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(a) Administrative Penalties; Citations. An administrative penalty may be assessed for a violation of the provisions of this Article as specified below. The penalty may be assessed by means of an administrative citation issued by the Director of the Office of Labor Standards Enforcement.
(b) Administrative Penalty Amounts. In addition to all other civil penalties provided for by law, the following violations shall be subject to administrative penalties in the amounts set forth below:
VIOLATION | PENALTY AMOUNT |
VIOLATION | PENALTY AMOUNT |
Failure to maintain payroll records or to retain payroll records for four years – Labor and Employment Code Section 1.5(c) | $500.00 |
Failure to allow the Office of Labor Standards Enforcement to inspect payroll records – Labor and Employment Code Section 1.5(c) | $500.00 |
Retaliation for exercising rights under Minimum Wage Ordinance – Labor and Employment Code Section 1.6 | $1,000.00 |
The Penalty for retaliation is $1,000.00 per employee. | |
Failure to Post notice of Minimum Wage rate – Labor and Employment Code Section 1.5(b) | $500.00 |
Failure to provide notice of investigation to employees – Labor and Employment Code Section 1.7(b) | |
Failure to post notice of violation to public – Labor and Employment Code Section 1.7(e) | |
Failure to provide employer’s name, address, and telephone number in writing – Labor and Employment Code Section 1.5(b) | |
The penalty amounts shall be increased cumulatively by fifty percent (50%) for each subsequent violation of the same provision by the same employer or person within a three (3) year period. The maximum penalty amount that may be imposed by administrative citation in a calendar year for each type of violation listed above shall be $5,000 or $10,000 if a citation for retaliation is issued. In addition to the penalty amounts listed above, the Office of Labor Standards Enforcement may assess enforcement costs to cover the reasonable costs incurred in enforcing the administrative penalty, including reasonable attorneys’ fees. Enforcement costs shall not count toward the $5,000 annual maximum.
(a) Separate and Continuing Violations; Penalties Paid Do Not Cure Violations. Each and every day that a violation exists constitutes a separate and distinct offense. Each section violated constitutes a separate violation for any day at issue. If the person or persons responsible for a violation fail to correct the violation within the time period specified on the citation and required under Section 1.18, the Director of the Office of Labor Standards Enforcement may issue subsequent administrative citations for the uncorrected violation(s) without issuing a new notice as provided in Section 1.18(b). Payment of the penalty shall not excuse the failure to correct the violation nor shall it bar any further enforcement action by the City. If penalties and costs are the subject of administrative appeal or judicial review, then the accrual of such penalties and costs shall be stayed until the determination of such appeal or review is final.
(b) Payments to City; Due Date; Late Payment Penalty. All penalties assessed under Section 1.16 shall be payable to the City and County of San Francisco. Administrative penalties and costs assessed by means of an administrative citation shall be due within thirty (30) days from the date of the citation. The failure of any person to pay an administrative penalty and costs within that time shall result in the assessment of an additional late fee. The amount of the late fee shall be ten (10) percent of the total amount of the administrative penalty assessed for each month the penalty and any already accrued late payment penalty remains unpaid.
(c) Collection of Penalties; Special Assessments. The failure of any person to pay a penalty assessed by administrative citation under Section 1.16 within the time specified on the citation constitutes a debt to the City. The City may file a civil action, create and impose liens as set forth below, or pursue any other legal remedy to collect such money.
(d) Liens. The City may create and impose liens against any property owned or operated by a person who fails to pay a penalty assessed by administrative citation. The procedures provided for in Chapter 10, Article XX of the Administrative Code shall govern the imposition and collection of such liens.
(e) Payment to City. The Labor Standards Enforcement Officer has the authority to require that payment of back wages found to be due and owing to employees be paid directly to the City and County of San Francisco for disbursement to the employees. The Controller shall hold the back wages in escrow for workers whom the Labor Standards Enforcement Officer, despite his/her best efforts, including any required public notice, cannot locate; funds so held for three years or more shall be dedicated to the enforcement of the Minimum Wage Ordinance or other laws enforced by the Office of Labor Standards Enforcement.
(Added as Administrative Code Sec. 12R.17 by Ord. 205-06, File No. 060247, App. 7/25/2006; amended by Ord. 175-11, File No. 110594, App. 9/16/2011, Eff. 10/16/2011; Ord. 75-14, File No. 140226, App. 5/28/2014, Eff. 6/27/2014; Proposition J, 11/4/2014; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(a) Issuance of Citation. The Director has the authority to issue an administrative citation for any violation of this Article that is identified in Section 1.16(b). The administrative citation shall be issued on a form prescribed by the Office of Labor Standards Enforcement.
(b) Notice and Opportunity to Cure. In order to facilitate compliance, the Director of the Office of Labor Standards Enforcement (“Director”) or his or her designee may notify any person in violation of the Code provisions identified in Section 1.16(b) of such violation prior to the issuance of an administrative citation. Regardless of the manner of service of the notice under Section 1.19, the Director or his or her designee may post the notice of violation by affixing the notice to a surface in a conspicuous place on property that is (1) the person’s principal place of business in the City, or (2) if the person’s principal place of business is outside the City, the fixed location within the City from or at which the person conducts business in the City, or (3) if the person does not regularly conduct business from a fixed location in the City, one of the following: (i) the location where the person maintains payroll records if the notice of violation is for violation of Section 1.5(c), or (ii) the jobsite or other primary location where the person’s employees perform services in the City at the time the notice is posted. The notice of violation shall specify the action required to correct or otherwise remedy the violation(s). At the discretion of the Director or his or her designee, the person or persons responsible for the violation may be allowed ten (10) days from the date of the notice of violation to establish that no violation occurred or such person or persons are not responsible for the violation, or correct or otherwise remedy the violation; provided, however, that the Director may, in his or her discretion, assign a longer period, not to exceed twenty-one (21) days, within which to correct or otherwise remedy each violation, or establish that no violation occurred or such person or persons are not responsible for the violation. The Director may consider the cost of correction and the time needed to obtain information, documents, data and records for correction in assigning a specific period of time within which to correct or otherwise remedy each violation, or obtain and submit evidence that no violation occurred or such person or persons are not responsible for the violation.
Service of a notice of violation and an administrative citation under Section 1.16 may be accomplished as follows:
(a) The Director or his or her designee may obtain the signature of the person responsible for the violation to establish personal service of the citation; or
(b) (1) Director or his or her designee shall post the citation by affixing the citation to a surface in a conspicuous place on the property described in Section 1.18. Conspicuous posting of the citation is not required when personal service is accomplished or when conspicuous posting poses a hardship, risk to personal health or safety or is excessively expensive; and
(2) The Director or his or her designee shall serve the citation by first class mail as follows:
(i) The administrative citation shall be mailed to the person responsible for the violation by first class mail, postage prepaid, with a declaration of service under penalty of perjury; and
(ii) A declaration of service shall be made by the person mailing the administrative citation showing the date and manner of service by mail and reciting the name and address of the person to whom the citation is issued; and
(iii) Service of the administrative citation by mail in the manner described above shall be effective on the date of mailing.
(Added as Administrative Code Sec. 12R.19 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
The administrative citation under Section 1.16 shall include all the following:
(1) A description of the violation;
(2) The date and location of the violation(s) observed;
(3) A citation to the provisions of law violated;
(4) A description of corrective action required;
(5) A statement explaining that each day of a continuing violation may constitute a new and separate violation;
(6) The amount of administrative penalty imposed for the violation(s);
(7) A statement informing the violator that the fine shall be paid to the City and County of San Francisco within thirty (30) days from the date on the administrative citation, the procedure for payment, and the consequences of failure to pay;
(8) A description of the process for appealing the citation, including the deadline for filing such an appeal; and
(9) The name and signature of the Director.
(Added as Administrative Code Sec. 12R.20 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(a) Period of Limitation for Appeal. Persons receiving an administrative citation may appeal it within fifteen (15) days from the date the citation is served. The appeal must be in writing and must indicate a return address. It must be accompanied by the penalty amount, specifying the basis for the appeal in detail, and must be filed with both the Office of Labor Standards Enforcement and the Controller’s Office as indicated in the administrative citation.
(b) Hearing Date. As soon as practicable after receiving the written notice of appeal and the penalty amount, the Controller or his or her designee shall promptly select a hearing officer (who shall not be an employed in the Office of Labor Standards Enforcement) to hear and decide the administrative appeal. The hearing officer shall fix a date, time and place for the hearing on the appeal. Written notice of the time and place for the hearing may be served by first class mail, at the return address indicated on the written appeal. Service of the notice must be made at least ten (10) days prior to the date of the hearing to the person appealing the citation. The hearing shall be held no later than thirty (30) days after service of the notice of hearing, unless that time is extended by mutual agreement of the parties.
(c) Notice. Except as otherwise provided by law, the failure of any person with an interest in property affected by the administrative citation, or other person responsible for a violation, to receive a properly addressed notice of the hearing shall not affect the validity of any proceedings under this Article. Service by first class mail, postage prepaid, shall be effective on the date of mailing.
(d) Failure to Appeal. Failure of any person to file an appeal in accordance with the provisions of this Section or to appear at the hearing shall constitute a failure to exhaust administrative remedies and a forfeiture of the penalty amount previously remitted.
(e) Submittals for the Hearing. No later than five (5) days prior to the hearing, the person to whom the citation was issued and the Office of Labor Standards Enforcement shall submit to the hearing officer, with simultaneous service on the opposing party, written information including, but not limited to, the following: the statement of issues to be determined by the hearing officer and a statement of the evidence to be offered and the witnesses to be presented at the hearing.
(f) Conduct of Hearing. The hearing officer appointed by the Controller or the Controller’s designee shall conduct all appeal hearings under this Article. The Office of Labor Standards Enforcement shall have the burden of proof in such hearings. The hearing officer may accept evidence on which persons would commonly rely in the conduct of their serious business affairs, including but not limited to the following:
(1) A valid citation shall be prima facie evidence of the violation;
(2) The hearing officer may accept testimony by declaration under penalty of perjury relating to the violation and the appropriate means of correcting the violation;
(3) The person responsible for the violation, or any other interested person, may present testimony or evidence concerning the violation and the means and time frame for correction.
The hearing shall be open to the public and shall be tape-recorded. Any party to the hearing may, at his or her own expense, cause the hearing to be recorded and transcribed by a certified court reporter. The hearing officer may continue the hearing and request additional information from the Office of Labor Standards Enforcement or the appellant prior to issuing a written decision.
(g) Hearing Officer’s Decision; Findings. The hearing officer shall make findings based an the record of the hearing and issue a decision based on such findings within fifteen (15) days of conclusion of the hearing. The hearing officer’s decision may uphold the issuance of a citation and penalties stated therein, may dismiss a citation, or may uphold the issuance of the citation but reduce, waive or conditionally reduce or waive the penalties stated in a citation or any late fees assessed if mitigating circumstances are shown and the hearing of officer finds specific grounds for reduction or waiver in the evidence presented at the hearing. The hearing officer may impose conditions and deadlines for the correction of violations or the payment of outstanding civil penalties. Copies of the findings and decision shall be served upon the appellant and the Office of Labor Standards Enforcement by certified mail.
(h) Hearing Officer’s Decision. The decision of the hearing officer is final. If the hearing officer concludes that the violation charged in the citation did not occur or that the person charged in the citation was not the responsible party, the Office of Labor Standards Enforcement shall refund or cause to be refunded the penalty amount to the person who deposited such amount. The hearing officer’s decision shall be served on the appellant by certified mail.
(Added as Administrative Code Sec. 12R.21 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
The Office of Labor Standards Enforcement may promulgate and enforce rules and regulations, and issue determinations and interpretations relating to the administrative penalty and citation system pursuant to Sections 1.16 through 1.20, inclusive. The Controller may promulgate and enforce rules and regulations, and issue determinations and interpretations relating to the conduct of administrative appeals under Section 1.21. Any rules and regulations promulgated by the Office of Labor Standards Enforcement or Controller shall be approved as to legal form by the City Attorney, and shall be subject to not less than one noticed public hearing. The rules and regulations shall become effective 30 days after receipt by the Clerk of the Board of Supervisors, unless the Board of Supervisors by resolution disapproves or modifies the regulations. The Board of Supervisors’ determination to modify or disapprove a rule or regulation submitted by the Office of Labor Standards Enforcement or Controller shall not impair the ability of the Office of Labor Standards Enforcement or Controller to resubmit the same or similar rule or regulation directly to the Board of Supervisors if the Office of Labor Standards Enforcement or Controller determines it is necessary to effectuate the purposes of this Article.
(Added as Administrative Code Sec. 12R.22 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
(a) Procedures. After receipt of the decision of the hearing officer under Section 1.21, the appellant may file an appeal with the superior court pursuant to California Government Code Section 53069.4. The appeal shall be submitted within twenty (20) days of the date of mailing of the hearing officer’s decision, with the applicable filing fee. The appeal shall state the reasons the appellant objects to the findings or decision.
(b) Review. The superior court shall conduct a de novo hearing, except that the contents of the Office of Labor Standards Enforcement’s file (excluding attorney client communications and other privileged or confidential documents and materials that are not discoverable or may be excluded from evidence in judicial proceedings under the Evidence Code, Civil Code, Code of Civil Procedure or other applicable law) shall be received into evidence. A copy of the notice of violation and imposition of penalty shall be entered as prima facie evidence of the facts stated therein.
(c) Filing Fee. The superior court filing fee shall be twenty-five ($25.00). If the court finds in favor of the appellant, the amount of the fee shall be reimbursed to the appellant by the City and County of San Francisco. Any deposit of penalty shall be refunded by the City and County of San Francisco in accordance with the judgment of the court.
(Added as Administrative Code Sec. 12R.23 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
The administrative citation procedures established in this Article shall be in addition to any other criminal, civil, or other remedy established by law which may be pursued to address violations of this Article. An administrative citation issued pursuant to this Article shall not prejudice or adversely affect any other action, civil or criminal, that may be brought to abate a violation or to seek compensation for damages suffered.
(Added as Administrative Code Sec. 12R.24 by Ord. 205-06, File No. 060247, App. 7/25/2006; redesignated by Ord. 221-23, File No. 230835, App. 11/3/2023, Eff. 12/4/2023, Oper. 1/4/2024)
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