(Super. Ct. No. VCU227939) APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara, Judge.
The opinion of the court was delivered by: Kane, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Farshad A. Tafti (appellant), an individual doing business as Kaweah General Store, appeals from a judgment denying his petition for a writ of mandate in which he challenged the validity of $1,148,200 in civil penalties imposed against him by the County of Tulare and Tulare County Division of Environmental Health Services (collectively referred to as respondent). The civil penalties were imposed following an administrative hearing before an Administrative Law Judge (ALJ), whose findings were adopted by respondent, and were based on alleged violations by appellant of laws relating to underground gasoline storage tanks. Prior to the hearing, respondent had issued an enforcement order determining that appellant committed certain violations and owed civil penalties of $138,824. Appellant requested an appeal hearing after being notified by respondents that such a hearing would be an opportunity to challenge the enforcement order. When the hearing resulted in a massive increase of over $1 million in the total amount of civil penalties, appellant appealed. His appeal raises issues of notice, fairness, due process and statutory authority, among others. We conclude that under the unique circumstances shown in this case, appellant did not receive fair and adequate notice. Accordingly, we reverse the judgment of the trial court with instructions to grant the writ of mandate to the extent explained in our disposition below.
FACTS AND PROCEDURAL HISTORY
Appellant is the owner of the Kaweah General Store in Three Rivers, California, which had included a small gasoline station. When appellant purchased the property in 2000, it consisted of an 800 square foot building, three gasoline dispensers, and underground gasoline storage tanks. From approximately December of 2003 through September of 2006, respondent notified appellant of noncompliance with laws relating to underground storage tanks and sought to have appellant take steps to correct the specified violations.
Respondent is a local enforcement agency (also referred to as a unified program agency) that is certified under state law to implement the "Unified Hazardous Waste and Hazardous Materials Management Regulatory Program" (see Health & Saf. Code,*fn2 §§ 25404-25404.9) in Tulare County. Respondent's enforcement responsibility includes laws regulating underground storage tanks. (See § 25404.1.1, subd. (a); cf. § 25299, subds. (a) & (b).)
On September 5, 2006, respondent issued an administrative enforcement order (the Enforcement Order) against appellant, assessing a penalty of $138,824. The Enforcement Order alleged several violations of administrative regulations that are codified at California Code of Regulations, title 23, chapter 16 (hereafter Regulations), which regulate underground storage tanks. The Enforcement Order notified appellant that respondent had "determined" that appellant committed the violations detailed in the Enforcement Order. According to the Enforcement Order, appellant violated Regulations, title 23, section 2670, subdivision (e) by the following conduct: (1) failure to follow applicable containment and monitoring requirements during the period of time between cessation of hazardous substance storage and actual completion of tank closure (with the period of violation from Sept. 30, 2004, until at least May 31, 2006, or 609 days); (2) failure to apply for temporary or permanent tank closure within the required time period (with the period of violation from Dec. 29, 2004, until at least May 31, 2006, or 519 days); and (3) failure to complete tank closure within a reasonable time period (with the period of violation from Nov. 3, 2004, until at least May 31, 2006, or 575 days). Further, the Enforcement Order cited appellant for violation of Regulations, title 23, section 2671, subdivision (a)(1) for failure to remove and handle all residual liquid, solids, or sludge from the underground storage tanks in accordance with the applicable provisions of chapters 6.5 and 6.7 of division 20 of the Health and Safety Code (with the period of violation from Nov. 3, 2004, until at least May 31, 2006, or 575 days). Finally, the Enforcement Order alleged that appellant violated Regulations, title 23, section 2671, subdivision (a)(2) by his failure to "inert" the underground gasoline storage tanks to safe levels that would preclude an explosion (with the period of violation from Nov. 3, 2004, until at least May 31, 2006, or 575 days).
Based on these determinations, the Enforcement Order ordered appellant to "remove the two 6,000-gallon [underground gasoline storage tanks] in accordance with Article 7 of Title 23, California Code of Regulations, Chapter 16." Appellant was also ordered to pay the sum of $138,824, of which $137,778 was a "penalty" for the violations noted in the Enforcement Order and $1,046 was for administrative costs.*fn3
At paragraph 6 of the Enforcement Order, under the heading "RIGHT TO A HEARING," it stated: "[Appellant] may request a hearing to challenge the Order. Appeal procedures are described in the attached Statement ...." (Italics added.) The attached statement advised appellant that he "may choose: [¶]  to comply with the Order immediately, [¶]  to discuss the matter with [respondent] at the Informal Conference scheduled below, or [¶]  to pursue a formal appeal." Under the heading "FORMAL APPEAL RIGHTS," it was explained that appellant may request a "hearing" by mailing or delivering a "Notice of Defense" within time limits indicated, otherwise the Enforcement Order would become final. The statement further explained: "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 Agency of General Services in accordance with the procedures specified in Health and Safety Code section 25404.1.1 and Government Code section 11507 et seq."
Appellant removed the underground gasoline storage tanks and gasoline dispensers. On October 26, 2006, the soil under the site of the underground storage tanks and dispensers was tested and found not to have any contamination under United States Environmental Protection Agency standards.
Appellant timely filed a notice of defense requesting a hearing to challenge the Enforcement Order. On March 20, 2007, an administrative hearing commenced before ALJ Robert Walker (the ALJ) and was continued to May 14, 2007. Ultimately, the hearing was completed on January 29, 2008. The administrative hearing was bifurcated to separate issues of violation from those of penalty. After the portion of the hearing addressing the substantive violations, the ALJ made factual findings that appellant violated Regulations, title 23, sections 2670, subdivision (e), and 2671, subdivisions (a)(1) and (a)(2). Following the subsequent hearing addressing the civil penalties, the ALJ listed each of the violations, made findings of the number of days that the violations continued, and applied a per-day penalty amount as to each category of violation after considering the factors listed in sections 25299 and 25404.1.1. When the math was done, the ALJ determined that appellant owed a total civil penalty of $1,148,200. The ALJ's proposed decision was thereafter adopted by respondent as its decision and order, thereby imposing penalties against appellant of $1,148,200.
Appellant petitioned to Tulare County Superior Court for a writ of mandate seeking to overturn respondent's decision and order. The court reviewed the record as well as the proposed findings of fact submitted by appellant and respondent. It adopted findings 1 through 61 as submitted by respondent, concluded that appellant received adequate notice and due process of law, and it held that the findings of fact made by the ALJ and adopted by respondent were supported by substantial evidence. The court rejected appellant's contention that the civil penalties violated the excessive fines clause of the United States Constitution, since the importance of the interests protected and the potential for harm supported the imposition of the penalty. Thus, according to the court's findings, the civil penalty was not disproportionate to the offense. The court therefore affirmed the penalties and it denied the petition for writ of mandate in its entirety.
Appellant's timely appeal followed. He contends the trial court erred on the following grounds: (1) the ALJ and respondent lacked authority to impose civil penalties for violations of regulations; (2) the ALJ and respondent lacked authority to impose penalties greater than the amount imposed by the Enforcement Order; (3) appellant was not provided adequate notice and opportunity to be heard; (4) the penalties imposed were excessive and violated appellant's constitutional rights; and (5) ...