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“ABC” shall mean the California Department of Alcoholic Beverage Control.
“ABC Licensee” shall mean a Retail Establishment that holds an active license from the ABC to sell liquor.
“City” shall mean the City and County of San Francisco.
“Director” shall mean the Director of the Department of Public Health, or the Director’s designee.
“DPH” shall mean the Department of Public Health.
“OEWD” shall mean the Office of Economic and Workforce Development.
“Restricted Hours” shall mean the period between 2:00 a.m. and 5:00 a.m., seven days a week, and including holidays for ABC Licensees, and between 12:00 a.m. and 5:00 a.m. for Retail Establishments that do not hold an ABC License.
“Retail Establishment” shall mean any business in the Tenderloin Public Safety Area that operates as either or both of the following: 1) a market that sells any prepackaged food items and/or produce, including but not limited to any establishment that has or qualifies for a permit from the Department of Public Health to operate as a Food Product and Marketing Establishment, as defined in Section 440 of the Health Code; and/or 2) an establishment that sells any Tobacco Product, as defined in Section 19H.2 of the Health Code.
“Tenderloin Public Safety Area” shall mean the area of the City bounded to the north by O’Farrell Street, to the south by McAllister Street, to the east by Jones Street, and to the west by Polk Street, including both sides of the boundary streets.
(a) For a two-year period beginning on the effective date of this Article 58, no Retail Establishment as defined in section 5801 that is located in the Tenderloin Public Safety Area may be open to the public during applicable Restricted Hours.
(b) At least 15 days prior to the start of the pilot program, DPH and OEWD shall contact all Retail Establishments (including ABC Licensees) to explain the new restrictions and restricted hours. Such contact shall be conducted in the appropriate language to ensure that the operator of the establishment is able to understand the new restrictions. In addition, OEWD shall create a way for businesses in the Tenderloin Public Safety Area to provide feedback to the City regarding the pilot program, its enforcement, and its effects.
(a) Enforcing Department. This Article 58 shall be administered and enforced by the Department of Public Health (DPH). The Director may adopt rules, regulations, and guidelines to carry out the provisions and purposes of this Article.
(b) Supporting Department. The Police Department shall ensure that its members document violations of Section 5802 in incident reports or other formats, such as body-worn camera footage, provided those other formats capture the information typically included in an incident report, and shall refer documented violations to DPH for enforcement. The Police Department shall assist in DPH’s administrative enforcement as requested by DPH, including by providing incident reports or equivalent documentation and other evidence when requested by DPH, and by making Police Department members available to provide declarations and/or testimony at hearings when requested by DPH.
(a) If the Director determines that a Retail Establishment (including an ABC Licensee) has violated Section 5802, the Director may issue a Notice of Violation to the Retail Establishment, the owner of real property where the violation occurred, and/or other person(s) the Director deems responsible for causing the violation (collectively, “Responsible Parties”). The issuance of the Notice of Violation may be by hand delivery, registered mail, or electronic mail. The Notice of Violation may be directed at one or more Responsible Parties; use herein of the singular term “Responsible Party” is merely for ease of reference.
(b) The Notice of Violation shall include the following information:
(1) That the Director has determined that the Retail Establishment has operated in violation of this Article 58;
(2) The alleged acts or failures to act that constitute the basis for the Director’s determination;
(3) That the Director intends to take enforcement action against the Responsible Party, and the nature of that action, including the administrative penalty and enforcement costs to be imposed;
(4) That the Responsible Party has the right to request a hearing before the Director within 15 days after the Notice of Violation is issued, which request must be made in writing.
(c) If no request for a hearing is filed with the Director within the appropriate period, the right to request a hearing shall be deemed waived, and the Director’s determination shall become final and effective 15 days after the Notice of Violation was issued. The Director shall issue an order imposing the enforcement action, and shall send the order to the Responsible Parties by hand delivery, registered mail, or electronic mail. In subsequent civil proceedings, such violations shall be deemed not to have been corrected. The failure of the Responsible Party to request a hearing shall constitute a failure to exhaust administrative remedies and shall preclude the Responsible Party from obtaining judicial review of the validity of the enforcement action.
(d) Upon a timely request for a hearing, the Director shall, within 15 days of the request, notify the Responsible Party of the date, time, and place of the hearing. Such notification may be made by hand delivery, registered mail, or electronic mail. The Director shall make available to the Responsible Party any evidence obtained in support of the Notice of Violation. Such hearing shall be held no later than 60 days after the Director receives the request, unless time is extended by mutual agreement of the Responsible Party and the Director.
(e) The Director shall serve as hearing officer and conduct the hearing, or the Director shall designate another person to serve as hearing officer, who shall have the same authority as the Director to hear and decide the case and make any orders consistent with this Article 58. The Responsible Party may present evidence for consideration, subject to any rules adopted by the hearing officer for the orderly conduct of the hearing. Within 60 days of the conclusion of the hearing, the hearing officer shall render a decision in the form of a written order, which the Director shall promptly serve on the Responsible Parties. Service of the written order may be made by hand delivery, registered mail, or electronic mail. The order shall state whether the Notice of Violation has been upheld (in whole or in part), and the enforcement action taken against each party.
(f) If the order directs the Responsible Party to pay an administrative penalty and/or enforcement costs, such amount shall be paid within fifteen days from the mailing of the order; the order shall inform the Responsible Party of such deadline for payment.
(a) Violations Subject to Penalties. For purposes of assessing penalties for violation of Section 5802, each one-hour period within Restricted Hours during which, at any time, a Retail Establishment is open to the public in violation of Section 5802 is a separate violation. A Responsible Party may not be cited or found civilly liable for multiple violations of Section 5802 in a single 12 a.m.-to-5 a.m. period (or 2 a.m.-to 5-a.m. period in the case of ABC Licensees), unless (1) the violations are at least one hour apart from one another, and (2) at the time of the preceding violation, the Responsible Party receives warning of its violation of Section 5802 and continues to operate or operates again in violation of Section 5802 after such warning has been given.
(b) Penalty Amounts. In setting the amount of the administrative penalty, which shall not exceed $1,000 per violation, the Director may consider any one or more mitigating or aggravating circumstances presented, including, but not limited to, the following: the nature and seriousness of the misconduct giving rise to the violation, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the Responsible Party’s misconduct, and the responsible party’s assets, liabilities and net worth.
(c) Enforcement Costs. In any action where a violation is found, the Director shall assess DPH’s costs of enforcement against the Responsible Party.
(d) Payment and Collection of Administrative Penalty and Enforcement Costs. Any administrative penalty and/or enforcement costs assessed under this Article 58 is a debt to the City and shall be paid to the Treasurer of the City and County of San Francisco. Any amount paid late shall be subject to an additional late fine of 10% on the unpaid amount. The sum of the unpaid amount and the 10% late fine shall accrue interest at the rate of 1% per month (or fraction thereof) until fully paid; any partial payments made shall first be applied to accrued interest. The City may file a civil action or pursue any other legal remedy to collect such unpaid amount, fine, and interest. In any civil action for collection, the City shall be entitled to obtain a judgment for the unpaid amounts, fine, and interest, and for the costs and attorneys’ fees incurred by the City in bringing such civil action.
(e) Lien for Administrative Penalty. Where an activity or condition on San Francisco real property has caused, contributed to, or been a substantial factor in causing the violation, the Director may initiate proceedings to make any unpaid administrative penalty, enforcement costs, fine, and interest, and all additional authorized costs and attorneys’ fees, a lien on the property. Such liens shall be imposed in accordance with Administrative Code Sections 10.230-10.237, or any successor provisions. Before initiating lien proceedings, the Director shall send a request for payment under Administrative Code Section 10.230A.
A Retail Establishment’s operation in violation of Section 5802 shall be a public nuisance, which may be remedied as provided by law, including, but not limited to, the provisions of Article 3 (commencing with Section 11570) of Chapter 10 of Division 10 of the California Health and Safety Code.
(a) The City Attorney may at any time institute civil proceedings for injunctive and monetary relief, including civil penalties, against any Retail Establishment for violation of this Article 58, without regard to whether the Director has issued a notice of violation, instituted abatement proceedings, scheduled or held a hearing on a notice of violation, or issued a final decision.
(b) At any time, the Director may refer a case to the City Attorney’s Office for civil enforcement, but a referral is not required for the City Attorney to bring a civil action under subsection (a).
(c) Action for Injunction and Civil Penalty. Any Retail Establishment that violates Section 5802 shall be enjoined and shall be subject to a civil penalty in an amount not to exceed $1,000 per violation, subject to the limitations set forth in Section 5805(a), above. Such penalty shall be assessed and recovered in a civil action brought in the name of the people of the City and County of San Francisco by the City Attorney in any court of competent jurisdiction. In assessing the amount of the civil penalty, the court shall consider any one or more of the relevant circumstances presented by any of the parties to the case, including but not limited to, the following: the nature and seriousness of the misconduct giving rise to the violation, the number of violations, the persistence of the misconduct, the length of time over which the misconduct occurred, the willfulness of the defendant’s misconduct, and the defendant’s assets, liabilities and net worth.
(d) Attorneys’ Fees. The City Attorney shall recover reasonable attorneys’ fees if the City is the prevailing party in any court case or special proceeding to enforce this Article 58
and if the City Attorney elects, at the initiation of the action, to seek recovery of attorneys’ fees and provides notice of such intention to the adverse party or parties.
(e) Remedies under this Section 5807 are non-exclusive and cumulative to all other remedies available at law or equity.
(a) Any Retail Establishment that violates Section 5802 may be liable for damages in a civil action brought by any person that has been harmed by the Retail Establishment’s operation in violation of Section 5802. Such damages shall be in addition to any other rights and remedies that may be available to the person bringing a civil action under this Section 5808.
(b) No person may commence an action under Section 5808(a) without first providing written notice to the City Attorney of their intent to commence an action against a Retail Establishment. The person must deliver the written notice to the City Attorney at least 60 days prior to commencing the action. Notwithstanding Section 5808(a) and the foregoing sentences of this Section 5808(b), no person may commence an action against a Retail Establishment under Section 5808(a) if the City Attorney has already commenced an action against that Retail Establishment and the City Attorney’s action is ongoing, regardless of whether at the time of commencing such action there has been delivery of such notice, or, if there has been delivery of such notice, whether the City Attorney’s action has commenced before, on, or after the 60th day following delivery of such notice.
(c) This Article 58 shall not create any private right of action against the City.
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