(C) use any combination of the remedies prescribed
by this section, or other remedies authorized by law, to collect the
unpaid penalties, costs of restoration, and other fees and expenses
assessed because of unauthorized conduct and its mitigation by the
commissioner.
(c) Administrative Penalties and Removal of Certain
Structures, Improvements, Obstructions, Barriers, and Hazards on the
Public Beach.
(1) The commissioner may order the removal of a structure,
improvement, obstruction, barrier, or hazard from a public beach or
assess an administrative penalty in accordance with the Open Beaches
Act, §§61.0181 - 61.0184 and this subsection. The term "structure"
as used in this subsection has the meaning assigned in §15.2(67)
of this title (relating to Definitions) and includes any improvement,
obstruction, barrier or hazard on the public beach.
(2) For the purposes of this subsection, a person is
considered to be the person who owns, maintains, controls, or possesses
a structure or other encroachment on the public beach for the purposes
of this subsection if the person is the person who most recently owned,
maintained, controlled, or possessed the structure or other encroachment
on the public beach.
(3) The commissioner may conduct an evaluation to determine
if grounds for removal of a structure exist pursuant to the Open Beaches
Act, §61.0183. The evaluation will include:
(A) a determination of whether the structure is located
wholly or partially on the public beach in accordance with §15.3(b)
of this title (relating to Administration).
(B) if the structure is determined to be located on
the public beach, the evaluation will also include:
(i) a determination as to whether the structure constitutes
an imminent hazard to safety, health, or public welfare as provided
in §15.15 of this title (relating to Criteria for Determining
Health and Safety Hazards Associated with Structures on the Public
Beach), or
(ii) a determination as to whether the structure was
constructed or placed on the beach in a manner that is inconsistent
with the local government's beach access and use plan.
(4) Before the commissioner orders the removal of a
structure or imposes an administrative penalty, the commissioner must
give written notice and an opportunity for hearing to the person who
is constructing, maintaining, controlling, owning, or possessing the
structure on the public beach in accordance with the Open Beaches
Act, §61.0184 and the procedures outlined in paragraph (6) of
this subsection. The person must forward a copy of the notice to any
entity or individual holding a lien, mortgage or any other property
interest in the structure and provide evidence of compliance with
this requirement to the General Land Office within 10days of receiving
the notice.
(5) If the person fails to remove the structure or
make a timely written request for a hearing, the commissioner may
order the removal of the structure, assess removal costs, fees and
expenses, impose an administrative penalty, or use any combination
of these remedies.
(6) Notice, Orders and Hearings.
(A) Before the commissioner may order the removal of
a structure, improvement, obstruction, barrier, or hazard under the
Open Beaches Act, §61.0183, or impose an administrative penalty
under the Open Beaches Act, §61.0181, the commissioner must provide
written notice to the person who is constructing, maintains, controls,
owns, or possesses the structure, improvement, obstruction, barrier,
or hazard on the public beach. The notice must:
(i) describe the specific structure that violates the
Open Beaches Act or this subchapter;
(ii) state that the person who is constructing, maintains,
controls, owns, or possess the structure is required to remove the
structure:
(I) within a reasonable time specified by the commissioner
if the structure is an imminent threat to public health, safety or
welfare as provided in §15.15 of this title; or
(II) not later than the 30th day after the date on
which the notice is served if the structure was constructed or placed
on the beach in a manner that is inconsistent with the local government's
beach access and use plan; or
(III) not later than the 90th day after the date on
which the notice is served if the structure has been used as a permanent,
temporary, or occasional residential dwelling by at least one individual
at any time during the year preceding the date of the notice.
(iii) state that the failure to remove the structure
may result in liability for a civil penalty under the Open Beaches
Act, §61.018(c) in an amount specified, removal of the structure
by the commissioner, and liability for the costs of removal, or any
combination of these remedies;
(iv) state that the person may submit, not later than
the 30th day after the date on which the notice is served, a written
request for a hearing to contest the commissioner's findings. Provided,
however, if the structure has been used as a permanent, temporary,
or occasional residential dwelling by at least one individual at any
time during the year before the date on which the notice is served,
the person may submit, not later than the 90th day after the date
on which the notice is served, a written request for a hearing. If
the person does not make a timely request for a hearing, the person
waives all rights to judicial review of the commissioner's findings
or orders.
(B) The notice given by this subsection must be given
in accordance with subsection (d) of this section.
(7) If the person does not comply with a removal order
of the commissioner or pay assessed penalties, removal costs, or other
assessed fees and expenses on or before the 30th day after the date
of entry of the final order, the commissioner may:
(A) contract for removal and disposal of the structure;
(B) sell salvageable parts of the structure to offset
costs of removal;
(C) request that the attorney general institute civil
proceedings to collect the penalties, costs of removal, and other
fees and expenses assessed because of the structure's placement on
the public beach and the removal order by the commissioner; or
(D) use any combination of remedies prescribed by this
subsection, or other remedies authorized by law, to collect the unpaid
penalties, costs of removal, and other fees and expenses assessed
because of the structure's placement on the public beach and the removal
order by the commissioner.
(d) Notice of Violation and Hearing Requirements.
(1) Before the commissioner may order restoration or
removal of a structure or assess administrative penalties under this
section, the commissioner must give written notice and an opportunity
to request a hearing to the person charged with the violation.
(2) The notice required by this subsection must be
given:
(A) by service in person, by registered or certified
mail, return receipt requested, or by priority mail; or
(B) if personal service cannot be obtained or the address
of the person is unknown, by:
(i) electronic mail if the electronic mail address
is verifiable; or
(ii) posting a copy of the written notice at the site
where the conduct was engaged in and by publishing notice in a newspaper
with general circulation in the county in which the site is located
at least two times within 10 consecutive days.
(3) If the person requests a hearing, the commissioner
must grant the hearing before an administrative law judge employed
by the State Office of Administrative Hearings as provided in the
Dune Protection Act, §63.1814 and the Open Beaches Act, §61.0184(g).
(4) The right to appeal an order is subject to Dune
Protection Act, §63.151, and the Open Beaches Act, §61.0184(h).
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