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(a) Civil Enforcement. The Director of Public Health may enforce the provisions of this Article against violators by serving notice requiring the correction of any violation within a reasonable time specified by the Director. Upon the violator's failure to comply with the notice within the time period specified, (1) the Director may request the City Attorney to maintain an action for injunction to enforce the provisions of this Article and for assessment and recovery of a civil penalty for such violation and (2) the owner of the premises or the person with the right to possession and management of the property may maintain an action for injunctive relief to enforce the provisions of this Article and an action for damages. Damages may be awarded up to $500 a day for each day the violation occurs or is permitted to continue. It is necessary to specify the amount of such damages because of the extreme difficulty that the owner or other authorized person would have in establishing injury based on lost business, lost productivity due to health injuries caused by tobacco smoke, and other costs arising because of the health problems created by smoking. Any civil penalties collected under this Article shall be credited to the Public Health Environmental Health Code Compliance Fund, authorized by San Francisco Administrative Code Section 10.100-193.
(b) Administrative Enforcement. The Director also may enforce the provisions of this Article by:
(1) Serving a Notice of Violation requesting a person to appear at an administrative hearing before the Director at least 20 days after the Notice of Violation is mailed. At the hearing, the person cited with violating the provisions of this Article shall be provided an opportunity to refute all evidence against him or her. The Director shall oversee the hearing and issue a ruling within 20 days of its conclusion. The Director's ruling shall be final; or,
(2) Issuing a citation under San Francisco Administrative Code Chapter 100, "Procedures Governing the Imposition of Administrative Fines," which is hereby incorporated in its entirety and shall govern the imposition, enforcement, collection, and review of administrative citations issued to enforce this Article, and any rule or regulation adopted pursuant to this Article, in addition to the other enforcement mechanisms authorized by this Article, provided, however, that:
(i) Each day a violation is committed or permitted to continue shall constitute a separate violation;
(ii) The Director of Public Health shall appoint the hearing officer to conduct hearings for appeals;
(iii) The fine for any violation issued pursuant to this section shall be paid to the Treasurer of the City and County of San Francisco and credited to the Public Health Environmental Health Code Compliance Fund, authorized by San Francisco Administrative Code Section 10.100-193;
(iv) The Director may recover any costs and fees, including but not limited to attorneys' fees, for enforcement initiated through this Section and authorized under this Article; and,
(v) The penalty amounts for citations issued under Administrative Code Chapter 100 shall be the same as those set forth in subsection (c).
(c) Any person who violates or refuses to comply with the provisions of this Article shall be liable for a civil or administrative penalty in the amounts set forth in Cal. Labor Code Sec. 6404.5 for each day such violation is committed or permitted to continue. A civil penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco, by the City Attorney, in any court of competent jurisdiction. Any penalty assessed and recovered in a civil or administrative action brought pursuant to this Section shall be paid to the Treasurer of the City and County of San Francisco and credited to the Public Health Environmental Health Code Compliance Fund. An administrative penalty shall be assessed following an administrative hearing as described in subsection (b).
(Added by Ord. 249-94, App. 7/7/94; amended by Ord. 58-10, File No. 091443, App. 3/25/2010)
Any person who is found by an administrative hearing officer or a civil court to have violated the requirements of this Article or State law pertaining to smoking shall be liable to the City for costs incurred in abating the effects of the violation, taking other remedial action, or imposing and collecting penalties, including but not limited to administrative costs, costs of issuing an order, inspection costs, hearing officer costs, and reasonable attorneys' fees. The Controller's Office shall set the amount of actual costs, based on an accounting submitted by the Department of Public Health within ten business days of the hearing or trial.
The hearing officer shall require in any order issued under this Section that the responsible party pay to the City the costs of any inspection or monitoring deemed necessary by the Hearing Officer because of the violation.
(Added by Ord. 58-10, File No. 091443, App. 3/25/2010)
(a) All final costs, fees, and administrative or civil penalties assessed against a person for violations of this Article shall be an obligation owed to the City by the person found to have violated State or local laws pertaining to smoking. Such obligation may be collected by means of the imposition of a lien against the property of the person or business against whom the final administrative or civil penalty was assessed, provided the violation occurred on that property. The City shall mail to the owner of the property a notice of the amounts due and a warning that lien proceedings will be initiated against the property if the amounts are not paid within 30 days after mailing of the notice.
(b) Liens shall be created and assessed in accordance with of the San Francisco Administrative Code (commencing with Section 10.230).
(Added by Ord. 58-10, File No. 091443, App. 3/25/2010)
In undertaking the enforcement of this ordinance, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
(Added by Ord. 58-10, File No. 091443, App. 3/25/2010)
In adopting this Article, the Board of Supervisors does not intend to regulate or affect the rights or authority of the State to do those things that are required, directed or expressly authorized by federal or state law. Further, in adopting this Article, the Board of Supervisors does not intend to prohibit that which is prohibited by federal or state law. It is the intent of the Board of Supervisors that the provisions of this Article not be enforced in circumstances where duplicative state law already regulates smoking. Rather it is the Board's intention that this Article be enforced as to all business establishments to the fullest extent that state law does not regulate them.
(Added by Ord. 58-10, File No. 091443, App. 3/25/2010)
If any of the provisions of this Article or the application thereof to any person or circumstance is held invalid, the remainder of this Article, including the application of such part or provisions to persons or circumstances other than those to which it is held invalid, shall not be affected thereby and shall continue in full force and effect. To this end, the provisions of this Article are severable.
(Added by Ord. 58-10, File No. 091443, App. 3/25/2010)
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