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(a) Purpose and Intent.
(1) The Board of Supervisors finds that enforcement of the Planning Code is vital to ensuring the quality of life in San Francisco's neighborhoods and in the City as a whole. A comprehensive code enforcement program using a combination of judicial and administrative remedies is likely to be the most successful approach to secure compliance with Planning Code requirements. Therefore, it is in the best interests of the City and its citizens to provide an alternative method of administrative enforcement that is designed to induce compliance with the Planning Code through action by the Director to issue and record orders of abatement and assess administrative penalties.
(2) The alternative methods of administrative enforcement established by this Section do not replace but rather are intended to supplement the enforcement remedies established in Section 176 and other penalties or methods of enforcement, both civil and criminal, that are authorized by law. The provision for administrative penalties is not intended to be punitive in nature but is intended to secure compliance with the Planning Code and to compensate the City for its costs of enforcement.
(3) By establishing multiple enforcement mechanisms, it is intended that the Department will elect to use the mechanism most likely to achieve an expeditious and effective resolution of the violation in a particular case with the best use of the City's resources. In exercising this discretion, the Department should usually elect to use the Director's authority under this Section 176.1 in those cases where the legal or factual issues are not complex and where an interpretation of the Planning Code is not at issue, and reserve the enforcement mechanisms in Section 176 for those cases that are more complex or where interpretations of the Planning Code are at issue.
(b) Authority of the Director. The Director may enforce against violations of the Planning Code through the alternative administrative remedies of this Section 176.1. The Director may designate a member of Department staff to act under his or her authority with respect to any action the Director is authorized to take in this Section 176.1.
If the Department elects to use the administrative remedies of this Section, the Department must use the abatement process set forth in this Section. However, as provided in Section (d)(3) below, the Department is not precluded from pursing the alternative remedies of Section 176 if abatement of the violation has not been achieved under this Section 176.1. In addition, the Department's election of this process shall not affect the City Attorney's Charter authority to pursue a civil action. If the City Attorney filed a civil action against the property prior to the Director's issuance of the notice of violation under this Section 176.1, at the City Attorney's election the process under this Section 176.1 shall be terminated and abatement of the alleged violations shall be pursued by the City Attorney in the ongoing civil action.
(c) Notice of Violation.
(1) Issuance. After the Department has determined that a violation of this Code exists, the Director shall give written notice of the violation to the responsible party. For purposes of this Section 176.1, "responsible party" means the owners(s) of the real property on which the code violation is located, as listed in the records of the San Francisco Assessor, and the current leaseholder if different from the current owner(s) of the real property.
(2) Contents of Notice. The notice shall cite to this Section 176.1 and describe the violation(s) with specificity, including: the date and location of the violations and the approximate time the violations were observed; citation to applicable Code sections; and a description of how what was observed violated the Code sections. The notice of violation shall state that the responsible party has thirty days from the date of service to (i) correct all violations or (ii) file an application for a building permit or other authorization necessary to abate the violations and proceed diligently to obtain all approvals and complete the work, as specified by the Director's order and within the time periods required.
The notice of violation shall inform the responsible party that if the action required in the notice of violation is not taken by the stipulated deadline, the Director will (i) will issue an order of abatement, (ii) cause the order of abatement to be recorded against the property's records in the Office of the Recorder of the City and County of San Francisco, and (iii) assess administrative penalties under Section 176.1(e). The notice of violation shall also inform the responsible party of the right to request a Director's hearing under Subsection (d)(3) below prior to issuance of an order of abatement and assessment of administrative penalties. Service of the notice of violation shall be as specified in Section (g) below.
(d) Order of Abatement.
(1) Issuance; Administrative Penalties; Request for Hearing. If a property remains in violation after the deadlines established in the notice of violation, the Director shall issue an order of abatement and assess administrative penalties against the responsible party by following the procedure set forth in Section 176.1(e). The order of abatement shall state the amount of penalty imposed, explain how and when the penalty shall be paid, and describe the consequences of failure to pay the penalty. The order of abatement shall inform the responsible party of the right to appeal the order of abatement and assessment of administrative penalties to an administrative law judge under Subsection (f) below. The Department shall not proceed to enforce the order of abatement or collect the administrative penalties until the time for appeal has passed or the order and penalties have been upheld on appeal.
(2) Recording. The Director shall record the order of abatement against the property's records in the Office of the Recorder of the City and County of San Francisco. The Department shall not record the order of abatement until the time for appeal has passed or the Director's decision has been upheld on appeal. Within fourteen business days after the violation has been finally abated and all fees and penalties have been paid, the Director shall record a notice of compliance that cancels the order of abatement.
(3) Request for Hearing. Prior to expiration of the compliance deadlines set forth in the notice of violation, the responsible party may request a Director's hearing in order to show cause why the order of abatement should not issue and administrative penalties should not be assessed. The responsible party may also request that the Department not proceed with abatement proceedings under this Section 176.1 but instead proceed under Section 176. The Director's decision to continue proceeding under Section 176.1 is final and not appealable.
The Director may designate a member of Department staff to may act in his or her place as the hearing officer. The hearing officer shall have the same authority as the Director to hear and decide the case and to make any order provided for in this section. The responsible party may waive the right to a Director's hearing and proceed directly to an appeal under Subsection (f) below after the order of abatement is issued and administrative penalties have been assessed. If the responsible party requests a Director's hearing, the following procedure shall apply:
(A) Request for hearing; notice. The responsible party shall submit a written request for a Director's hearing prior to expiration of the compliance deadlines set forth in the notice of violation on a form or in the manner required by the Director. The Director shall send a notice of the date, hour, and place of the hearing to the responsible party at the address specified in the request for hearing and to any member of the public who has expressed an interest in the matter.
(B) Decision. The Director or the Director's designee, after a full and fair consideration of the evidence and testimony received at the hearing, shall render within thirty days following the conclusion of the hearing a written decision which either dismisses the proceedings or orders issuance of the order of abatement and assessment of the administrative penalties. In rendering a decision, the Director or the Director's designee shall consider the following:
(i) whether the responsible party was properly identified;
(ii) whether the accrual dates for the administrative penalties are accurate;
(iii) the amount of documented staff time spent in order to secure abatement of the violation;
(iv) the nature of the violation;
(v) the duration of the violation;
(vi) efforts made by the responsible party to correct the violation;
(vii) the impact of the violation upon the community;
(viii) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;
(ix) the responsible party's good faith efforts to comply;
(x) whether the violation is easy to correct; and
(xi) such other factors as the Director or the Director's designee may consider relevant.
(e) Administrative Penalties.
(1) Assessment. In an order of abatement issued under Subsection (d) above, the Director shall assess administrative penalties for violation of the Planning Code. A penalty shall be assessed for each violation observed. Payment of the penalty shall not excuse failure to correct the violations nor shall it bar further enforcement action by the City.
(2) Amount of Penalty. The penalty assessed for each violation shall be $100.00 if the violation has not been corrected within thirty days from the date of service of the notice of violation, $250.00 if the violation has not been corrected within sixty days from the date of service of the notice of violation, and $500.00 if the violation has not been corrected within ninety days from the date of service of the notice of violation. If at the end of the 90-day period the violation has not been corrected and the matter has not been appealed, the Zoning Administrator may exercise his or her discretion to initiate abatement proceedings under Section 176 of this Code or to refer the matter to the City Attorney or District Attorney for prosecution.
(3) Failure to Pay the Administrative Penalties. If the responsible party fails to pay the administrative penalties to the Department within thirty days of service of the order of abatement, or within thirty days of the date the penalties have been upheld on appeal, the Director may take such action to collect the fees as he or she deems appropriate, including (i) referral of the matter to the Bureau of Delinquent Revenue Collection under Article V, Section 10.39 of the San Francisco Administrative Code, initiation of lien proceedings under Article XX, Section 10.230 et seq. of the San Francisco Administrative Code, and/or a requesting that the City Attorney pursue collection of the penalties imposed against the Responsible Party in a civil action. The City Attorney may request its attorneys' fees in any action that he or she pursues to collect the administrative penalties or to enforce collection of the penalties.
(f) Appeal of Order of Abatement and Administrative Penalties.
(1) Method of Appeal; Fee. The responsible party may appeal the issuance of an order of abatement and any the administrative penalties assessed in the order by filing a written request in the form required by the Department within fifteen days of the service of the order. The appeal shall describe in detail why the appellant believes that the order of abatement was issued in error or why the administrative penalty was assessed in error or should be modified.
The appeal shall be filed on a form or in the manner required by the Director and be accompanied by the payment of a fee of $400.00. The Department shall increase this fee on an annual basis at a rate equal to that of the Consumer Price Index (CPI). In addition to the appeal fee and administrative penalties assessed in the order of abatement, the Director shall assess upon the responsible party the Department's cost of preparation for and appearance at the hearing and all prior and subsequent attendant costs of the enforcement action. These fees shall be waived if the responsible party would qualify for a waiver of court fees and costs under California Government Code Section 68511.3.
(2) Scheduling of Hearing. Upon timely filing of the appeal and payment of the appeal fee, the Director shall schedule a hearing before an administrative law judge, who shall serve as the hearing officer. The hearing shall be scheduled for a date no later than thirty days after the request. The Director shall notify the responsible party and the appellant, if different from the responsible party, of the hearing date, hour, and place of the hearing as soon as the hearing is scheduled and in no event later than ten days prior to the hearing. Notice of the hearing shall also be given to any member of the public who has expressed interest in the matter. Notice shall be given in the manner specified in Subsection (g) below.
(3) Documentation to be Provided to the Administrative Law Judge. The Director shall provide to the administrative law judge no later than ten days prior to the hearing a copy of the Department's case file, which shall include at a minimum the notice of violation, the order of abatement, other written communications between the Department and the responsible party, and communications submitted by interested members of the public concerning the case. The Director may also submit, but is not required to do so, written arguments on why the Director's order should be upheld. Anything submitted to the administrative law judge by either party to the appeal shall be served upon the other party at the same time and in the same manner as it is submitted to the administrative law judge.
(4) Hearing and Decision. The administrative law judge shall hold a public hearing to hear the appeal of the Director's order of abatement and/or assessment of administrative penalties. In considering the appeal, the administrative law judge shall consider the following:
(A) whether the responsible party was properly identified;
(B) whether the accrual dates for the administrative penalties are accurate;
(C) the amount of documented staff time spent in order to secure abatement of the violation;
(D) the nature of the violation;
(E) the duration of the violation;
(F) efforts made by the responsible party to correct the violation;
(G) the impact of the violation upon the community;
(H) any instance in which the responsible party has been in violation of the same or similar laws at the same or other locations in the City and County of San Francisco;
(I) the responsible party's good faith efforts to comply; and
(J) whether the violation is easy to correct; and
(K) such other factors as the administrative law judge may consider relevant.
The decision of the administrative law judge shall be based upon, but not limited to, provisions of the San Francisco Planning Code, any final Zoning Administrator interpretations, the San Francisco Building Code, building permits issued by the City, and any final decisions of the San Francisco Board of Appeals concerning the subject building or property.
The administrative law judge shall issue a written decision on the appeal within thirty days of the conclusion of the hearing. The decision shall be served on the responsible party by certified mail by deposit in the United States mail in a sealed envelope, postage prepaid, addressed to the responsible party at the address provided to the administrative law judge by the responsible party. Service shall be considered to have been completed at the time of deposit in the United States mail. A copy of the decision shall also be mailed to the Director of Planning at the offices of the Planning Department.
(5) Continuance of Hearing. The parties may by mutual agreement continue the hearing date. If the parties do not mutually agree on another hearing date, the party wanting a continuance may request the administrative law judge to grant the continuance by submitting a written request for a continuance and demonstrating good cause with supporting documentation. A written request for a continuance shall be made at the earliest possible date but in no event less than five days before the hearing unless unforeseen circumstances prevent such notification. The party requesting the continuance shall notify any other parties of the request in the most expeditious manner and provide them with copies of the complete request and the supporting documentation. A request for continuance made at the time of the hearing may be granted only in those exceptional cases where the requesting party demonstrates both good cause and that the party was unable through no fault of their own to make the request at an earlier time. The administrative law judge may grant more than one continuance, but the combination of all continuances granted shall be for no longer than forty-five days.
For purposes of this section, "good cause" may include:
(A) the illness of a party, an attorney or other authorized representative of a party, or a material witness of a party;
(B) verified travel of a party, attorney, or material witness outside of San Francisco scheduled before receipt of the notice of hearing;
(C) failure to receive timely notice of the hearing date; or
(D) any other reason which makes it impossible or infeasible to appear on the scheduled date due to unforeseen circumstances or verified pre-arranged plans that cannot be changed. Mere inconvenience in appearing shall not be considered sufficient good cause.
In deciding whether to grant the request for continuance, the administrative law judge shall also take into consideration the nature of the alleged violation and its impact on neighboring properties and the general public if the alleged violations are allowed to continue for an additional period of time.
(6) Finality and Effect of the Decision. The decision of the administrative law judge shall be the City's final administrative action on the matter and there shall be no further administrative appeals.
(7) Compliance with Decision. If the administrative law judge upholds the Director's order of abatement in whole or in part, the responsible party shall comply with the decision and pay to the Department any administrative penalties that were upheld within thirty days of the date the decision was served. If the responsible party is proceeding diligently to obtain required permits and to complete the abatement work, the Director may grant additional time to comply with the decision. If the responsible party fails to comply with the decision and/or to pay the administrative penalties within the time period required, the Director may take such action to collect the fees and enforce the decision as he or she deems appropriate, including (i) referral of the matter to the Bureau of Delinquent Revenue Collection under Article V, Section 10.39 of the San Francisco Administrative Code, initiation of lien proceedings under Article XX, Section 10.230 et seq. of the San Francisco Administrative Code, and/or a requesting that the City Attorney pursue enforcement of the decision and collection of the penalties imposed against the responsible party in a civil action.
If the administrative law judge overrules the Director and determines that the order of abatement was issued in error, the Department shall consider the case abated and all administrative penalties rescinded.
(8) Rescission of Order of Abatement or Withdrawal of Appeal Prior to the Hearing. If the Director rescinds the order of abatement in its entirety prior to the hearing, the case shall be considered abated and the appeal withdrawn, and any assessed administrative penalties shall be considered rescinded. The Department shall refund to the responsible party in a timely manner any appeal fees that he or she has paid.
If the responsible party elects to withdraw the appeal and comply with the order of abatement, the Department shall refund in a timely manner any appeal fees that he or she has paid. Any administrative penalties already assessed must be paid in full before the Department will consider the case abated. If the responsible party withdraws the appeal within ten days of the date the appeal was filed, he or she may apply to the Director in writing for a reduction in the amount of any assessed administrative penalties based upon the number of days between the filing of the appeal and its withdrawal. Any decision by the Director to grant or deny the request shall be at the Director's sole discretion and is not appealable.
(g) Service of Notices and Orders; Proof of Service. Service of a notice of violation, order of abatement, or other notice or order required by this Section 176.1 shall be given to the owner of the property or other person to be notified by depositing the notice or order in the United States mail in a sealed envelope, postage prepaid, addressed to the person to be notified at that person's last known business or residence address as shown in the Assessor's records. Service by mail shall be considered to have been completed at the time of deposit in the United States mail.
If the identity of the person or business entity owning the property in question is unknown, the notice of violation shall be posted in a conspicuous location on, or if access to the property is not available in a conspicuous location as close as practicable to, the building or property. The notice shall also be hand delivered to the person, if any, in real or apparent charge and control of the subject premises or property. Once the identity of the person or business entity is known, the notice of violation shall be mailed to such person or business entity without the delay affecting the time limits, fees, or administrative penalties imposed by this Section 176.1.
Proof of giving any notice may be made by the certificate of any officer or employee of the City and County of San Francisco or by affidavit of any person over the age of 18 years, which shows service in conformity with the San Francisco Municipal Code or any other applicable provisions of law.
(h) Failure of the City to Comply with Timelines. The failure of the Director, the Department, or the administrative law judge to comply with any of the timelines set forth in this Section 176.1 shall not render the code violations unenforceable.
(i) Use of Fees and Penalties Collected. All fees and penalties collected under this Section 176.1 shall be deposited in the Planning Code Enforcement Fund established in Administrative Code Section 10.100.166 and shall be used for the purposes specified in that section.
(j) Remedies under this Section 176.1 are non-exclusive, and the City Attorney may at any time institute civil proceedings for injunctive and monetary relief, including civil penalties, against any person for violations of the Planning Code, without regard to whether the Planning Director has issued a notice of violation, scheduled or held a hearing on a notice of violation, issued an order of abatement and/or an assessment of administrative penalties, or whether an appeal has been filed or decided.
(Added by Ord. 57-08, File No. 071651, App. 4/10/2008; amended by Ord. 60-16 , File No. 151085, App. 4/27/2016, Eff. 5/27/2016, Oper. 6/1/2016)
Division (j) added; Ord. 60-16 , Oper. 6/1/2016.