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(a) All dwelling units or nonresidential premises which have been inspected pursuant to Section 1626, and which contain lead hazards as determined by the Director, are hereby declared to be and are nuisances. The Director is hereby authorized and empowered to abate any such nuisance by issuance of an order as set forth in this Article, or by taking such other actions as authorized by law. Every order issued pursuant to this Article shall require the performance of such lead hazard remediation techniques as may be necessary in the Director's discretion to control, reduce or eliminate lead hazards and to abate any nuisance caused by such hazards. Every such order shall include a schedule for the performance of all lead hazard reduction or control activities, including abatement of Housing and/or Building Code violations which cause or contribute to the nuisance. The schedule shall reflect time allocated for the required public hearing under Section 1631.
(1) Every Section 1628(a) order issued to the owner or manager of a dwelling unit shall state, in boldface type of at least 12 points, the following warning:
WARNING! Sections 17274 and 24436.5 of the Calif. Revenue and Taxation Code provide that a taxpayer who derives rental income from housing determined by the San Francisco Department of Public Health or by the San Francisco Department of Building Inspection to be substandard by reason of violation of state or local codes dealing with housing, building, health, or safety, cannot deduct from state personal income taxes and bank and corporate income taxes any deductions for interest, taxes, depreciation, or amortization attributable to such substandard housing, where the substandard conditions are not corrected within six months after notice of violation.
(b) Any lead hazard remediation technique which the Director determines necessary to eliminate lead hazards must be substantially completed within 14 days of the effective date of the order, except that activities which require the owner or manager to obtain permits and/or contractors, must be substantially completed within 30 days of the effective date of the order. For the purposes of this Section, the term "substantially completed" shall include but not be limited to obtaining estimates, applying for permits, hiring contractors and to the extent reasonably possible, conducting the activities specified by the order.
(c) The Director's order may limit the performance of specified lead hazard remediation techniques to certified or licensed contractors.
(d) Upon request of the Director, the consultant(s) appointed under Section 1627 shall prepare and submit a plan outlining any identified Housing or Building Code violations in a building, premises or dwelling unit subject to inspection under this Article, concluding whether such violations cause or contribute to lead hazards identified by the Director, and indicating the measures necessary to eliminate the hazards. The Director may incorporate the Consultant's conclusions in any order issued under this Article.
(e) The Director may require that the owner/manager obtain a building permit from the Department of Building Inspection for certain activities to complete the order.
(f) All orders issued under this Section shall require the least invasive, lowest-cost lead hazard remediation techniques available to abate the nuisance created by lead hazards, provided that the use of any such remediation technique is effective to protect the lead-poisoned child from exposure to lead hazards for the period ordered by the Director.
(g) The Director may review any order issued under this Article with the owner or manager at the site of the inspection.
(h) Every person subject to an investigation or other enforcement action pursuant to the provisions of this Article shall pay an inspection and administrative fee to cover the costs of inspection, sampling, testing, and administrative time. The inspection fee shall equal $85 per hour of Department of Public Health staff time spent during inspection or periodic surveillance, plus the actual cost of any equipment, supplies, laboratory fees, all tenant relocation costs and any other costs required to bring the dwelling into compliance with an order issued by the Director under this Section.
(i) All orders issued under this Section must be written in the appropriate language(s) of the affected tenant(s) and owner or manager.
(j) All orders issued under this Section to the owner of a dwelling unit shall require the owner to notify future occupants, purchasers or transferees of the contents of the order, and whether the dwelling unit is in compliance with the order at the time of transfer or lease.
(k) An owner or manager issued orders under this Section must comply with all applicable federal, State or local laws regarding lead hazard remediation techniques.
(l) In any judicial or administrative proceeding, it shall not be a defense to an order issued under the Housing Code, Building Code or Health Code that the condition of the building or dwelling was not a cause or contributing factor to the child's blood lead level.
(m) All orders issued under this Section shall require the owner to provide adequate protection to occupants against lead hazards, including vacation of the building or dwelling unit, if necessary in the Director's discretion. The Director may delete a vacation requirement at the request of any party upon approval of a workplan specifying work processes, performance controls, and engineering and access controls that will ensure occupant safety during lead hazard reduction work.
(Added by Ord. 409-96, App. 10/21/96)
(a) The Director shall issue a report of findings to accompany all orders issued under Section 1628, which will contain the following:
(1) A list of all potential exposure sources and lead hazards, including the characteristic(s) of each source and whether the source is under the control of the occupant or owner of the building or dwelling unit. Lead hazards shall be considered in the owner or manager's control.
(2) An explanation of the cause(s) of any and all lead hazards found in the building or dwelling unit, in the common areas of the building, and from the exterior of the building, out to the perimeter of the property.
(b) Every report of findings regarding lead hazards in a dwelling unit shall contain a statement, supported by factual findings, identifying any lead hazard which the Director has determined constitutes a substantial danger to the occupants.
(c) A record of all paint and soil conditions cited in the Director's order shall be made in writing and visually documented by still or video camera.
(d) Any order under this Section 1629 shall be written in the appropriate language(s) of the affected tenant(s), owner(s) and/or manager(s).
(Added by Ord. 376-92, App. 12/23/92; amended by Ord. 409-96, App. 10/21/96)
(a) Whenever the Director determines that a nuisance under this Article presents an imminent and substantial threat to the health of a lead-poisoned child, and that an order under Section 1628 will not protect the affected child from the continued presence of lead hazards before the building, premises or dwelling unit can be made lead safe, the Director may issue an emergency order to the owner or manager. The emergency order shall require the owner or manager to reduce or eliminate certain lead hazards within 48 hours, and shall specify the measures necessary to reduce the hazard(s). Emergency orders may require immediate cleaning of the building, premises or dwelling unit, fencing to limit access to lead-contaminated soil, provision of bottled drinking water, and other measures which the Director determines to be readily available to prevent exposure to a lead hazard.
(b) The Director will determine at his or her discretion when the emergency procedures have been satisfactorily completed. Any lead hazards which have not been addressed by the emergency order, shall be designated in an order issued under Section 1628.
(c) An emergency order issued under this Section shall be personally served upon the owner or manager of the building, premises or dwelling unit, and any tenant residing there with a lead-poisoned child. If the owner or manager cannot be located promptly after the Director's determination to issue an emergency order, the order may be served as set forth in Section 1631(a).
(d) All emergency orders issued under this Section must be written in the appropriate language(s) of the affected tenant(s), owner(s) and manager(s). Every such order to the owner or manager of a dwelling unit shall also state, in boldface type of at least 10 points, the following warning:
"WARNING! Sections 17274 and 24436.5 of the Calif. Revenue and Taxation Code provide that a taxpayer who derives rental income from housing determined by the San Francisco Department of Public Health or by the San Francisco Department of Building Inspection to be substandard by reason of violation of state or local codes dealing with housing, building, health, or safety, cannot deduct from state personal income taxes and bank and corporate income taxes any deductions for interest, taxes, depreciation, or amortization attributable to such substandard housing, where the substandard conditions are not corrected within six months after notice of violation."
(e) In the event that the person named in an emergency order fails to carry out prescribed activities, the Director may abate the nuisance as provided in Article 11, Section 599 of the San Francisco Health Code. An emergency order shall not be appealable under this Article.
(Added by Ord. 409-96, App. 10/21/96)
(a) Orders issued under Sections 1625 or 1628 shall be served by certified mail, return receipt requested, and accompanied by a notice which shall be posted at the affected site. The order and notice shall include, but not be limited to, the measures necessary for compliance with the order, the final compliance date, and the date of the public hearing scheduled under Section 1631(b).
(1) For all order issued under Section 1628, a copy of the order and notice, and the report of findings under Section 1629, shall be mailed to the parent or guardian of the child determined to have an elevated blood level, and notice of the presence of lead hazards may be provided to users of nonresidential buildings and premises by posting a notice at the affected site. A copy of the order, notice and report of findings shall be served upon each of the following:
(A) The landlord, manager, or other person in real or apparent charge and control of the premises or dwelling unit involved;
(B) The owner of record.
(2) For all orders issued under Section 1625, a copy of the order and notice shall be mailed to the owner of record.
(3) Service under this Section shall be effective on the date of mailing if sent to each person at the address of such person as it appears on the last equalized assessment roll of the County or at the address to which the most recent real property tax bill for said building or premises was mailed by the Tax Collector. If no such address so appears from the assessment roll of the County or the records of the Tax Collector, then a copy of the order, notice and report of findings shall be addressed to such person at the address of the building or premises involved. The failure of any owner or other person to receive such order, notice and report of findings shall not affect in any manner the validity of any proceeding under this Article.
(b) When an order is issued under Sections 1625 or 1628, a public hearing shall be scheduled and held seven working days from the date the order is issued. An extension of time for the hearing may be granted by the Director upon good cause shown by an owner, manager, landlord or tenant(s) electing to appear at the hearing.
(d) At the conclusion of a public hearing, the Director may take any action consistent with this ordinance and other applicable law. The Director's final decision shall be in writing, shall contain a statement of reasons in support of the decision and shall reflect any extension of time, if necessary, for compliance with the order.
(1) Decisions of the Director under Section 1628 shall be sent by certified mail, return receipt requested, to the building owner or manager, and to the landlord and tenant of the applicable dwelling unit, and by regular mail to all other parties who request a copy at the hearing.
(2) Decisions of the Director under Section 1625 shall be sent by certified mail, return receipt requested, to the owner of record.
(e) A copy of the Director's decision shall be posted in a conspicuous place on the building or premises, and shall be recorded in the office of the Recorder of the City and County of San Francisco.
(Added by Ord. 409-96, App. 10/21/96; amended by Ord. 448-97, App. 12/5/97)
Whenever a final decision of the Director has been issued under Section 1631, and the date for compliance has arrived, a clearance inspection shall be conducted by the Director in order to verify compliance. If the Director finds that the owner or manager has not complied with an order, or that compliance has failed to eliminate lead hazards or abate the nuisance created thereby, the Director may issue additional orders or take such further actions as authorized by law. The Director shall notify the Director of the Department of Building Inspection if violations of the San Francisco Building Code or the San Francisco Housing Code continue to cause or contribute to any lead hazard. If the Director determines that the order has been complied with the Director shall issue an order rescinding the original order. The order of recision shall be recorded in the office of the Recorder upon verification that the Department's costs, charges and penalties under Sections 1628(h), 1636, and 1637 have been paid.
(Added by Ord. 409-96, App. 10/21/96)
(a) Whenever the Director determines that an owner or manager has complied with a Section 1628 order which ordered only temporary remediation techniques, the Director shall issue a Maintenance and Reinspection Order. Every such order shall include a schedule of appropriate maintenance and periodic reinspection. Reinspections will be performed by a certified risk assessor. Reinspection reports, including visual and quantitative data, shall be submitted to the Director.
(b) The Director may, as necessary, issue new Emergency or Hazard Reduction Orders to the owner or manager of a dwelling unit or nonresidential premises which is subject to a Maintenance and Reinspection Order.
(Added by Ord. 409-96, App. 10/21/96)
DIVISION VIII
INCENTIVE PROGRAMS
INCENTIVE PROGRAMS
(a) The Mayor's Office shall develop proposed programs for grants, loan guarantees and no- or low-interest loans for owners of property contaminated with lead. The Mayor's Office shall transmit to the Board of Supervisors a range of options for such programs within one year.
(b) In preparing proposed programs, the Mayor's Office shall consider and make recommendations regarding the following potential elements: whether and to what extent financial assistance should be provided based on an owner's voluntary abatement of lead hazards, the income of the owner and the owner's tenants, the risk of tenants becoming homeless if abatement work proceeds and the cost of the work is passed through to the tenants, the presence of children under the age of six on the property, the current blood lead levels of children who frequent the property, the condition of the property, whether rehabilitation, energy conservation or other improvements are planned, and whether the owners of nonrental property should be required to demonstrate financial need and the presence of children under the age of six with a certain blood lead level.
(Added by Ord. 376-92, App. 12/23/92; amended by Ord. 409-96, App. 10/21/96)
DIVISION IX
COMPREHENSIVE ENVIRONMENTAL LEAD POISONING FUND
COMPREHENSIVE ENVIRONMENTAL LEAD POISONING FUND
(a) There is hereby established a special fund to be known as the Comprehensive Environmental Lead Poisoning Fund. Into this fund shall be deposited (1) all monies obtained from civil penalties obtained from enforcement of this Article, (2) all monies obtained from enforcement of Proposition 65 (the Safe Drinking Water and Toxic Enforcement Act of 1986, Health and Safety Code Sections 25249.5 et seq.), Business and Professions Code Sections 17200 et seq., or similar laws, insofar as monies are recovered under these laws because of lead contamination, except when the governing law requires that the monies be otherwise allocated, and (3) all donations of money which may be offered to the City to support the Program. The Director is hereby authorized to accept, on behalf of the City and County of San Francisco, any grants, gifts and bequests made for the purpose of furthering the goals of the Program and upon acceptance they shall be deposited into said fund.
(b) Subject to the budget and fiscal provisions of the Charter, the monies in this fund may only be expended for expenses related to the development, implementation and operation of the Program.
(c) Interest earned from the monies in said fund shall become part of the principal thereof, and shall not be expended for any purpose other than for which said fund is established. The balance remaining in the fund at the close of any fiscal year shall be deemed to have been provided for a specific purpose within the meaning of Charter Section 6.306 and shall be carried forward and accumulated in said fund for the purpose recited herein.
(d) No later than one year after the effective date of this ordinance and thereafter annually, the Controller shall submit a report to the Director, the Board of Supervisors and the Mayor which shall include the following information:
(1) A detailed identification of the sources of monies contributed to the fund;
(2) An accounting of the uses of the monies in the fund during the preceding year;
(3) An estimate of the amount of money that the Controller anticipates, after consulting with the Director and other appropriate City departments, shall be deposited in the fund during the next year.
The Controller shall coordinate with the Director and attempt to issue this report at the same time that the Director provides the annual Program report required under Section 1609.
(Added by Ord. 376-92, App. 12/23/92; amended by Ord. 409-96, App. 10/21/96)
DIVISION X
ENFORCEMENT AND PENALTIES
ENFORCEMENT AND PENALTIES
(a) The Department of Public Health shall be the primary administering and enforcing agency under this Article. The Director is hereby authorized to call upon the Director of Public Works and the Chief of Police and all other city officers, employees, departments and bureaus to aid and assist him or her in such enforcement, and it shall then be their duty to assist the Director in enforcement of this Article by performing such duties as may come within their respective jurisdictions.
(b) Upon an owner or manager's failure to comply with an order from the Director, 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. The Director may also request the City Attorney or the District Attorney, as the case may be, to commence an action against the owner or manager of any building, premises or dwelling unit declared to be a nuisance under this Article for an injunction or civil penalty under the California Business and Professions Code.
(c) Upon an owner's failure to abate a nuisance under this Article pursuant to an order from the Director, and if an owner has not commenced good faith efforts for compliance as determined by the Director, the Director may notify, in writing, the Franchise Tax Board of the noncompliance. The notice of noncompliance shall contain the legal description or the lot and block numbers of the real property, the assessor's parcel number, and the name of the owner of record as shown on the latest equalized assessment roll.
(Added by Ord. 409-96, App. 10/21/96)
(a) Any person who fails to comply with an order from the Director under this Article shall be civilly liable to the City and County of San Francisco for a civil penalty in an amount not to exceed $500 for each day in which the violation occurs. Each day that such violation continues shall constitute a separate violation.
(b) In determining civil penalties, the court shall consider the extent of harm caused by the violation(s) to the order, the nature and persistence of the violation(s), the length of time over which the violation(s) occur(s), the frequency of past violations, any action taken to mitigate the violation, and the financial burden to the violator. In addition to assessing a civil penalty, a court may order compliance with the order or such other relief as may be necessary to abate the nuisance.
(c) Any person who fails to comply with an order under Sections 1625 or 1628 may be assessed an administrative penalty by the Director. Assessment of an administrative civil penalty shall not be a prerequisite to abatement by the Director, or to the filing of a court action seeking penalties or injunctive relief.
(1) Upon receipt of information that a violation of an order has occurred, the Director shall serve the parties named in the order with a complaint specifying the violations, assessing a proposed administrative penalty, warning the parties that their violation will be reported to the Franchise Tax Board (explaining the consequences of such notification), and setting a hearing date no more than 30 days and no less than 10 from the date the complaint is mailed. Service shall be by first class mail, return receipt requested. In the case of an order issued under Section 1628, a copy of the complaint shall be provided to the occupants of the affected dwelling unit. The Director shall post a notice of the hearing at the affected building or premises.
(2) The hearing officer shall hear testimony from the parties named in the complaint and any other interested party on the nature of the alleged violation, the appropriateness of the proposed penalty, and the need to adjust the schedules in the original order. If the hearing officer determines that a violation continues to occur, the compliance schedule shall be adjusted to allow a reasonable period of time, not to exceed 30 days, for completion of the requirements of the order. A penalty shall be assessed based on the factors in Subsection (b) above, which shall become due and payable to the City and County of San Francisco on the thirty-first day after the effective date of the hearing officer's determination if the Director determines, after inspection, that compliance has not been achieved.
(A) A record of the hearing shall be prepared which shall include a transcript, all written letters, pleadings, notices and orders, exhibits and any other papers in the case. The hearing officer's final written decision shall be included in the record.
(B) A final decision which finds a continuing violation shall instruct the Department of Public Health to notify the Franchise Tax Board of any violation which continues for six months beyond the original order as provided in Revenue and Taxation Code Sections 12724 and 24436.5.
(C) The final decision shall notify all parties that the time within which judicial review may be sought is governed by Section 1094.6 of the California Code of Civil Procedure.
(3) If a penalty is not timely paid the Director may take any action authorized by law, including commencement of a judicial action to seek the full amount of a civil penalty plus injunctive relief. The Director may initiate lien proceedings pursuant to Chapter 10, Article XX of the San Francisco Administrative Code to collect any unpaid penalties.
(4) Administrative penalties shall be assessed in amounts not to exceed $100 per day for a first violation, $200 per day for a second violation within one year, and $500 per day for each additional violation within one year.
(Added by Ord. 409-96, App. 10/21/96; amended by Ord. 448-97, App. 12/5/97; Ord. 322-00, File No. 001917, App. 12/28/2000)
(a) Any person who fails to comply with an order from the Director under this Article shall be guilty of a misdemeanor. Each violation shall be considered a separate misdemeanor punishable by a fine not exceeding $1,000, or imprisonment not to exceed six months in the County Jail, or both.
(b) The court, in determining criminal penalties, shall consider the extent of harm caused by the violation(s) to the order, the nature and persistence of the violation(s), the length of time over which the violation(s) occur(s), the frequency of past violations, any action taken to mitigate the violation, the financial burden to the violator, and such other factors as deemed relevant and material.
(Added by Ord. 409-96, App. 10/21/96)
DIVISION XI
IMPLEMENTATION
IMPLEMENTATION
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