Chapter 17.70
ENFORCEMENT
Sections:
17.70.010 Declaration of Nuisance—Abatement.
17.70.015 Suspension of Marine Activities Permit.
17.70.020 Grounds for Revocation of Permit.
17.70.030 Impound of Vessels or Structures.
17.70.040 Abandoned Vessels or Structures.
17.70.050 Citations—Other Remedies.
17.70.010 Declaration of Nuisance—Abatement.
Any building, structure, or vessel set up, erected, constructed, altered, enlarged, converted, moved or maintained in or over the waters of Newport Harbor or the Pacific Ocean contrary to the provisions of this Code, and any use of any land, water, building or premises established, conducted, operated or maintained contrary to the provisions of this Code, shall be and the same is declared to be unlawful and a public nuisance; and the City Attorney may commence action or proceedings for the abatement and removal and enjoinment thereof in the manner provided by law, and may take such other steps and apply to such courts as may have jurisdiction to grant such relief as will abate and remove such building, structure, or vessel and restrain and enjoin any person, firm or corporation from setting up, erecting, building, maintaining, or using any such building contrary to the provisions of this Code. Pursuant to California Government Code Section 38773, all expenses incurred by the City in connection with any action to abate a public nuisance will be chargeable to the person(s) creating, causing, committing, or maintaining the public nuisance. (Ord. 2023-22 § 769, 2023; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2008-2 § 1 (part), 2008)
17.70.015 Suspension of Marine Activities Permit.
In addition to any fine or penalty that may be imposed pursuant to any provision of this Code, a marine activities permit issued pursuant to Chapter 17.10 (Marine Activities Permit) may be suspended as provided in this section.
A. Suspensions. If any person violates any condition of the marine activities permit two or more times in any twelve (12) month period or any other provision of this Code, State or Federal law, two or more times in any twelve (12) month period, and the violation relates in any way to a condition of the marine activities permit, the permit may be suspended for a period of up to six months in accordance with subsection (B) of this section.
B. Procedure for Suspension. Permits shall be suspended in the manner provided herein.
1. The Harbormaster shall investigate whenever he or she has reason to believe that a marine activities permit holder has submitted an application that contains false information or committed a violation of a permit condition, this Code, or State or Federal law related to a marine activities permit. Such investigation may include, but is not limited to, on-site or vessel inspections. Should the investigation reveal substantial evidence to support a finding that warrants a suspension of the marine activities permit, the Harbormaster shall issue written notice of intention to suspend the permit. The written notice shall be served on the owner in accordance with Section 1.05.030, directing the permittee to appear at the date, time and place for a hearing on the suspension of the marine activities permit. The notice shall specify the facts which, in the opinion of the Harbormaster, constitute substantial evidence to establish grounds for imposition of the suspension, and specify the proposed time the marine activities shall be suspended. At least fourteen (14) days’ notice of such hearing shall be given in accordance with Section 1.05.030 to the permittee shown on such permit, setting out the date, time and place of hearing.
2. The hearing shall be conducted according to the rules normally applicable to administrative hearings. At the hearing, a Hearing Officer will preside over the hearing, take evidence and then submit proposed findings and recommendations to the City Manager. The City Manager shall suspend the marine activities permit only upon a finding that a violation has been proven by a preponderance of the evidence, and that the suspension is consistent with the provisions of this section. If the City Manager determines there are grounds for suspension of a marine activities permit, he/she shall provide written notice of the suspension to the permittee shown on such permit, stating the grounds for the action, the length of suspension, and the effective date of the decision. The notice of decision shall be served in accordance with Section 1.05.030 within thirty (30) days of the City Manager receiving recommendations from the hearing officer. The decision of the City Manager shall be final as to the City but subject to judicial review pursuant to California Code of Civil Procedure Section 1094.5.
3. If a marine activities permit is suspended, it shall be the marine activities permit holder’s responsibility to suspend all activities related to the commercial activities during the term of the suspension.
4. After any suspension, the owner may apply for reinstatement of the marine activities permit, as provided for in Section 17.10.030, provided the owner has paid the City all amounts owed the City in accordance with this chapter and this Code. (Ord. 2023-22 § 770, 2023; Ord. 2021-3 § 4, 2021)
17.70.020 Grounds for Revocation of Permit.
A. Grounds for Revocation.
1. General Grounds for Revocation. Except as provided in subsections (A)(2) through (4) of this section, in addition to any specific grounds for revocation of a permit provided for herein, any permit heretofore or hereafter granted for any structure, work, use or activity under and pursuant to this title may be revoked upon any of the following grounds:
a. The development work, structure, use or activity has become detrimental to commerce, navigation or fishing;
b. The development work, structure, use or activity is detrimental to the use, operation or development of Newport Harbor or the Pacific Ocean;
c. The development work, structure, use or activity has become a source of pollution of Newport Harbor or the Pacific Ocean;
d. The development work, structure, use or activity does not comply with the permit or does not meet the standards adopted for such development work or structure;
e. The permittee has failed for a period of sixty (60) days to pay any rent or fee heretofore or hereafter imposed for the occupancy or use of tidelands, filled tidelands or submerged lands;
f. The development work or structure has fallen into a state of disrepair;
g. The space occupied by such work or structure is over public trust land and such space is to be devoted to a more necessary public use;
h. The permittee has breached or failed to comply with the terms or conditions contained in the permit or upon which the permit was granted or provided false or misleading information on an application for a permit or renewal thereof;
i. The development work, structure, use or activity violates the terms of the tidelands trust grants to the City; or
j. There has been a violation of any provision of this title, State or Federal law.
2. Grounds for Revocation of a Live-Aboard Permit. In addition to the grounds for revocation set forth in subsection (A)(1) of this section, any permit granted pursuant to Chapter 17.40 may be revoked upon a determination that:
a. Permittee has violated, or failed to comply with, any of the provisions or requirements of Chapter 17.40 or this title;
b. Permittee has discharged raw or treated sewage into the bay or otherwise violated the provisions of Section 17.40.100;
c. Permittee has failed to pay any fee required to be paid pursuant to the provisions of Chapter 17.40 and/or resolution of the City Council; or
d. Permittee, or any person on the vessel, has engaged in conduct which has unreasonably interfered with the health, safety, welfare, or peace of any person.
3. Grounds for Revocation of Mooring Permit. A mooring permit may be revoked upon any of the grounds set forth in subsection (A)(1) of this section or for any of the following:
a. The moored vessel or the mooring equipment has been determined to violate the applicable mooring regulations in Section 17.25.020, or any successor section, and the mooring permittee or sub-permittee has not made the necessary corrections or repairs within the time required by the Harbormaster;
b. The mooring permittee or person authorized by the mooring permittee has failed or refused to allow an inspection of the vessel to determine if it is safe, seaworthy and operable, a public nuisance, or in compliance with applicable marine sanitation device requirements including placement of a dye tablet in the marine sanitation device;
c. A person has lived aboard a vessel assigned to a mooring without a live-aboard permit, unless otherwise noted in Section 17.60.040(H); or
d. The mooring permittee has sublet their mooring in violation of this title.
4. Grounds for Revocation of a Marine Activities Permit. A marine activities permit may be revoked upon any of the grounds set forth in subsection (A)(1) of this section or for any of the following:
a. If any person violates any condition of the marine activities permit within six months of having a previously suspended marine activities permit reinstated, and the violation relates in any way to a condition of the marine activities permit;
b. If any person violates any condition of the marine activities permit three or more times in any twelve (12) month period or any other provision of this Code, State or Federal law, three or more times in any twelve (12) month period, and the violation relates in any way to a condition of the marine activities permit.
B. Notice and Hearing.
1. General Notice and Hearing Procedures. Except as provided in this title or subsections (B)(2) and (3) of this section, any revocation shall require a public hearing before the Harbor Commission at which the permittee has an opportunity to be heard.
a. At least fourteen (14) days’ notice of such hearing shall be given in accordance with Section 1.05.030 to the permittee shown on such permit, setting out the date, time and place of hearing, and specifying the facts which constitute the grounds for revocation.
b. The Harbor Commission shall preside over the hearing. The Harbor Commission may continue a hearing from time to time and request additional information from city staff or the permittee before rendering its decision. The permittee’s nonappearance at the hearing shall constitute a failure to exhaust his or her administrative remedies.
c. At the hearing, the permittee shall be given the opportunity to testify and present evidence and shall raise any and all legal and factual issues concerning the determination under this section. The hearing need not be conducted in accordance with the technical rules of evidence and any relevant evidence may be admitted.
2. Procedure for Revocation of Live-Aboard Permits. If the Harbormaster determines there are grounds for revocation of a live-aboard permit as provided in subsection (A)(2) of this section, he or she shall provide written notice of revocation with service of the notice in accordance with Section 1.05.030, stating the grounds for the action, the effective date of the decision and the right of the permittee to appeal the decision to the Harbor Commission. The permittee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing.
If the permittee does not request a hearing within fourteen (14) days of the date the notice is deemed served, the decision of the Harbormaster shall be final.
3. Procedure for Revocation of Mooring Permits. If the Harbormaster determines there are grounds for revocation of a mooring permit as provided in subsection (A)(3) of this section, he/she shall provide written notice of the revocation with service of the notice in accordance with Section 1.05.030 to the permittee shown on such permit, stating the grounds for the action, the effective date of the decision and the right of the permittee to appeal the decision to the Harbor Commission. The permittee shall have fourteen (14) days from the date on which notice is deemed served to request a hearing.
If the permittee does not request a hearing within fourteen (14) days of the date the notice is deemed served, the decision of the Harbormaster shall be final.
C. Decision and Notice. Within a reasonable time of the conclusion of any revocation hearing before the Harbor Commission, the Harbor Commission shall render a decision. The City Clerk shall notify the permittee or applicant of the decision of the Harbor Commission and serve the notice in accordance with Section 1.05.030.
D. Effective Date. Except as provided in subsections (B)(2) and (3) of this section, the decision to revoke a permit shall become final once the time period for an appeal or call for review has expired. (Ord. 2023-22 § 780, 2023; Ord. 2021-3 §§ 5, 6, 2021; Ord. 2020-5 § 1 (Exh. 1) (part), 2020: Ord. 2015-9 §§ 37, 38, 2015; Ord. 2013-1 § 12, 2013; Ord. 2008-2 § 1 (part), 2008)
17.70.030 Impound of Vessels or Structures.
The Harbormaster may authorize the impound of a vessel or structure located in or over the waters of Newport Harbor or the Pacific Ocean under any of the following circumstances:
A. Unless otherwise permitted under this title, the vessel or structure is attached to a mooring that is not the vessel or structure identified on the mooring permit.
B. An unpermitted vessel or structure is attached to a public mooring, dock, or slip.
C. A vessel or structure is in violation of the anchorage or berthing requirements of this title.
D. The vessel or structure is left unattended and is moored, docked, beached, or made fast to land in a position that obstructs the normal movement of traffic or in a condition that creates a hazard to other vessels using the waterway, to public safety, or to the property of another.
E. The vessel or structure interferes with, or otherwise poses a danger to, navigation or to the public health, safety, or welfare.
F. The vessel or structure poses a threat to adjacent wetlands, levees, sensitive habitat, any protected wildlife species, or water quality.
G. A vessel or structure is found or operated upon a waterway with a registration expiration date in excess of one year before the date on which it is found or operated on the waterway.
H. The vessel or mooring permittee does not have proper insurance or owes a debt to the City.
I. Federal or State law permits the City or any peace officer, lifeguard, or marine safety officer employed by the City to remove, and, if necessary, store a vessel removed from a public waterway.
The City may charge or bring action in the courts of this state to recover any costs pursuant to impounding a vessel or structure. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020)
17.70.040 Abandoned Vessels or Structures.
Any vessel or structure that has been impounded pursuant to Section 17.70.030 that has not been claimed by the owner, or has been claimed by the owner and the owner has not paid the impound fees owed to the City for a period in excess of thirty (30) days, shall be deemed abandoned and may be disposed of by the City in any manner prescribed by law. (Ord. 2020-5 § 1 (Exh. 1) (part), 2020)
17.70.050 Citations—Other Remedies.
A. The owner of a vessel deemed abandoned under Section 17.70.040 may be issued an administrative citation and assessed an administrative fine of one thousand dollars ($1,000.00).
B. Notwithstanding the specific enforcement remedies referenced herein, the City may undertake other enforcement action as provided in this Code, State or Federal law to enforce the provisions of this title. (Ord. 2022-9 § 10, 2022; Ord. 2020-5 § 1 (Exh. 1) (part), 2020)