SEC. 1133. ENFORCEMENT ACTIONS.

   (a)   Cease and Desist Orders.

      (1)   Whenever the Director finds that a person, business or responsible party is handling hazardous materials in violation of any requirement imposed pursuant to this Article, or pursuant to any order, regulation or permit issued by the Director, the Director may:

         (A)   Issue an order directing the person, business or responsible party to cease and desist such violation and directing the person, business or responsible party to achieve compliance in accordance with a detailed time schedule of specific actions the person, business or responsible party must take in order to correct or prevent violations of this Article;

         (B)   Issue an order revoking or suspending any permit.

      (2)   Any order issued by the Director under this Section may require the person, business or responsible party to provide such information as the Director deems necessary to explain the nature of the violation. The Director may require in any cease and desist order that the discharger pay to the City the costs of any extraordinary inspection or monitoring deemed necessary by the Director because of the violation.

   (b)   Cleanup and Abatement Orders.

      (1)   Any person, business or responsible party who has caused or permitted an unauthorized release or is causing or permitting an unauthorized release or any other person responsible for the cleanup of an unauthorized release who fails to take cleanup action in violation of this Article or any order, regulation, or prohibition issued by the Director, shall, upon order of the Director and at the expense of the person, business or responsible party, clean up such unauthorized release and abate the effects.

      (2)   Any responsible party who fails to take action to close a UST or establishment containing hazardous materials, or otherwise violates this Article or any order, regulations, or prohibition issued by the Director related to closure, shall, upon order of the Director and at the expense of the responsible party, close the UST or establishment and abate the effects of any release.

      (3)   The Director may perform any cleanup, abatement, or remedial work required under Subdivision (b)(1) or (2) when required by the magnitude of the violation or when necessary to prevent pollution, nuisance, or injury to the environment or protect public health and safety. Such action may be taken in default of, or in addition to, remedial work by the person, business or responsible party, regardless of whether injunctive relief is being sought.

      (4)   Any person, business or responsible party who has violated or is in violation of the requirements of this Article shall be liable to the City for costs incurred in cleaning up and abating the effects of the violation, or taking other remedial action, including but not limited to administrative costs, inspection costs and attorneys fees. All costs for which payment is not received within 30 days of the issuance of a notice to the responsible party of payment due, shall be delinquent and subject to a penalty of 10 percent, not to exceed $2,000, and interest at the rate of one percent per month on the outstanding balance from the date payment is due. In addition, the City may impose a special assessment lien against the property as provided in Section 1136.

   (c)   Administrative Civil Penalty Orders.

      (1)   The Director may issue a complaint, approved as to form by the City Attorney, to any person or business on whom an administrative civil penalty may be imposed pursuant to Section 1134. The complaint shall allege the acts or failures to act that constitute a basis for liability and the amount of the proposed administrative civil penalty. The Director shall serve the complaint by personal service or certified mail and shall inform the party so served that a hearing shall be conducted within 60 days after the party has been served, unless the party waives the right to a hearing. If the party waives the right to a hearing, the Director shall issue an order setting liability in the amount proposed in the complaint unless the Director and the party have entered into a settlement agreement, in which case the Director shall issue an order setting liability in the amount specified in the settlement agreement. The settlement agreement shall be approved by the City Attorney as to form. Where the party has waived the right to a hearing or where the Director and the party have entered into a settlement agreement, the order shall not be subject to review by any court or agency.

      (2)   Any hearing required by Subsection (1) shall be conducted in accordance with the procedures in Section 1137. After conducting any hearing required under this Section, the Department shall, within 30 days after the case is submitted, issue a decision, including an order setting the amount of the administrative civil penalty to be imposed.

      (3)   Orders setting civil liability issued under this Section shall become effective and final upon issuance, and payment shall be made within 30 days of issuance. Copies of these orders shall be served by personal service or by certified mail upon the party served with the complaint and upon other persons who appeared at the hearing and requested a copy.

      (4)   Within 30 days after service of a copy of a decision issued by the Director, any person so served may file with the superior court a petition for writ of mandate for review of the decision. Any person who fails to file the petition within this 30-day period may not challenge the reasonableness or validity of a decision or order of the Director in any judicial proceedings brought to enforce the decision or order or for other remedies. Except as otherwise provided in this Section, Section 1094.5 of the California Code of Civil Procedure shall govern any proceedings conducted pursuant to this Section. In all proceedings pursuant to this Section, the court shall uphold the decision of the Department if the decision is based upon substantial evidence in the whole record. The filing of a petition for writ of mandate shall not stay any accrual of any penalties assessed pursuant to this Article. This subdivision does not prohibit the court from granting any appropriate relief within its jurisdiction.

   (d)   Injunctive Relief.

      (1)   Upon the failure of any person, business or responsible party to comply with any requirement of this Article, a permit, any regulation, a cease and desist order, a cleanup and abatement order, or any other order issued by the Director, the City Attorney, upon request by the Director, may petition the proper court for injunctive relief, payment of civil penalties, and any other appropriate remedy, including restraining such person, business or responsible party from continuing any prohibited activity and compelling compliance with lawful requirements.

      (2)   In any civil action brought pursuant to this Article in which a temporary restraining order, preliminary injunction, or permanent injunction is sought, it is not necessary to allege or prove at any stage of the proceeding any of the following:

         (A)   Irreparable damage will occur should the temporary restraining order, preliminary injunction, or permanent injunction not be issued;

         (B)   The remedy at law is inadequate.

   The court shall issue a temporary restraining order, preliminary injunction, or permanent injunction in a civil action brought pursuant to this Article without the allegations and without the proof specified above.

   (e)   Termination of Establishment Containing Hazardous Materials. In addition to other remedies, when in the judgement of the Director, a person or business operating an establishment containing hazardous materials has not or cannot demonstrate satisfactory progress toward compliance with the requirements of this Article, the Director may remove any hazardous materials handled at the establishment, after providing written notice to the person or business operating the establishment and the owner of the real property upon which the establishment is located, by certified mail 30 days in advance of such action.

   (f)   Notices of Violation. Whenever the Director determines that a person, business or responsible party is not in compliance with the provisions of this Article, the Director may issue a notice of violation ordering the person, business or responsible party to comply with this Article.

   (g)   The Director may request that the District Attorney institute criminal proceedings in enforcement of this Article against any violation, the Chief of Department initiate enforcement procedures pursuant to the provisions of the Fire Code, and the Chief of Police and authorized agents assist in the enforcement of this Article.

   (h)   Except as otherwise provided in this Section for administrative civil penalty orders, an order issued under this Section shall become final five days after mailing if issued by certified mail, or upon receipt if issued by personal service.

   (i)   Except as otherwise provided in this Section for administrative civil penalty orders, any party who is the subject of an enforcement action under this Section may request a public hearing within 15 days of the final date of an order issued under this Section, but except for orders revoking or suspending a permit, the effective date of an order shall not be postponed solely because of the filing of a request for a hearing. Notice of a public hearing and of the final decision of the Director shall be given as provided in Section 1137.

(Added by Ord. 164-92, App. 6/10/92; amended by Ord. 399-97, App. 10/17/97)

SEC. 1134. PENALTIES.

   (a)   Criminal Penalties.

      (1)   Any person or business that wilfully prevents, interferes with, or attempts to impede the enforcement of this Article by any authorized representative of the Director is, upon conviction, guilty of a misdemeanor.

      (2)   Any person or business which violates Section 1151(a) shall, upon conviction, be punished by a fine of not more than $25,000 for each day of violation, or by imprisonment in the County Jail for not more than one year, or by both fine and imprisonment. If the conviction is for a violation committed after a first conviction under this Section, the person or business shall be punished by a fine of not less than $2,000 or more than $50,000 per day of violation, or by imprisonment in the State Prison for 16, 20, or 24 months or in the County Jail for not more than one year, or by both fine and imprisonment.

      (3)   Any person subject to the underground storage tank requirements of Chapter 6.7 of California Health and Safety Code (commencing with Section 25280) who falsifies any monitoring records required by that chapter or this Article, or knowingly fails to report an unauthorized release as required by that chapter and Section 1151(b), shall, upon conviction, be punished by a fine of not less than $5,000 or more than $10,000, by imprisonment in the County Jail for not to exceed one year, or by both fine and imprisonment.

      (4)   Any person or business who violates Section 1150 shall, upon conviction, be guilty of a misdemeanor or an infraction. If charged as an infraction, upon conviction, said person or business shall be punishable by a fine in an amount not to exceed $250. If charged as a misdemeanor, upon conviction, said person or business shall be punished by imprisonment in the County Jail not exceeding six months or a fine not exceeding $500, or both. Each day each violation is committed or permitted to continue shall constitute a separate offense. In addition to any peace officer, the following classes of employees of the City and County of San Francisco shall have the authority to enforce the provisions of this subsection:

Class Number	Class Title
6120	Environmental Health Inspector
6122	Senior Environmental HealthInspector
6124	Principal Environmental Health Inspector
6137	Assistant Industrial Hygienist
6138	Industrial Hygienist
6139	Senior Industrial Hygienist
6140	Hazardous Materials Program Manager
6126	Director, Environmental Health Section
6281	Fire Safety Inspector II
H-4	Fire Inspector
1372	Special Assistant, Environment Health Section

 

   (b)   Civil Penalties.

      (1)   Any business or person which violates the requirements of Division II of this Article or fails to permit an inspection required pursuant to this Article shall be civilly liable to the City in an amount of not more than $2,000 for each day in which the violation occurs.

      (2)   Any business or person which knowingly violates the requirements of Division II of this Article or fails to permit an inspection required pursuant to this Article after reasonable notice of the violation shall be civilly liable to the City in an amount not to exceed $5,000 for each day in which the violation occurs.

      (3)   Any owner of an underground storage tank who commits any of the violations listed in Section 1130(d) and (f) and any operator of an underground storage tank who commits any of the violations listed in Section 1130(d), (e) and (f) shall be civilly liable to the City in an amount not less than $500 or more than $5,000 for each underground storage tank for each day of violation.

      (4)   Any person who violates any requirements of Articles 3 and 4 of Chapter 6.75 of the California Health and Safety Code, (commencing with Section 25299.30) shall be civilly liable to the City in the amount of not more than $10,000 for each underground storage tank for each day of violation.

   (c)   Administrative Civil Penalties.

      (1)   Notwithstanding Subsection (b), any person or business who violates this Article is civilly liable to the Department for an administrative civil penalty, in an amount not to exceed $2,000 for each day in which the violation occurs. If the violation results in, or significantly contributes to, a release or threatened release of any hazardous material, any fire, or any health or medical problem requiring toxicological, health, or medical consultation, the business shall also be assessed the full cost of the City emergency response, as well as the cost of cleaning up and disposing of the hazardous materials.

      (2)   Notwithstanding Subsection (b), any person or business who knowingly violates this Article after reasonable notice of the violation is civilly liable to the Director for an administrative penalty, in an amount not to exceed $5,000 for each day in which the violation occurs.

      (3)   An administrative civil penalty shall not be recoverable pursuant to this subsection and Subsection (b) for the same violation.

   (d)   The court in determining civil and criminal penalties and the Director in determining administrative civil penalties imposed pursuant to this Article shall consider the extent of harm caused by the violation, the nature and persistence of the violation, the length of time over which the violation occurs, the frequency of past violations, any action taken to mitigate the violation, and the financial burden to the violator.

   (e)   Apportionment of Penalties.

      (1)   Criminal and civil penalties collected pursuant to Subsections (a)(2) and (b)(1) and (2) shall be apportioned consistent with the provisions of Sections 25515.2 and 25517 of the California Health and Safety Code.

      (2)   Administrative civil penalties collected pursuant to Subsection (c) shall be apportioned consistent with the provisions of Sections 25514.5(g) and (h) of the California Health and Safety Code.

(Added by Ord. 164- 92, App. 6/10/92; amended by Ord. 399-97, App. 10/17/97)

SEC. 1135. CIVIL ACTION FOR RETALIATION.

   A civil action may be instituted against any employer by any employee who has been discharged, demoted, suspended, or in any other manner discriminated against in terms or conditions of employment, or threatened with any such retaliation, because such employee has, in good faith, made any oral or written report or complaint related to the enforcement of this Article to any company official, public official or union official, or has testified in any proceeding in any way related thereto. In addition to any actual damages which may be awarded, damages shall include costs and attorneys' fees. The Court may award punitive damages in a proper case.

(Added by Ord. 164-92, App. 6/10/92)

SEC. 1136. SPECIAL ASSESSMENT LIENS.

   (a)   Cost and charges incurred by the City by reason of the cleanup and abatement of an unauthorized release; abatement of any violation of this Article, including but not limited to monitoring and inspection costs; a delinquency in the payment of a bill for fees applicable under this section in excess of 30 days; and any final administrative civil penalties assessed against a person or business for violations of this Article shall be an obligation owed to the City by the owner of the property where the hazardous materials were handled. The City shall mail to the owner of the property where the hazardous materials were handled or the person or business against whom the final administrative civil penalty was assessed. Such obligation may collected by means of the imposition of a lien against the property of the owner of the property where the hazardous materials were handled or of the person or business against whom the final administrative civil penalty was assessed. The City shall mail to the owner of the property where the hazardous materials were handled and to the person or business against whom the final administrative civil penalty was assessed (if different from 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 the requirement of Article XX of Chapter 10 of the San Francisco Administrative Code (commencing with Section 10.230).

(Added by Ord. 164-92, App. 6/10/92; amended by Ord. 322-00, File No. 001917, App. 12/28/2000)

SEC. 1137. DIRECTOR'S HEARINGS.

   (a)   The Director shall hold a public hearing for the following purposes:

      (1)   To issue an order that imposes an administrative civil penalty pursuant to Section 1133(c) of this Article unless the party against whom liability is to be imposed has waived the right to a hearing as provided in Section 1133(c);

      (2)   To issue an order pursuant to Section 1133(a) that revokes or suspends a permit;

      (3)   To take public comment on a permit application under Section 1124, upon timely and proper request by a person authorized pursuant to Section 1124(c);

      (4)   To take public comment on the approval of a corrective action plan or modification to a corrective action plan pursuant to Section 1143, upon timely and proper request by a person authorized pursuant to Section 1143(g);

      (5)   To comply with a request for a public hearing under Section 1133(i) following an enforcement action by the Director, upon timely and proper request by a person authorized pursuant to Section 1133(i);

      (6)   To hear an appeal from the levy of fee penalties and site investigation fees imposed pursuant to Sections 1120 and 1120.1. The Director may reduce the amount of the fees only upon a showing of just cause, such as demonstrable negligence on the part of an employee or agent;

      (7)   To take public comment on a risk management plan pursuant to Article 21A of this Code.

   (b)   Notices of public hearings pursuant to this Section shall be given by publication in a newspaper of general circulation in the City for at least two days and not less than 10 days prior to the date of such hearing. Written notice setting forth the date of the public hearing shall be sent to interested persons, including without limitation the hazardous materials handler and the property owner, by certified mail at least 10 days in advance of the hearing. The notice shall state the nature and purpose of the public hearing.

   (c)   In any hearing under this Article, all parties involved shall have the right to offer testimonial, documentary, and tangible evidence bearing on the issues, to see and copy all documents and other information the City relies on in the proceeding, to be represented by counsel, and to confront and cross-examine any witnesses against them. Any hearing under this Article may be continued by the person conducting the hearing for a reasonable time for the convenience of a party or a witness.

   (d)   In a hearing to issue an order setting liability for administrative civil penalties, the Director shall designate a certified court reporter to report all testimony, the objections made, and the ruling of the Director. Fees for transcripts of the proceedings shall be at the expense of the party requesting the transcript as prescribed by Section 69950 of the California Government Code, and the original transcript shall be filed with the Director at the expense of the party ordering the transcript.

   (e)   At the conclusion of a public hearing, the Director may take any action consistent with this Article and other applicable law. The Director's decision shall be in writing, and shall contain a statement of reasons in support of the decision. Following a public hearing, the decision of the Director shall be sent by certified mail to the handler and the property owner and any other interested person.

   (f)   Hearings requested pursuant to Subsections (a)(3), (a)(4), and (a)(5) shall be subject to a hearing fee as provided in Section 1176.

   (g)   The decision of the Director to issue, deny, revoke, suspend, modify or renew a permit may be appealed to the Board of Appeals in the manner prescribed in Article I, Part III of the San Francisco Municipal Code.

   (h)   The Director's action shall be final unless an appeal, if provided by this Article, is filed in a timely manner.

(Added by Ord. 164-92, App. 6/10/92; amended by Ord. 348-92, App. 11/18/92; Ord. 399-97, App. 10/17/97)

SEC. 1138. REMEDIES NOT EXCLUSIVE.

   Remedies under this Section are in addition to and do not supersede or limit any and all other remedies, civil or criminal.

(Added by Ord. 164-92, App. 6/10/92)

DIVISION V PUBLIC DISCLOSURE AND TRADE SECRETS

SEC. 1140. MAINTENANCE OF FILES.

   The Health Department shall maintain files of all application forms and supporting materials received from persons, businesses and establishments subject to the requirements of this Article, and shall provide for a central data bank of health and safety information. These files shall be open to the public for inspection, by appointment, and for reproduction upon payment of a fee during normal business hours at an office designated by the Director of Health. Computer data shall be provided in a form to be determined by the Director of Health. Said form shall be easily intelligible to the general public. Files required to be maintained pursuant to this Section shall be kept for a period of five years, after which they may be destroyed.

(Added by Ord. 164-92, App. 6/10/92; amended by Ord. 399-97, App. 10/17/97)

SEC. 1141. PUBLIC DISCLOSURE.

   (a)   Any person may request information regarding hazardous materials at an establishment from the Director of Health in accordance with this Section. Upon any request for a copy of records, the Director of Health shall, within 10 working days after receipt of such request, take either of the following actions:

      (1)   Provide the information requested to said person; or

      (2)   Notify said person that the Director of Health has determined:

         (A)   That the provision of the requested information will take longer than 10 working days because of the extensive amount or complicated nature of the information requested, or

         (B)   That said request for information is denied, and the reasons therefor.

      In the event of a medical emergency, the Director of Health and/or the Chief of Department shall take all measures necessary to obtain the information immediately.

   (b)   The Director of Health shall maintain, for a reasonable period of time, a record of all persons who request access to the application forms and supporting materials. The record shall include:

      (1)   The person's name, address and telephone number;

      (2)   The name and address of the person, business or governmental agency such person represents; and

      (3)   The identity of the specific file(s) examined or requested to be copied.

   (c)   The provisions of this Article are not intended to impair the power of the Director of Health to refuse to disclose information where the Director determines, pursuant to the California Public Records Act, that the public interest served by nondisclosure outweighs the public interest served by disclosure.

(Added by Ord. 164- 92, App. 6/10/92; amended by Ord. 399-97, App. 10/17/97)