(a) Operative Date. The enforcement provisions outlined in this Section 5.9-11
in subsections (b)-(k) shall become operative eight weeks after the effective date of the ordinance in Board File No. 211292 establishing this Article 5.9, in order to allow the Department to conduct pre-enforcement extensive education and outreach pursuant to Section 5.9-10.
(b) Nuisance Declaration. Any violation of this Article 5.9, or of any applicable Rules and Regulations, constitutes a public nuisance.
(c) Notice of Violation. Any Enforcement Official may issue a Notice of Violation for any violation of this Article 5.9, or of the Rules and Regulations that interpret and implement this Article, and as described in subsection (e) below, that occurs on a public right-of-way (as that term is defined in Public Works Code Section 2.4.4) or any other street, sidewalk, alley, walkway, or pedestrian path available to the public. The Notice of Violation shall include: (1) information identifying the Offender, (2) details of the violation, (3) the name or identifying number of the Enforcement Official, (4) a general description of administrative fines, and payment method and options, including the ability-to-pay determination, (5) a general description of the appeals process, (6) information about the requirements of this Article 5.9 and any applicable Rules and Regulations that interpret and implement this Article, (7) information about who to contact for assistance related to this Article 5.9, and (8) information about workforce development opportunities and job placement programs.
(d) Written Warnings.
(1) The Department shall use the information included in the Notice of Violation to issue a written warning for any violation of this Article 5.9, or the Rules and Regulations that interpret and implement this Article 5.9, within 15 calendar days of issuing the Notice of Violation. The written warning shall inform the Vendor of a reasonable time, identified by the Department, to correct the issue or if the Vendor fails to correct the issue, the Vendor may be subject to an Administrative Citation. If a Vendor is found Vending Food and/or Merchandise in a package that is different from the description listed in the Vendor’s permit application pursuant to Section 5.9-5, the written warning shall inform the Vendor of a reasonable time, identified by the Department, to update the description of the Food and/or Merchandise in the Vendor’s permit application, or the Vendor may be subject to an Administrative Citation for failing to update the description.
(2) If a Vendor fails to correct any of the issues for which they received a written warning within the reasonable time identified by the Department, all additional violations of this Article 5.9, or of any applicable Rules and Regulations that interpret and implement this Article 5.9, shall be subject to an Administrative Citation.
(e) Administrative Citation. The Department will use the information included in the Notice of Violation to issue an Administrative Citation for any violation of this Article 5.9, or the Rules and Regulations that interpret and implement this Article, as described below, within 15 calendar days of issuing the Notice of Violation:
(1) Vending that violates a requirement in this Article 5.9 or in the Rules and Regulations that interpret and implement this Article, other than failure to possess a valid license or permit:
(A) An administrative fine equal to $100 for a first violation.
(B) An administrative fine equal to $200 for a second violation within twelve months of the first violation.
(C) An administrative fine equal to $500 for a third violation, and each subsequent violation, within twelve months of the first violation.
(D) In addition to any other authorized enforcement activity, the Director may revoke or suspend a Vendor’s license and/or permit for the remainder of its term upon a fourth or subsequent violation within twelve months of the first violation.
(2) Vending without a valid license or permit:
(A) An administrative fine equal to $250 for a first violation.
(B) An administrative fine equal to $500 for a second violation within twelve months of the first violation.
(C) An administrative fine equal to $1,000 for a third violation, and each subsequent violation, within twelve months of the first violation.
(D) If the Vendor submits proof of a valid permit that was effective at the time of the citation, the administrative fines set forth in subsections (A) through (C) of this subsection (e)(2) shall be reduced to equal the administrative fines set forth in subsections (A) through (C) of subsection (e)(1), as those amounts may be revised pursuant to subsection (e)(5).
(3) Failure to pay an Administrative Citation described in this subsection (e) shall not be punishable as an infraction or misdemeanor; further, additional fines, fees, assessments, or any other financial conditions beyond those authorized in this subsection (e) may not be assessed.
(4) When assessing an Administrative Citation authorized in this subsection (e), the Director shall take into consideration the person’s ability to pay the fine using the criteria described in subsection (a) or (b) of California Government Code Section 68632, as it may be amended. The Enforcement Official shall give notice to the Vendor of the right to request an ability-to-pay determination and instructions or other materials for requesting an ability-to-pay determination. The Vendor may request an ability-to-pay determination at any time while the judgment remains unpaid, including when a case is delinquent or has been referred to a comprehensive collection program. The Director’s determination shall be final. If the Vendor meets the ability-to-pay criteria, the Department shall accept 20% of the total administrative fine specified in subsection (e)(1) or (e)(2), as applicable, as full satisfaction.
(5) To the extent permitted by State law, the amounts of the administrative fines identified in subsections (A) through (C) of subsections (e)(1) and (e)(2) shall automatically increase or decrease to the maximum amount authorized under California Government Code Section 51039, as it may be amended. If Section 51039 is repealed and not replaced with a similar limitation on administrative fines, then the Director, in consultation with the Controller, may adjust the administrative fine amounts in this Section 5.9-11 each year, without further action by the Board of Supervisors, to reflect changes in the relevant Consumer Price Index.
(6) Within 30 days of issuance, the Vendor shall pay the Administrative Citation unless the Vendor files a written appeal with the Director. The grounds of appeal are limited to error or abuse of discretion in the issuance of the Administrative Citation. The Director may make an ability-to-pay determination pursuant to subsection (e)(4), but inability to pay shall not be grounds for rescinding the Administrative Citation or reducing the amount required to satisfy the fine to an amount less than the amount specified in subsection (e)(4). The Director shall consider any claims or defenses by the appellant, and shall issue and mail a written decision on the appeal within a reasonable time of receipt of the written appeal. Within 20 days of the Director’s decision upholding a fine in whole or in part, the Vendor shall pay the Administrative Citation. The Vendor may seek judicial review of an Administrative Citation pursuant to subsection (c)(1) in San Francisco Superior Court pursuant to Government Code Section 53069.4.
(7) Administrative Citation Issuance Date. For purposes of payment and appeals deadlines, the issuance date of any Administrative Citation delivered by the U.S. Postal Service shall be 5 calendar days after the date of mailing.
(8) Collection of Fines. The failure of any person to pay a fine assessed by Administrative Citation within the required time constitutes a debt to the City. Simple interest at 10% per year shall accrue on unpaid amounts.
(f) Temporary Order to Cease Vending and Removal.
(1) Any Enforcement Official may order a Vendor to promptly cease Vending when, in the judgment of the Enforcement Official, (A) the Vendor constitutes a safety hazard, including but not limited to impeding the safe use of a public right-of-way by pedestrians or persons with disabilities, or (B) when the presence of an emergency so requires, or (C) if the Vendor is unpermitted.
(2) (A) After the Enforcement Official orders an unpermitted Vendor to cease Vending, the Vendor must discontinue any Vending and remove all Food, Merchandise, and any other Vending paraphernalia from property within the City’s jurisdiction. A failure to promptly obey any such order from an Enforcement Official is a violation of this Article 5.9.
(B) After the Enforcement Official orders a permitted Vendor to cease Vending, the Vendor must discontinue any Vending and follow the orders of the Enforcement Official with regard to removing and relocating all Food, Merchandise, and any other Vending paraphernalia, and any other orders the Enforcement Official may give to mitigate safety hazards, and no further Vending may occur until the conditions that caused the order to cease Vending have been abated to the satisfaction of the Enforcement Official. A failure to promptly obey any such orders from an Enforcement Official is a violation of this Article 5.9.
(3) If a Vendor fails, within a reasonable time, to remove Food, or Merchandise, or any other Vending paraphernalia from the location subject to the order to cease Vending, or fails to follow any other orders the Enforcement Official may issue to mitigate safety hazards, the Enforcement Official or the Department may remove any or all of the items. Prior to removal by the Enforcement Official or the Department, the Enforcement Official shall warn the Vendor of the impending removal and impoundment, and shall urge the Vendor to make every effort to remove the items, or cause their removal. Where the Department actually removes any items, the Enforcement Official shall issue an Administrative Citation to the Vendor. The Vendor shall pay the actual costs of removal and storage of any items impounded, and of disposal of any items the storage of which may cause public health, safety, or infestation issues. The Vendor may contest the liability for these costs by timely appealing the Administrative Citation. However, these actual costs to the City are not subject to reduction based on the ability to pay; actual costs are a debt to the City that may be collected in the same manner as provided in subsection (e)(8). Vendor items that have been removed and stored may be recovered by the Vendor within 90 days from the date of removal and upon payment of a sum equal to the costs of removal, plus any reasonable transport and storage costs, as determined by the Department, and any costs incurred by the Department in disposing of any items. If the Vendor filed a written appeal pursuant to subsection (e)(6) and the appeal is not resolved within 90 days, the Department shall continue to store Vendor’s items until the appeal is resolved in order to allow Vendor to recover items. After 90 days, or as soon as the Vendor’s appeal is resolved if longer than 90 days, the Department shall donate non-Food items to organizations providing services to people who are unhoused, as appropriate. Prior to making any donations, the Department shall adopt regulations governing the process for selecting organizations to accept these donated goods.
(g) Other Violations. Any violation of this Article 5.9, or of the Rules and Regulations that interpret and implement this Article, may be subject to one or more of the following:
(1) An administrative fine as described in subsection (e).
(2) Civil Action.
(A) The Department may refer violations to the City Attorney to maintain an action for injunction to restrain to cause the correction or abatement of the violation of this Article 5.9, and for recovery of any City department’s enforcement and abatement costs (including but not limited to costs for removal, storage, impoundment, and disposal).
(B) The City shall be awarded its reasonable attorney’s fees and costs incurred in enforcing this Article 5.9.
(Added by Ord. 44-22, File No. 211292, App. 3/22/2022, Eff. 4/22/2022)