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HomeMy WebLinkAbout1501 TRUXTUN AVENUE (3)STATE OF CALIFORNIA CITY OF BAKERSFIELD FIRE DEPARTMENT / PREVENTION SERVICES DIVISION In the Matter of: FRESH DOUGHNUT Bakersfield Business License No. 65103 Respondent. TO THE ABOVE RESPONDENT: Docket No.: 2006 -26 STATEMENT TO RESPONDENT Enforcement Order An Enforcement Order ( "Order") is attached to this statement and is hereby served upon you. The Order has been filed by the City of Bakersfield Fire Department — Prevention Services Division (BFD -PSD). Unless a written request for a hearing signed by you or on your behalf is delivered or mailed to the BFD -PSD within fifteen (15) days after you have received a copy of the Order, you will be deemed to have waived your right to a hearing in this matter. If you do not file a timely hearing request, the Order becomes final automatically. The request for a hearing may be made by delivering or mailing one copy of the enclosed form entitled "Notice of Defense" or by delivering or mailing a Notice of Defense as provided in Section 11506 of the Government Code to: Ms. Janice Scanlan Deputy City Attorney City Attorney's Office City of Bakersfield 1501 Truxtun Avenue Bakersfield, California 93301 Telephone: (661) 326 -3721 1 The enclosed Notice of Defense, if signed and filed with the BFD -PSD, is deemed a specific denial of all parts of the Order, but you will not be permitted to raise any objection to the form of the Order unless you file a further Notice of Defense as provided in Section11506 of the Government Code within fifteen (15) days after service of the Order upon you. If you file a Notice of Defense within the time permitted, a hearing on the allegations made in the Order will be conducted by the Office of Administrative Hearings of the Department of General Services in accordance with the procedures specified in Health and Safety Code section 25187 and Government Code sections 11507, et seq. The hearing may be postponed for good cause. If you have good cause, you must notify the BFD -PSD within ten (10) working days after you discover the good cause. Failure to notify the BFD -PSD within ten (10) working days will deprive you of a postponement. Copies of Government Code Sections 11507.5, 11507.6 and 11507.7 are attached. If you desire the names and addresses of witnesses or an opportunity to inspect and copy items in possession, custody or control of the BFD -PSD, you may contact: Ms. Janice Scanlan Deputy City Attorney City Attorney's Office City of Bakersfield 1501 Truxtun Avenue Bakersfield, California 93301 Telephone: (661) 326 -3721 Whether or not you have a hearing, you may confer informally with the CUPA to discuss the alleged facts, determinations, corrective actions and penalty. An informal conference does not, however, postpone the fifteen (15) day period you have to request a hearing on the Order. An informal conference may be pursued simultaneously with the hearing process. 2 You may, but are not required, to be represented by counsel at any or all stages of these proceedings. INFORMAL CONFERENCE If you wish to discuss this matter with the BFD -PSD, an Informal Conference has been scheduled for: Date: Thursday, April 20, 2006 Time: 10:00 AM Location: Prevention Services Division 2 "d Floor Conference Room City of Bakersfield Prevention Services Building 900 Truxtun Avenue, Suite 210 Bakersfield, California 93301 661) 326 -3979 You may inform the BFD -PSD at the conference whether you wish to pursue a formal hearing or waive your right to a formal hearing, as explained below. FORMAL HEARING RIGHTS YOU MUST FILE A WRITTEN REQUEST FOR A HEARING WITHIN FIFTEEN 15) DAYS IF YOU WISH TO HAVE A FORMAL HEARING. SACORRESPONDENCE HAZ\2006 -04 \RESPONDENT FRESH DONUT.DOC 3 STATE OF CALIFORNIA CITY OF BAKERSFIELD FIRE DEPARTMENT / PREVENTION SERVICES DIVISION In the Matter of: FRESH DOUGHNUT Bakersfield Business License No. 65103 Respondent. Docket No.: 2006 -26 NOTICE OF DEFENSE Bakersfield Municipal Code Section 15.64.036 I, the undersigned Respondent, acknowledge receipt of a copy of the Enforcement Order, Statement to Respondent, Government Code sections 11507.5, 11507.6 and 11507.7, Bakersfield Municipal Code sections 15.64.036, 15.64.037, and 15.64.038, and two copies of this Notice of Defense. I request a hearing to permit me to present my defense to the allegations contained in the Enforcement Order. Dated: Signature of Respondent) Please Type or Print the Name and Mailing Address of Respondent Name) Street Address) City) (State) (Zip) Telephone Number) it STATE OF CALIFORNIA CITY OF BAKERSFIELD FIRE DEPARTMENT / PREVENTION SERVICES DIVISION In the Matter of: FRESH DOUGHNUT Bakersfield Business License No. 65103 Respondent. Docket No.: 2006 -26 NOTICE OF DEFENSE Bakersfield Municipal Code Section 15.64.036 I, the undersigned Respondent, acknowledge receipt of a copy of the Enforcement Order, Statement to Respondent, Government Code sections 11507.5, 11507.6 and 11507.7, Bakersfield Municipal Code sections 15.64.036, 15.64.037, and 15.64.038, and two copies of this Notice of Defense. I request a hearing to permit me to present my defense to the allegations contained in the Enforcement Order. Dated: Signature of Respondent) Please Type or Print the Name and Mailing Address of Respondent Name) Street Address) City) (State) Telephone Number) 1 Zip) GOVERNMENT CODE Section 11507.5. Exclusivity of discovery provisions The provisions of Section 11507.6 provide the exclusive right to and method of discovery as to any proceeding governed by this chapter. Section 11507.6. Request for discovery After initiation of a proceeding in which a respondent or other party is entitled to a hearing on the merits, a party, upon written request made to another party, prior to the hearing and within 30 days after service by the agency of the initial pleading or within 15 days after such service of an additional pleading, is entitled to (1) obtain the names and addresses of witnesses to the extent known to the other party, including, but not limited to, those intended to be called to testify at the hearing, and (2) inspect and make a copy of any of the following in the possession or custody or under the control of the other party: a) A statement of a person, other than the respondent, named in the initial administrative pleading, or in any additional pleading, when it is claimed that the act or omission of the respondent as to such person is the basis for the administrative proceeding; b) A statement pertaining to the subject matter of the proceeding made by any party to another party or person; c) Statements of witnesses then proposed to be called by the party and of other persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, not included in (a) or (b) above; d) All writings, including, but not limited to, reports of mental, physical and blood examinations and things which the party then proposes to offer in evidence; e) Any other writing or thing which is relevant and which would be admissible in evidence; ENT. 11 5 1/93) f) Investigative reports made by or on behalf of the agency or other party pertaining to the subject matter of the proceeding, to the extent that such reports (1) contain the names and addresses of witnesses or of persons having personal knowledge of the acts, omissions or events which are the basis for the proceeding, or (2) reflect matters perceived by the investigator in the course of his or her investigation, or (3) contain or include by attachment any statement or writing described in (a) to (e) , inclusive, or summary thereof. For the purpose of this section, "statements" include written statements by the person signed or otherwise authenticated by him or her, stenographic, mechanical, electrical or other recordings, or transcripts thereof, of oral statements by the person, and written reports or summaries of such oral statements. Nothing in this section shall authorize the inspection or copying of any writing or thing which is privileged from disclosure by law or otherwise made confidential or protected as the attorney's work product. g) In any proceeding under subdivision (i) or (j) of Section 12940, or Section 19572 or 19702, alleging conduct which constitutes sexual harassment, sexual assault, or sexual battery, evidence of specific instances of a complainant's sexual conduct with individuals other than the alleged perpetrator is not discoverable unless it is to be offered at a hearing to attack the credibility of the complainant as provided for under subdivision (j) of Section 11513. This subdivision is intended only to limit the scope of discovery; it is not intended to effect the methods of discovery allowed under this section. Section 11507.7. .Petition to compel discovery; Order; Sanctions a) Any party claiming his request for discovery pursuant to Section 11507.6 has not been complied with may serve and file a verified petition to compel discovery in the superior court for the county in which the administrative hearing will be held, naming as respondent the party refusing or failing to comply with Section 11507.6. The petition shall state facts showing the respondent party failed or refused to comply with Section 11507.6, a description of the matters sought to be discovered, the reason or reasons why such matter is discoverable under this section, and the ground or grounds of respondent's refusal so far as known to petitioner. ENT 11 6 1193) b) The petition shall be served upon respondent party and filed within 15 days after the respondent party first evidenced his failure or refusal to comply with Section 11507.6 or within 30 days after request was made and the party has failed to reply to the request, whichever period is longer. However, no petition may be filed within 15 days of the date set for commencement of the administrative hearing except upon order of the court after motion and notice and for good cause shown. In acting upon such motion, the court shall consider the necessity and reasons for such discovery, the diligence or lack of diligence of the moving party, whether the granting of the motion will delay the commencement of the administrative hearing on the date set, and the possible prejudice of such action to any party. c) If from a reading of the petition the court is satisfied that the petition sets forth good cause for relief, the court shall issue an order to show cause directed to the respondent party; otherwise the court shall enter an order denying the petition. The order to show cause shall be served upon the respondent and his attorney of record in the administrative proceeding by personal delivery or certified mail and shall be returnable no earlier than 10 days from its issuance nor later than 30 days after the filing of the petition. The respondent party shall have the right to serve and file a written answer or other response to the petition and order to show cause. d) The court may in its discretion order the administrative proceeding stayed during the pendency of the proceeding, and if necessary for a reasonable time thereafter to afford the parties time to comply with the court order. e) Where the matter sought to be discovered is under the custody or control of the respondent party and the respondent party asserts that such matter is not a discoverable matter under the provisions of Section 11507.6, or is privileged against disclosure under such provisions, the court may order lodged with it such matters as are provided in subdivision (b) of Section 915 of the Evidence Code and examine such matters in accordance with the provisions thereof. f) The court shall decide the case on the matters examined by the court in camera, the papers filed by the parties, and such oral argument and additional evidence as the court may allow. g) Unless otherwise stipulated by the parties, the court shall no later than 30 days after the filing of the petition file its order denying or granting the petition, provided, however, the court may on its own motion for good cause extend such time an additional 30 days. The order of the court shall be in writing setting forth the matters or parts thereof the petitioner FNF.11 7 1193) is'entitled to discover under Section 11507.6. A copy of the order shall forthwith be served by mail by the clerk upon the parties. Where the order grants the petition in whole or in part, such order shall not become effective until 10 days after the date the order is served by the clerk. Where the order denies relief to the petitioning party, the order shall be effective on the date it is served by the clerk. h) The order of the superior court shall be final and not subject to review by appeal. A party aggrieved by such order, or any part thereof, may within 15 days after the service of the superior court's order serve and file in the district court of appeal for the district in which the superior court is located, a petition for a writ of mandamus to compel the superior court to set aside or otherwise modify its order. Where such review is sought from an order granting discovery, the order of the trial court and the administrative proceeding shall be stayed upon the filing of the petition for writ of mandamus, provided, however, the court of appeal may dissolve or modify the stay thereafter if it is in the public interest to do so. Where such review is sought from a denial of discovery, neither the trial court's order nor the administrative proceeding shall be stayed by the court of appeal except upon a clear showing of probable error. i) Where the superior court finds that a party or his attorney, without substantial justification, failed or refused to comply with Section 11507.6, or, without substantial justification, filed a petition to compel discovery pursuant to this section, or, without substantial justification, failed to comply with any order of court made pursuant to this section, the court may award court costs and reasonable attorney fees to the opposing party. Nothing in this subdivision shall limit the power of the superior court to compel obedience to its orders by contempt proceedings. ENF. 11 8 1/93) 15.64.0„ Damage to protected aboveground tanks shall he repaired using materials having equal or greater strength and fire resistance. Ord. 4 10 7 § I (part), 2003: Ord. § I (part). l y9a ) 15.641.0'_5 Appendix Chapter 111 —A(6) deleted. Ord. 3913 a I (part), 1999) 15.64.030 Appendix Chapter I11 —B(6) deleted Ord. 3913 § I (pan), 1999) 15.64.035 Section 103.1.4 deleted —Board of Appeals. Ord. 3913 § I (part), 1999) 15.64.036 Section 103.4.1 amended — Compliance orders and notices. Section 103.4. I. I, Compliance Orders and Notices, of the Uniform Fire Code is amended to read as follows: General. When the chief finds any buildings, premises. vehicle, storage facility or outdoor area that is in violation of this code, the chief is authorized to issue administrative compliance orders requiring that the violation be corrected and imposing an administrative penalty, in accordance with the following: I. In establishing a penalty amount and ordering that the violation be corrected pursuant to this section the chief shall take into consideration the nature, circumstances, extent, and gravity of the violation, the violator's past and present efforts to prevent, abate, or clean up conditions posing; a threat to the public health or safety or the environment, the violator's ability to pay the penalty, and the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community. 2. All administrative penalties collected from actions brought by the chief pursuant to this section shall be deposited into a special account that shall be expended to fund the activities of the prevention services division in enforcing this code. 3. The chief shall consult with the district attorney, county counsel, or city attorney on the development of policies to be followed in exercising the authority delegated pursuant to this section as it relates to the authority of the chief to issue orders. EXCEPTION: This section does not do anv ol'the following: nakerslietd Stipp Nu. 4, 05/03) 552 I . Otherwise atiect the authoritN ofthe chiel'to take any other action authorized by any other provision of law, except the chief shall not require a person to pay a penalty pursuant to this section and pursuant to it local ordinance for the same violation. Restrict the power ofa city attorney, district attorney, county counsel. or the Attomey General to brin!_, in the name of the people of California, any criminal proceeding otherwise authorized by law. 3. Prevent the chief from cooperating; with or participating in a proceeding specified in paragraph (2). Ord. 4107 § l (part), 2003) 15.64.037 Section 103.4.2 amended — Service of orders and notices. Section 103.4.2. Service of Orders and Notices, of the Uniform Fire Code is amended to read as follows: Orders and notices authorized or required by this code shall be given or served upon to owner, operator, occupant or other person responsible for the condition or violation either by verbal notification, personal service, or delivering the same to and leaving it with a person of suitable ape and discretion upon the premises, by affixing a copy thereof in a conspicuous place on the door to the entrance ofsaid premises and by mailinga copythereofto such person by registered or certified mail, return receipt requested, to the person's last known address. Orders or notices which are given verbally shall be confirmed by service in writing as herein provided and shall inform the person served of the right to a hearing. Ord. 4107 § I (part), 2003) 15.64.038 Section 103.4.2.1 added— Administrative compliance order hearings. Section 103.4.2.1. Compliance Order Hearings, is added to the Uniform Fire Code to read as follows: Any person served with an order pursuant to section 103.4.1 who has been unable to resolve any violation with the prevention services division, may within fifteen (15) days after service of the order. request a hearing pursuant to this section by tiling with the chief a notice of defense. The notice shall be filed with the prevention services office that issued the order. A notice of defense shall be deemed filed within the 15 -day period provided by this section if it is postmarked within that 15 -day period. If no notice ofdefense is filed within the time limits provided by this subdivision, the order shall become final. The hearin_ decision issued pursuant to this section shall be effective and final upon issuance by the chief. A copy ofthe decision shall be served by personal sei- ice or by certified mail upon the party served with the order, or their representative, if am. Any provision ol'an order issued under this section, except the imposition of an administrative penalty, shall take effect upon issuance by the chief if the chief finds that the violation or violations of law associated with that provision may pose an imminent and substantial endangerment to the public health or safety or the environment. A request for a hearing shall not stay the effect of that provision of the order pending a hearing decision. However, if the chiefdetermines that any or all provisions ofthe order are so related that the public health or safety or the environment can be protected only by immediate compliance with the order as a whole, the order as a whole, except the imposition of an administrative penalty, shall take effect upon issuance by the chief. A request for a hearing shall not stay the effect of the order as a whole pending a hearing decision. A decision issued pursuant to this section may be reviewed by a court pursuant to Section 11523 of the Government Code. In all proceedings pursuant to this section, the court shall uphold the decision of the chief if the decision is based upon substantial evidence in the record as a whole. The filing of a petition for writ of mandate shall not stay any action required pursuant to section 103.4.1 or the accrual of any penalties assessed. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction. (Ord. 4107 I (part), 2003) 15.64.040 Section 105.4.1 and .2 added— Inspection required. Section 105.4, Inspection Required. of the Uniform Fire Code is amended by adding; paragraphs (.1) and (.2) thereto as follows: I) If unique or unusual circumstances attend the design, operation, or use of a building or premises subject to inspection by the Fire Prevention Bureau, the Chief may require the owner or the person in possession or control of the building or premises to provide, without charge to the City. a technical opinion and report. The opinion and report shall be prepared by a qualified engineer, specialist, laboratory, or fire safety specialty organization acceptable to the Chief and shall treat the fire safety properties of the design, operation, or use of 1 5.64.0 18 the building or premises and the facilities and appurtenances situated thereon. 2) As used in this section. "unique or unusual circumstances" include new or novel technology. processes, products, facilities, materials. and uses. Ord. 4107 § I (part), 2003: Ord. 3913 § I (part). 1999) 15.64.045 Section 105.7 #7, 8, and 9 added — Revocation of permit. Section 105.7 Revocation of Permits, ofthe Uniform Fire Code is amended by adding paragraphs (7), (8) and (9) as follows: 7) The violation of this chapter or of any other ordinance of the city of Bakersfield or law of the State of California regulating or pertaining to the permittee's operations, as set forth in any written notice served upon the permitted by the Chief ofthe Fire Department, has not been corrected within the time required by said notice. 8) It is a misdemeanor for any person to continue to operate or maintain a regulated activity in the city of Bakersfield after his permit has been revoked. 9) Upon receiving notification ofpermit revocation, the holder of said permit shall return same immediately to the Chief ofthe Fire Department or shall turn said permit over to any representative of the Fire Department who demands it. Failure to comply constitutes a misdemeanor. Ord. 4107 § 1 (part), 2003: Ord. 3913 § l (part), 1999) 15.64.050 Section 1 114 added — Pipeline setbacks. Section l 1 14, Pipeline Setbacks, is added to the Uniform Fire Code to read as follows: 1 1 14.1 For purposes of this section High Pressure Transmission Line is a natural gas pipeline operating at two hundred and fifty pounds per square inch (250 psi) or greater. A gas main or transmission line is a natural gas pipeline operating at sixty pounds per square inch (60 psi) or less. I 114.2 No habitable portion of a structure may be built within fifty (50) feet ofa high pressure transmission line with thirty -six (36) inches of cover. It 14.3 No structure may be built within forty (40) feet of a hazardous liquid pipeline bearing refined product, with forty -eight (48) inches or more of cover. 553 (BAcvslieldSupp No 4,0540 ?)