(a) Under Section 836.5 of the Penal Code, Public Works employees designated in Administrative Code Section 38 are hereby authorized to issue a written notice of violation to any person who is in violation of Section 2001, and may delegate responsibilities to staff as appropriate to implement the removal of items taken in the enforcement of this Article. Upon issuance of such notice, Public Works may remove and seize any items that are being unlawfully assembled, disassembled, sold, distributed, offered for sale or distribution, or stored. If the person to whom the notice is issued does not allow Public Works to remove and seize the items, Public Works shall take no further action, but may seek assistance from the Police Department (SFPD) as necessary to complete the removal and seizure. Following the removal and seizure, the items may be recovered from Public Works either by contesting the grounds for the notice of violation under subsection (c), or by retrieving the items after 30 days under subsection (d).
(b) The notice of violation shall include a reference to this Article 20; a description of the violation; the date and location of the violation(s) observed; a description of all seized items; a description of the process the person in possession of the items may pursue to recover the items by contesting the grounds for the notice under subsection (c); a description of the process to recover the items after 30 days under subsection (d); and the name and signature of the Public Works employee who issued the notice and, if applicable, the SFPD officer who provided assistance 1
(c) A person who has received a notice of violation may contest the grounds for the notice by submitting a written request to Public Works within 30 days after the date of the notice. Upon receipt of a timely request, Public Works shall assign the matter to a hearing officer, who shall be someone other than the person(s) who issued the notice or who witnessed the events giving rise to the notice, or the direct supervisor of such person(s). The hearing officer shall fix a date, time, and place for the hearing, which shall occur within three calendar days of the receipt of the hearing request unless extended in writing by mutual agreement of the parties. Public Works shall have the burden in such hearing to prove by clear and convincing evidence that the violation described in the notice occurred. At the hearing, the reviewing officer will not be bound by the formal rules of evidence and may accept information from both parties, including, but not limited to, the notice, which shall be prima facie evidence of the violation. The hearing officer shall make findings based on the record of the hearing and shall issue a decision as soon as possible thereafter, and no later than two business days after the close of the hearing. If the hearing officer concludes that the City failed to prove by clear and convincing evidence that the violation of Section 2001 described in the notice occurred, Public Works shall immediately rescind the notice and return any seized items at no charge. If the hearing officer finds by clear and convincing evidence that the violation of Section 2001 described in the notice did occur, Public Works shall retain the items for at least 30 days after the date of the notice, in accordance with subsection (d). The decision of the hearing officer in either case shall be the City’s final action. Following the decision of the hearing officer, an appeal may be filed with the superior court pursuant to California Government Code Section 53069.4. Failure of any person to request a hearing in accordance with the provisions of this Section 2002 or to appear at the noticed hearing shall constitute a failure to exhaust administrative remedies.
(d) A person who has received a notice of violation may retrieve the seized items 30 days after the date of the notice. After 30 days have elapsed, if the recipient of the notice has not yet requested to retrieve the items, and another person requests the items on the basis of their lawful ownership of the items and provides Public Works reliable supporting evidence for their claim of ownership (including, but not limited to, video or photographic evidence, a bill of sale, the correct serial number) that Public Works finds accurate, then Public Works shall return the items to that person at no charge. If Public Works receives conflicting requests from multiple persons for the same item, or if Public Works after consultation with SFPD concludes that there is reasonable cause to believe that the items were not in the lawful possession of the recipient of the notice at the time of seizure or that a person claiming ownership has submitted a false claim, then Public Works shall refer the matter to SFPD for investigation, and on SFPD’s request shall deliver the items to SFPD. If SFPD declines to request the items from Public Works within 30 days of the date of referral, Public Works shall return the items to the recipient of the notice, or if such person has not requested the items, then to the person claiming lawful ownership.
(e) Any unclaimed items remaining in Public Works custody 60 days after the date of the notice of violation shall be deemed abandoned and may be discarded or destroyed.
(Added by Ord. 203-17, File No. 170209, App. 10/27/2017, Eff. 11/26/2017)
CODIFICATION NOTE