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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.
Six months following the start of this pilot program, the Drug Market Agency Coordination Center (“DMACC”) shall submit a report to the Clerk of the Board of Supervisors, along with a proposed resolution accepting the report. The report shall outline progress made to address conditions in the Tenderloin Public Safety Area, including enforcement under Article 58 and other City-led enforcement actions related to addressing the conditions noted in Section 5800, including updates from DMACC, the City Attorney, DPH, the Police Department, the Sheriff and any other entities working with the City. While the report may include other details as departments see fit to include, the report shall at minimum include information about how crime patterns and statistics have changed in the Tenderloin Public Safety Area, number of enforcement actions under Article 58, other related enforcement actions in the Tenderloin Public Safety Area, and reported calls for service during early morning hours throughout the duration of the pilot program.
The report shall also include updates from OEWD about outreach efforts and any other programs designed to help businesses within the Tenderloin Public Safety Area and an overview of feedback from businesses regarding the effects of the pilot program.
A hearing shall be held on the matter by the Board of Supervisors or one of its committees.
Nothing in this Article 58 shall be interpreted or applied so as to create any requirement, power, or duty in conflict with any federal or state law.
In enacting and implementing this Article 58, the City is assuming an undertaking only to promote the general welfare. It is not assuming, nor is it imposing on its officers and employees, an obligation for breach of which it is liable in money damages to any person who claims that such breach proximately caused injury.
If any section, subsection, sentence, clause, phrase, or word of this ordinance, or any application thereof to any person or circumstance, is held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining portions or applications of the ordinance. The Board of Supervisors hereby declares that it would have passed this ordinance and each and every section, subsection, sentence, clause, phrase, and word not declared invalid or unconstitutional without regard to whether any other portion of this ordinance or application thereof would be subsequently declared invalid or unconstitutional.
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