeds the base level applicable to that customer, shall be subject to a
penalty for each billing unit of water in excess of the allocation or the base level,
whichever is greater.
D. The penalty for excess water usage shall be cumulative to any other
remedy or fee that may be imposed for violation of this Chapter or Chapter 8.94.
8.96.040 Establishment of administrative fines and penalties.
A. It is a violation for any City water customer to use, and it is a violation for
any responsible party to allow to be used, more than the water allocation and base level
usage of water (as may be adjusted by an approved variance) for any billing cycle on
any account. Any customer whose use exceeds the water allocation and base level
usage of water (as may be adjusted by an approved variance) shall be subject to an
administrative fine or administrative penalty that shall be set by a resolution of the City
Council from time to time for excess of the water allocation and base level usage that is
in effect at the time of the violation.
B. Fines and penalties, if any, shall be in addition to water service fees the
City imposes for water delivered to the meter.
C. No administrative fine or administrative penalty shall exceed one hundred
percent (100 %) of the amount of the volumetric water charges for the billing cycle on the
account for which the customer or the responsible party is determined in violation of this
Chapter.
8.96.050 Charge of administrative fines and penalties.
Upon a determination that an administrative fine or penalty is chargeable by this
Chapter the enforcement officer shall determine the amount, charge it to the customer's
Ordinance No. 778
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account as a special charge, and include the fine or penalty on the customer's bill for
the billing cycle in which the fine or penalty was incurred, all in accordance with Chapter
13.11. Receipt of a water bill with any administrative fine or penalty shall serve as
notice of violation of the City's rules and regulations herein.
8.96.060 Administrative review of administrative fines and penalties.
A. Any customer who wishes to appeal the imposition of an administrative
penalty or fine imposed by the City under this Chapter shall comply with the following
procedures:
1. The customer shall pay all amounts due and owing on his or her water bill,
except for any disputed penalty(ies) imposed by the City pursuant to this Chapter
to avoid interruption in service.
2. The customer shall submit an appeal request form to the Director of
Administrative Services no later than fifteen (15) calendar days from the date that
the customer's water bill for the billing cycle in which any penalty imposed is due.
B. An appeal may be granted under the following limited circumstances:
1. The amount of water delivered to the customer's property did not violate
the water allocation, as evidenced by a demonstrable malfunction in the meter
serving the customer's property or a billing error by the City.
2. The customer demonstrates the water use is in accordance with a
previously granted variance or, if the customer had not previously applied for a
variance, that the use is in accordance with a subsequently approved variance
applied for within ten (10) days following the billing date.
3. The customer demonstrates an undetected water leak occurred at his or
her property during the billing cycle in which the penalty was imposed, resulting
in water loss that did not benefit the customer, and notifies the City of such leak
at least five days prior to the bill due date, and demonstrates that the leak has
been repaired.
C. The City shall respond to the appeal request within thirty (30) calendar
days from receipt of the appeal request form.
D. The decision of the Director of Administrative Services shall be final.
E. If the appeal is not granted, the customer shall pay all the disputed
penalties within ten (10) days of the date that the decision is mailed to the customer.
F. Legal action must be commenced in accordance with Government Code
section 53069.4(b) by filing a petition with the Superior Court within twenty (20) days of
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the date that the final decision of the Director of Administrative Services is served on the
customer.
8.96.070 Failure to pay administrative fines or penalties.
Non- payment of any penalty or fine imposed pursuant to this Chapter shall be
subject to the same remedies available to the City as for non - payment of basic water
rates. Any administrative fines or penalties not paid, or not credited following any
administrative review of the charge, shall continue to be charged to the responsible
party until paid. No interest on the unpaid fines or penalties shall apply during any
period of administrative review by the City. Upon a final determination of the amount of
the fines or penalties, payments on any account shall first be applied to the
administrative fines or penalties outstanding, in the order by which they were first
charged, and the balance of any payment, following the full payment of fines and
penalties, shall be applied to the outstanding balance of the customer's account.
8.96.080 Initiation and termination of water allocation; administrative fines or
penalties.
The City Council may initiate the implementation of water allocations or base
level usage regulation from time to time by resolution. After implementation of water
allocations or base level usage is initiated pursuant to this section, the City Council can,
at any time, by resolution, terminate the implementation and cease imposing
administrative fines or penalties for violation of this Chapter.
8.96.090 Water usage data.
The City Council hereby determines that the public interest in providing water usage
data to a customer for their property address clearly outweighs the public interest in not
providing the information, when such information is for the purpose of allowing a
customer to more accurately evaluate their water allocation, or for the purposes of
appealing any administrative fine or penalty. Therefore the City Council hereby
approves the release of any water usage data of a former customer at the property
address of a current customer, section 6254.16 of the California Government Code
notwithstanding.
EFFECTIVE DATE: This ordinance shall be effective thirty (30) days following its
passage and adoption.
CERTIFICATION /PUBLICATION: The City Clerk shall certify the adoption of this
Ordinance and cause it or a summary of it, to be published with the names of the City
Council members voting for and against the same in the Poway News Chieftain, a
newspaper of general circulation in the City of Poway within fifteen (15) days after its
adoption and shall post a certified copy of this Ordinance in the Office of the City Clerk
in accordance with Government Code § 36933.
Ordinance No. 778
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Introduced and first read at a Regular Meeting of the City Council of the City of
Poway held the 15th day of September 2015, and thereafter PASSED AND ADOPTED
at a regular meeting of said City Council held the 6th day of October 2015.
Steve Vaus, Mayor
ATTEST:
Sheila . Cobian, C C, City Clerk
STATE OF CALIFORNIA )
) SS
COUNTY OF SAN DIEGO)
I, Sheila R. Cobian, City Clerk, of the City of Poway, do hereby certify that the
foregoing Ordinance No. 778, was duly adopted by the City Council at a regular meeting
of said City Council held on the 6th day of October 2015, and that it was so adopted by
the following vote:
AYES: LEONARD, CUNNINGHAM, MULLIN, GROSCH, VAUS
NOES: NONE
ABSENT: NONE
DISQUALIFIED: NONE
i
Sheila . Cobian, CIVIC, City Clerk
City of Poway