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(a) Regarding applicants or potential applicants for employment, or employees, an Employer shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on:
(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section an Unresolved Arrest;
(2) Participation in or completion of a diversion or a deferral of judgment program;
(3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code Sections 1203.4, 1203.4a, or 1203.41;
(4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
(5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing, except that this restriction and any limitations imposed in this Article 49 based on the limitation in this subsection (a)(5) shall not apply where the applicant or employee is or will be (A) providing services to or have supervisory or disciplinary authority over a minor, (B) providing services to or have supervisory or disciplinary authority over a “dependent adult,” as that phrase is defined in California Welfare and Institutions Code Section 15610.23 or any successor state law, or (C) providing support services or care to or has supervisory authority over a person 65 years or older;
(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction, except that an Employer may inquire about, require disclosure of, base an Adverse Action on, or otherwise consider an infraction or infractions contained in an applicant or employee’s driving record if driving is more than a de minimis element of the employment in question; or
(7) A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing. Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.
Accordingly, the matters identified in this subsection (a) may not be considered in any manner by the Employer.
(b) The Employer shall not require applicants or potential applicants for employment or employees to disclose on any employment application the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). Nor shall the Employer inquire on any employment application about the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). An Employer may ask on an employment application for an applicant, potential applicant, or employee’s written consent for a Background Check so long as the application includes a clear and conspicuous statement that the Employer will not itself conduct or obtain from a third party the Background Check until after a conditional offer of employment in accordance with subsection (c) of this Section 4904.
(c) The Employer shall not require applicants or potential applicants for employment, or employees, to disclose, and shall not inquire into or discuss, their Conviction History or an Unresolved Arrest until after a conditional offer of employment. The Employer may not itself conduct or obtain from a third party a Background Check until after a conditional offer of employment.
(d) Prior to any Conviction History inquiry, the Employer shall provide a copy of the notice described in Section 4905(b) to the applicant or employee.
(e) Prior to obtaining a copy of a Background Check Report, the Employer shall comply with all state and federal requirements including but not limited to those in the California Investigative Consumer Reporting Agencies Act (ICRAA), California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act (FCRA), 15 United States Code sections 1681 et seq., to provide notice to the applicant or employee that such a report is being sought.
(f) In making an employment decision based on an applicant's or employee's Conviction History, an Employer shall conduct an individualized assessment, considering only Directly-Related Convictions, the time that has elapsed since the Conviction or Unresolved Arrest, and any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors.
(g) If an Employer intends to base an Adverse Action on an item or items in the applicant or employee's Conviction History, prior to taking any Adverse Action the Employer shall provide the applicant or employee with a copy of the Background Check Report, if any, and shall notify the applicant or employee of the prospective Adverse Action and the items forming the basis for the prospective Adverse Action.
(h) If, within seven days of the date that the notice described in subsection (g) is provided by the Employer to the applicant or employee, the applicant or employee gives the Employer notice, orally or in writing, of evidence of the inaccuracy of the item or items of Conviction History or any Evidence of Rehabilitation or Other Mitigating Factors, the Employer shall delay any Adverse Action for a reasonable period after receipt of the information and during that time shall reconsider the prospective Adverse Action in light of the information.
(i) Upon taking any final Adverse Action based upon the Conviction History of an applicant or employee, an Employer shall notify the applicant or employee of the final Adverse Action.
(j) It shall be unlawful for any Employer to engage in any communication that is intended and reasonably likely to reach persons who are reasonably likely to seek employment in the City, and that expresses, directly or indirectly, that any person with an Arrest or Conviction will not be considered for employment or may not apply for employment. For purposes of this subsection (j), engaging in a communication includes but is not limited to making a verbal statement or producing or disseminating any solicitation, advertisement, or signage.
(k) Nothing in this Section 4904 shall be construed to prohibit an Employer from observing the conditions of a seniority system or an employee benefit plan, provided such systems or plans are not a subterfuge to evade the purposes or requirements of this Article.
(Former Sec. 4904 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4904 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) The Employer shall state in all solicitations or advertisements for employees that are reasonably likely to reach persons who are reasonably likely to seek employment in the City, that the Employer will consider for employment qualified applicants with criminal histories in a manner consistent with the requirements of this Article 49.
(b) The OLSE shall, by the operative date of this Article 49, publish and make available to Employers, in English, Spanish, Chinese, and all languages spoken by more than 5% of the San Francisco workforce, a notice suitable for posting by Employers in the workplace informing applicants and employees of their rights under this Article 49. The OLSE shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco workforce.
(c) Employers shall post the notice described in subsection (b) in a conspicuous place at every workplace, job site, or other location in San Fran- cisco under the Employer’s control frequently visited by their employees or applicants, and shall send a copy of this notice to each labor union or representative of workers with which they have a collective bargaining agreement or other agree- ment or understanding, that is applicable to em- ployees in San Francisco. The notice shall be posted in English, Spanish, Chinese, and any lan- guage spoken by at least 5% of the employees at the workplace, job site, or other location at which it is posted.
(Former Sec. 4905 added by Ord. 176-13, File No. 130661, App. 7/31/2013, Eff. 8/30/2013; expired 9/30/2013)
(Former Sec. 4905 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) Regarding applicants or potential applicants for Affordable Housing, and their household members, a Housing Provider shall not, at any time or by any means, inquire about, require disclosure of, or if such information is received base an Adverse Action in whole or in part on:
(1) An Arrest not leading to a Conviction, excepting under circumstances identified in this Section an Unresolved Arrest;
(2) Participation in or completion of a diversion or a deferral of judgment program;
(3) A Conviction that has been judicially dismissed, expunged, voided, invalidated, or otherwise rendered inoperative, by way of example but not limitation, under California Penal Code sections 1203.4, 1203.4a, or 1203.41;
(4) A Conviction or any other determination or adjudication in the juvenile justice system, or information regarding a matter considered in or processed through the juvenile justice system;
(5) A Conviction that is more than seven years old, the date of Conviction being the date of sentencing;
(6) Information pertaining to an offense other than a felony or misdemeanor, such as an infraction 1
(7) A Conviction that arises out of conduct that has been decriminalized since the date of the Conviction, the date of the Conviction being the date of sentencing. Examples of statutes that have decriminalized particular conduct include but are not limited to California Health and Safety Code Sections 11362.1 and 11362.2.
Accordingly, the matters identified in this subsection (a) may not be considered in any manner by the Housing Provider.
(b) The Housing Provider shall not require applicants for Affordable Housing to disclose on any housing application the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7). Nor shall the Housing Provider inquire on any housing application about the fact or details of any Conviction History, any Unresolved Arrest, or any matter identified in subsections (a)(1)-(7).
(c) The Housing Provider shall not require applicants for Affordable Housing to disclose, and shall not inquire into, Conviction History until the Housing Provider has first determined:
(1) that the applicant is legally eligible to rent the housing unit; and
(2) that the applicant is qualified to rent the housing unit under the Housing Provider's criteria for assessing rental history and credit history; provided, however, that this subsection (c)(2) shall apply only if the Housing Provider uses rental history and credit history information in determining qualifications of applicants for housing; and provided further, that this subsection (c)(2) shall not preclude a Housing Provider from obtaining a Background Check Report at the same time as the Housing Provider obtains the rental history report and credit history report for an applicant, so long as the Housing Provider reviews the Background Check Report only after determining based on rental history and credit history that the applicant is qualified to rent the housing unit.
(d) Prior to any Conviction History inquiry, the Housing Provider shall provide a copy of the notice described in Sections 4907(b) and (c) to the applicant.
(e) Prior to obtaining a copy of a Background Check Report, the Housing Provider shall comply with all state and federal requirements including but not limited to those in the California Investigative Consumer Reporting Agencies Act (ICRAA). California Civil Code sections 1786 et seq., and the Federal Consumer Reporting Act (FCRA), 15 United States Code sections 1681 et seq., to provide notice to the applicant that such a report is being sought.
(f) In making a decision related to Affordable Housing based on Conviction History, a Housing Provider shall conduct an individualized assessment, considering only Directly-Related Convictions, the time that has elapsed since the Conviction or Unresolved Arrest, and any evidence of inaccuracy or Evidence of Rehabilitation or Other Mitigating Factors.
(g) If a Housing Provider intends to base an Adverse Action related to Affordable Housing on an item or items in the applicant's Conviction History, prior to taking any Adverse Action the Housing Provider shall provide the applicant with a copy of the Background Check Report, and shall notify the applicant of the prospective Adverse Action and the items forming the basis for the prospective Adverse Action.
(h) If, within 14 days of the date that the notice described in subsection (g) is provided by the Housing Provider to the applicant, the applicant gives the Housing Provider notice, orally or in writing, of evidence of the inaccuracy of the item or items of Conviction History and/or Evidence of Rehabilitation or Other Mitigating Factors, the Housing Provider shall delay any Adverse Action for a reasonable period after receipt of the information and during that time shall reconsider the prospective Adverse Action in light of the information.
(i) Upon taking any final Adverse Action based upon the Conviction History of an applicant, the Housing Provider shall notify the applicant of the final Adverse Action.
(j) It shall be unlawful for any Housing Provider to engage in any communication related to Affordable Housing that expresses, directly or indirectly, that any person with an arrest or conviction record will not be considered for the rental or lease of real property or may not apply for the rental or lease of real property, except as required by local, state, or federal law. For purposes of this subsection (j), engaging in a communication includes but is not limited to making a verbal statement or producing or disseminating any solicitation, advertisement, or signage.
(Former Sec. 4906 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
CODIFICATION NOTE
(a) The Housing Provider shall state in all solicitations or advertisements for the rental or lease of Affordable Housing placed by the Housing Provider or on behalf of the Housing Provider, that the Housing Provider will consider for tenancy qualified applicants with criminal histories in a manner consistent with the requirements of this Article.
(b) The HRC shall, by the operative date of this Article, publish and make available to Housing Providers, in English, Spanish, and Chinese, and all languages spoken by more than 5% of the San Francisco population, a notice suitable for posting that informs applicants for Affordable Housing of their rights under this Article. The HRC shall update this notice on December 1 of any year in which there is a change in the languages spoken by more than 5% of the San Francisco population.
(c) Housing Providers shall post the notice prominently on their website and at any location under their control that is frequently visited by applicants or potential applicants for the rental or lease of Affordable Housing in San Francisco. At a minimum the notice described above shall contain the following information:
(1) A description of those matters identified in Section 4906(a) that may not be considered by the Housing Provider under any circumstances;
(2) A description of the restrictions and requirements that Section 4906 imposes on Housing Providers when inquiring about Conviction History in connection with an application for the rental or lease of Affordable Housing in San Francisco;
(4) The HRC telephone number and email address the applicant or potential applicant may use to make a report if he or she believes the Housing Provider has violated any of the provisions of Article 49.
(Former Sec. 4907 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) It shall be unlawful for an Employer, Housing Provider, or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right protected under this Article.
(b) It shall be unlawful for an Employer to refuse to hire an applicant, or to discharge, threaten to discharge, demote, suspend or otherwise take Adverse Action against an employee in retaliation for exercising rights protected under this Article. Such rights include but are not limited to:
(1) the right to file a complaint or inform any person about any Employer's alleged violation of this Article;
(2) the right to inform any person about an Employer's alleged violation of this Article;
(3) the right to cooperate with the OLSE or other persons in the investigation or prosecution of any alleged violation of this Article;
(4) the right to oppose any policy, practice, or act that is unlawful under this Article; or
(5) the right to inform any person of his or her rights under this Article.
(c) It shall be unlawful for a Housing Provider to interrupt, terminate, or fail or refuse to initiate or conduct a transaction involving the rental or lease of residential real property, including falsely representing that a residential unit is not available for rental or lease, or otherwise take Adverse Action against a person in retaliation for exercising rights protected under this Article. Such rights include but are not limited to:
(1) the right to file a complaint or inform any person about any Housing Provider's alleged violation of this Article;
(2) the right to inform any person about a Housing Provider's alleged violation of this Article;
(3) the right to cooperate with the HRC or other persons in the investigation or prosecution of any alleged violation of this Article;
(4) the right to oppose any policy, practice, or act that is unlawful under this Article; or
(5) the right to inform any person of his or her rights under this Article.
(d) Protections of this Section 4908 shall apply to any person who mistakenly but in good faith alleges violations of this Article.
(e) Taking Adverse Action against a person within 90 days of the exercise of one or more of the rights described in this Section 4908 shall create a rebuttable presumption that such Adverse Action was taken in retaliation for the exercise of those rights.
(Former Sec. 4908 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) Administrative Enforcement.
(1) With regard to the employment provisions of this Article 49, the OLSE is authorized to take appropriate steps to enforce this Article and coordinate enforcement, including the investigation of any possible violations of this Article. Where the OLSE has reason to believe that a violation has occurred, it may order any appropriate temporary or interim relief to mitigate the violation or maintain the status quo pending completion of a full investigation or hearing. The OLSE shall not find a violation based on an Employer’s decision that an applicant or employee’s Conviction History is Directly Related, but otherwise may find a violation of this Article, including if the Employer failed to conduct the individualized assessment as required under Section 4904(f).
(2) Where the OLSE determines that a violation has occurred, it may issue a determination and order any appropriate relief, provided however, that for a first violation, or for any violation during the first twelve months following the operative date of this Article, the OLSE must issue warnings and notices to correct, and offer the Employer technical assistance on how to comply with the requirements of this Article. For a second violation, the OLSE may impose an administrative penalty of no more than $50.00 that the Employer must pay to the City for each employee or applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations, the penalty may increase to no more than $100, payable to the City for each employee or applicant whose rights were, or continue to be, violated. Such funds shall be allocated to the OLSE and used to offset the costs of implementing and enforcing this Article.
(3) If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g. all applicants for a certain job opening are asked for their Conviction History on the initial application), the violation shall be treated as a single violation rather than multiple violations.
(4) Where prompt compliance is not forthcoming, the OLSE may refer the action to the City Attorney to consider initiating a civil action pursuant to Subsection (b).
(5) Subsections (a)(2), (a)(3), and (a)(4) apply to violations occurring prior to the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section 4909. Subsections (a)(6) and (a)(7) apply to violations occurring on or after the effective date of that ordinance.
(6) Where the OLSE determines that a violation has occurred, it may issue a determination and order any appropriate relief. If multiple employees or applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain job opening are asked for their Conviction History on the initial application), the violation shall be treated as one violation for each impacted employee or applicant.
(7) For a first violation on or after the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section 4909, the OLSE may impose an administrative penalty of no more than $500 for each employee or applicant as to whom the violation occurred or continued. For a second violation on or after the effective date of that ordinance, the OLSE may impose an administrative penalty of no more than $1,000 for each employee or applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations on or after the effective date of that ordinance, the OLSE may impose an administrative penalty of no more than $2,000 for each employee or applicant whose rights were, or continue to be, violated. The administrative penalties for each violation on or after the effective date of that ordinance shall be paid to the employee or applicant as to whom the violation occurred or continued. Notwithstanding the previous sentences in this subsection (a)(7), if multiple employees or applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain job opening are asked for their Conviction History on the initial application), the Employer shall be assessed the same administrative penalty for each of the employees or applicants affected by that procedural violation.
(8) An employee, applicant or other person may report to the OLSE any suspected violation of this Article 49 within 60 days of the date the suspected violation occurred. The OLSE shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee, applicant or person reporting the violation; provided, however, that with the authorization of such person, the OLSE may disclose his or her name and identifying information as necessary to enforce this Article or for other appropriate purposes.
(9) The Director of the OLSE shall establish rules governing the administrative process for determining and appealing violations of this Article 49. The Rules shall include procedures for:
(A) providing the Employer with notice that it may have violated this Article;
(B) providing the Employer with a right to respond to the notice;
(C) providing the Employer with notice of the OLSE’s determination of a violation;
(D) providing the Employer with an opportunity to appeal the OLSE’s determination to a hearing officer, who is appointed by the City Controller or his or her designee.
(10) If there is no appeal of the OLSE’s determination of a violation, that determination shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought by the Employer against the City regarding the OLSE’s determination of a violation.
(11) If there is an appeal of the OLSE’s determination of a violation, the hearing before the hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any such hearing, the OLSE’s determination of a violation shall be considered prima facie evidence of a violation, and the Employer shall have the burden of proving, by a preponderance of the evidence, that the OLSE’s determination of a violation is incorrect. The hearing officer’s decision of the appeal shall constitute the City’s final decision. The sole means of review of the City’s final decision, rendered by the hearing officer, shall be by filing in the San Francisco Superior Court a petition for writ of mandate under Section 1094.5 of the California Code of Civil Procedure. The OLSE shall notify the Employer of this right of review after issuance of the City’s final decision by the hearing officer.
(b) Civil Enforcement. The City or any employee or applicant whose rights under this Article 49 have been violated may bring a civil action in a court of competent jurisdiction against the Employer or other person violating this Article, and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, but not limited to: reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $500 to each employee, applicant or other person whose rights under this Article were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and, further shall be awarded reasonable attorney’s fees and costs. An employee or applicant may institute a civil action under this subsection (b) only if:
(1) The employee or applicant has filed a complaint with the Director of the OLSE;
(2) 90 days have passed since the filing of the complaint;
(3) After such 90-day period has passed, the employee or applicant provides 30-day written notice to the Director of the OLSE and the City Attorney’s Office of his or her intent to initiate civil proceedings; and
(4) The City Attorney’s Office has not provided notice to the employee or applicant of the City’s intent to initiate civil proceedings by the end of the 30-day period.
(c) Interest. In any administrative or civil action brought under this Article, the OLSE or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code.
(d) Remedies Cumulative. The remedies, penalties, and procedures provided under this Article are cumulative.
(e) Limitation on Actions. Civil Actions to enforce the employment provisions of this Article must be filed within one year after the date of the violation. This limitations period shall not commence until the date the violation was discovered or could reasonably have been discovered.
(f) Tracking of Complaints. OLSE shall maintain a record of the number and types of complaints it receives alleging violations of this Article, and the resolution of those complaints. OLSE shall report this information to the Board of Supervisors within six months of the operative date of the ordinance in Board of Supervisors File No. 171106 and then annually thereafter.
(a) An Employer shall retain records of employment, application forms, and other pertinent data and records required under this Article, for a period of three years, and shall allow the OLSE access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Article.
(b)
An Employer shall provide information to the OLSE, or the OLSE’s designee, on an annual basis (with the exception of reporting on calendar year 2019 and 2020 compliance) as may be required to verify the Employer’s compliance with this Article.
(c) In no event shall the OLSE require an Employer to provide any information or documents the disclosure of which would violate state or federal law.
(d) Where an Employer does not maintain or retain adequate records documenting compliance with this Article or does not allow the OLSE reasonable access to such records, it shall be presumed that the Employer did not comply with this Article, absent clear and convincing evidence otherwise. The Office of Treasurer and Tax Collector shall have the authority to provide any and all nonfinancial information to OLSE necessary to fulfill OLSE's responsibilities as the enforcing agency under this Article. With regard to all such information provided by the Office of Treasurer and Tax Collector, OLSE shall be subject to the confidentiality provisions of Subsection (a) of Section 6.22-1 of the San Francisco Business and Tax Regulations Code.
(e) Pursuant to its rulemaking authority under this Article, the OLSE shall adopt rules that establish procedures for Employers to maintain and retain accurate records and to provide annual reporting of compliance to OLSE in a manner that does not require disclosure of any information that would violate State or Federal privacy laws.
(Former Sec. 4910 added by Ord. 61-01, File No. 002197, App. 4/20/2001; amended by Ord. 197-03, File No. 030633, App. 8/1/2003; Ord. 187-04, File No. 040759, App. 7/22/2004; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) Administrative Enforcement.
(1) With regard to the housing provisions of this Article 49, the HRC, in consultation with the Mayor’s Office of Housing and Community Development, is authorized to take appropriate steps to enforce this Article and coordinate enforcement, including the investigation of any possible violations of this Article 49. The HRC shall not find a violation based on a Housing Provider’s decision that an applicant’s Conviction History is Directly Related, but otherwise may find a violation of this Article, including if the Housing Provider failed to conduct the individualized assessment as required under Section 4906(f).
(2) Where the Director of HRC determines that a violation has occurred, he or she may issue a determination and order any appropriate relief; provided, however, that for a first violation, or for any violation during the first twelve months following the operative date of this Article 49
, the Director must issue warnings and notices to correct, and offer the Housing Provider technical assistance on how to comply with the requirements of this Article 49
. For a second violation, the Director may impose an administrative penalty of no more than $50.00 that the Housing Provider must pay for each applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations, the penalty may increase to no more than $100, payable to the City for each applicant whose rights were, or continue to be, violated. Such funds shall be allocated to the HRC and used to offset the costs of implementing and enforcing this Article.
(3) If multiple applicants are impacted by the same procedural violation at the same time (e.g. all applicants for a certain housing unit are asked for their Conviction History on the initial application), the violation shall be treated as a single violation rather than multiple violations.
(4) Subsections (a)(2) and (a)(3) apply to violations occurring prior to the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section 4911. Subsections (a)(5) and (a)(6) apply to violations occurring on or after the effective date of that ordinance.
(5) Where the Director of HRC determines that a violation has occurred, he or she may issue a determination and order any appropriate relief. If multiple applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain housing unit are asked for their Conviction History on the initial application), the violation shall be treated as one violation for each impacted applicant.
(6) For a first violation on or after the effective date of the ordinance in Board of Supervisors File No. 171170 amending this Section 4909, the Director of HRC may impose an administrative penalty of no more than $500 for each applicant as to whom the violation occurred or continued. For a second violation on or after the effective date of that ordinance, the Director of HRC may impose an administrative penalty of no more than $1,000 for each applicant as to whom the violation occurred or continued. Thereafter, for subsequent violations on or after the effective date of that ordinance, the Director of HRC may impose an administrative penalty of no more than $2,000 for each applicant whose rights were, or continue to be, violated. The administrative penalties for each violation on or after the effective date of that ordinance shall be paid to the applicant as to whom the violation occurred or continued. Notwithstanding the previous sentences in this subsection (a)(6), if multiple applicants are impacted by the same procedural violation at the same time (e.g., all applicants for a certain housing unit are asked for their Conviction History on the initial application), the Housing Provider shall be assessed the same administrative penalty for each of the applicants affected by that procedural violation.
(7) An applicant or other person may report to the HRC any suspected violation of this Article 49 within 60 days of the date the suspected violation occurred. The HRC shall encourage reporting pursuant to this subsection by keeping confidential, to the maximum extent permitted by applicable laws, the name and other identifying information of the employee, applicant or person reporting the violation; provided, however, that with the authorization of such person, the HRC may disclose his or her name and identifying information as necessary to enforce this Article 49 or for other appropriate purposes.
(8) The Director of the HRC, in consultation with the Mayor’s Office of Housing and Community Development, shall establish rules governing the administrative process for determining and appealing violations of this Article 49. The Rules shall include procedures for:
(A) providing the Housing Provider with notice that it may have violated this Article 49;
(B) providing the Housing Provider with a right to respond to the notice;
(C) providing the Housing Provider with notice of the Director’s determination of a violation;
(D) providing the Housing Provider with an opportunity to appeal the Director’s determination to the HRC.
(9) If there is no appeal of the Director’s determination of a violation, that determination shall constitute a failure to exhaust administrative remedies, which shall serve as a complete defense to any petition or claim brought by the Housing Provider against the City regarding the Director’s determination of a violation.
(10) If there is an appeal of the Director’s determination of a violation, the City Controller or his or her designee shall appoint a person, other than a member of the Commission, to serve as a hearing officer. The hearing before the hearing officer shall be conducted in a manner that satisfies the requirements of due process. In any such hearing, the Director’s determination of a violation shall be considered prima facie evidence of a violation, and the Housing Provider shall have the burden of proving, by a preponderance of the evidence, that the Director’s determination of a violation is incorrect.
(11) If the hearing officer finds that the Housing Provider has engaged in conduct in violation of this Article 49, the hearing officer shall issue an order requiring the Housing Provider to cease and desist from the practice and to offer the housing accommodation to the applicant or applicants under the terms for which the unit was offered to the public. The Housing Provider shall not be required to offer the housing accommodation if the unit has already been rented or leased to a tenant, but the Housing Provider shall be required to offer a comparable unit, if available, to the applicant or applicants.
(12) The decision of the hearing officer shall be final unless the Commission vacates his or her decision on appeal.
(13) Either party may file an appeal of the hearing officer’s decision with the Commission. Such an appeal to the Commission from the determination of the hearing officer must be made within 15 days of the mailing of the decision and findings of fact. The appeal shall be in writing and must state the grounds for appellant’s claim that there was either error or abuse of discretion on the part of the hearing officer. Each appeal shall be accompanied by a $15 filing fee; provided, however, the fee shall be waived for an individual who files an affidavit under penalty of perjury stating that he or she is an indigent person who does not have and cannot obtain the money to pay the filing fee without using money needed for the necessities of life. The filing of an appeal will not stay the effect of the hearing officer’s decision.
(14) Upon receipt of an appeal, the entire administrative record of the matter, including the appeal, shall be filed with the Commission.
(15) The Commission may in its discretion determine to hear an appeal. In deciding whether to hear an appeal, the Commission shall consider, among other things, fairness to the parties, hardship to either party and promotion of the policies and purposes of this Article 49. In determining whether to hear an appeal the Commission may also review material from the administrative record of the matter as it deems necessary. A vote of the majority of the Commission shall be required for an appeal to be heard.
(16) In those cases where the Commission is able to determine on the basis of the documents before it that the hearing officer has erred, the Commission may without determining whether to hear the appeal remand the case for further hearing in accordance with its instructions without conducting an appeal hearing. Both parties shall be notified as to the time of the re-hearing, which shall be conducted within 30 days of the remand by the Commission. In those cases where the Commission is able to determine on the basis of the documents before it that the hearing officer’s findings contain numerical or clerical inaccuracies, or require clarification, the Commission may continue the hearing for purposes of referring the case back to said hearing officer in order to correct the findings.
(17) Appeals accepted by the Commission shall be heard within 45 days of the filing of an appeal. Within 30 days of the filing of an appeal, both parties shall be notified in writing as to whether the appeal has been accepted. If the appeal has been accepted, the notice shall state the time of the hearing and the nature of the hearing. Such notice must be mailed at least 10 days prior to the hearing.
(18) At the appeal hearing, the parties shall have an opportunity to present oral and written argument in support of their positions. The Commission may in its discretion allow the parties to present additional evidence that was not considered by the hearing officer. After such hearing and after any further investigation which the Commission may deem necessary, the Commission may, upon hearing the appeal, affirm, reverse or modify the hearing officer’s decision or may remand the case for further hearing in accordance with its findings. The Commission’s decision must be rendered within 45 days of the completion of the hearing and the parties must be notified of such decision.
(19) In accordance with the above subsection, the Commission shall give the parties written notice of the decision. The notice shall state that the decision is final.
(b) Civil Enforcement. The City or any applicant whose rights under this Article 49 have been violated may bring a civil action in a court of competent jurisdiction against the Housing Provider or other person violating this Article 49, and, upon prevailing, shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation including, but not limited to: reinstatement; back pay; the payment of benefits or pay unlawfully withheld; the payment of an additional sum as liquidated damages in the amount of $500 to each employee, applicant or other person whose rights under this Article 49 were violated for each day such violation continued or was permitted to continue; appropriate injunctive relief; and, further shall be awarded reasonable attorney’s fees and costs. An applicant may institute a civil action under this subsection (b) only if:
(1) The applicant has filed a complaint with the Director of HRC;
(2) 90 days have passed since the filing of the complaint;
(3) After such 90-day period has passed, the applicant provides 30-day written notice to the Director of HRC and the City Attorney’s Office of his or her intent to initiate civil proceedings; and
(4) The City Attorney’s Office has not provided notice to the applicant of the City’s intent to initiate civil proceedings by the end of the 30-day period.
(c) Interest. In any administrative or civil action brought under this Article, the HRC or court, as the case may be, shall award interest on all amounts due and unpaid at the rate of interest specified in subdivision (b) of Section 3289 of the California Civil Code.
(d) Remedies Cumulative. The remedies, penalties, and procedures provided under this Article are cumulative.
(e) Limitation on Actions. Civil Actions to enforce the employment provisions of this Article must be filed within one year after the date of the violation. This limitations period shall not commence until the date the violation was discovered or could reasonably have been discovered.
(f) Tracking of Complaints. HRC shall maintain a record of the number and types of complaints it receives alleging violations of this Article, and the resolution of those complaints. HRC shall report this information to the Board of Supervisors within six months of the operative date of the ordinance in Board of Supervisors File No. 171170 and then annually thereafter.
(Former Sec. 4911 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
(a) A Housing Provider shall maintain and retain records of tenant application forms, and other pertinent data and records required under this Article, for a period of three years, and shall allow the HRC access to such records, with appropriate notice and at a mutually agreeable time, to monitor compliance with the requirements of this Article.
(b) A Housing Provider shall provide information to the HRC, or the HRC's designee, on an annual basis as may be required to verify the Housing Provider's compliance with this Article.
(c) In no event shall the HRC require a Housing Provider to provide any information or documents the disclosure of which would violate state or federal law.
(d) Where a Housing Provider does not maintain or retain adequate records documenting compliance with this Article or does not allow the HRC reasonable access to such records, it shall be presumed that the Housing Provider did not comply with this Article, absent clear and convincing evidence otherwise. The Office of Treasurer and Tax Collector shall have the authority to provide any and all nonfinancial information to the HRC necessary to fulfill the HRC's responsibilities as the enforcing agency under this Article. With regard to all such information provided by the Office of Treasurer and Tax Collector, the HRC shall be subject to the confidentiality provisions of Subsection (a) of Section 6.22-1 of the San Francisco Business and Tax Regulations Code.
(e) Pursuant to its rulemaking authority under this Article, the HRC shall adopt rules that establish procedures for Housing Providers to maintain and retain accurate records and to provide annual reporting of compliance to the HRC in a manner that does not require disclosure of any information that would violate State or Federal privacy laws.
(Former Sec. 4912 added by Ord. 61-01, File No. 002197, App. 4/20/2001; repealed by Ord. 234-06, File No. 060892, App. 9/14/2006)
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