This chapter shall be known as the “Neighborhood Nuisance
Code.”
(Ord. 1212 § 1, 1997)
The city council finds as follows:
(a) Just
as the physical conditions of some properties within the city constitute
public and private nuisances, so too the behavior of persons on properties
within the city can constitute public and private nuisances. Examples
of behavior which can constitute nuisances include large and noisy
gatherings, malicious mischief including specifically vandalism, graffiti,
noisy activities during late-night hours, use or sale of controlled
substances on the property, the coming and going of persons with the
intent to purchase controlled substances, and drunkenness and consumption
or possession of alcoholic beverages by persons under twenty-one years
of age.
(b) It
is as important for the public health, safety and welfare for interested
residents or the city to be able to abate nuisance-creating behaviors
as it is able to abate nuisance-creating physical conditions.
(c) The
owners of residential rental properties within the city are responsible
to monitor their properties and to take appropriate action if a nuisance
exists thereon, whether that nuisance is created by existing physical
conditions or by nuisance-creating behaviors. Such nuisances can be
avoided with adequate property management. If a property owner does
not fulfill his or her responsibilities, it is necessary for the safety,
health and welfare of neighborhoods and the city as a whole that the
city be able to undertake abatement action. Nuisance-creating physical
conditions can be abated pursuant to Chapter 8.24 of the South San
Francisco Municipal Code. A comparable abatement remedy for nuisance-creating
behaviors is needed.
(d) Neighborhood
health and safety must be protected in a way which does not promote
housing discrimination or promote evictions based on prejudice, unfounded
fears or personal animosities.
(e) Nothing
in this chapter exempts property owners from strict compliance with
state or federal housing law on evictions, retaliatory conduct or
discriminatory conduct, or privacy.
(f) The
city council recognizes that the ability of property owners to address
nuisance-causing behaviors is greatly enhanced by the cooperation
of the police department, the individual property owner, the tenants
and the surrounding community.
(Ord. 1212 § 1, 1997)
(a) The
purposes of this chapter are to:
(1) Set forth and enforce minimum standards relating to the management
of residential rental properties to protect the public health, safety
and welfare; and
(2) Establish a remedy which will permit the city to take effective and
efficient judicial or administrative action against property owners
who permit nuisance-creating behaviors to occur on their properties
in order to compel such owners to abate the nuisance-creating behaviors.
(b) Provisions
of this chapter are intended to be supplementary and complementary
to all of the other provisions of the South San Francisco Municipal
Code and state law and all remedies set forth in this chapter shall
be cumulative to other remedies which may be available under South
San Francisco Municipal Code or state law.
(Ord. 1212 § 1, 1997)
The provisions of this chapter shall apply generally to all
residential rental property throughout the city wherein any of the
nuisances specified in this chapter are found to exist; provided,
however, that any condition which would constitute a violation of
this chapter, but which is duly authorized under any city, state or
federal law, shall not be deemed to violate this chapter. The provisions
of this chapter shall not apply to activities which constitute a bona
fide exercise of constitutional rights.
“Residential rental property” is defined as property
that is rented or leased for residential use to a person, persons,
single family or multiple families for a period longer than twenty-nine
days.
(Ord. 1212 § 1, 1997)
(a) Every
owner of residential rental property within the city is required to
manage the property in a manner so as not to violate the provisions
of this chapter and the owner remains liable for violations thereof
regardless of any contract or agreement with any third party regarding
the property.
(b) Every
occupant, lessee or holder of any possessory interest in residential
rental property is required to act in a manner consistent with this
chapter on the property, and supervise any guests on the property,
in a manner so as not to violate the provisions of this code.
(Ord. 1212 § 1, 1997)
The chief of police or the chief’s designee (hereafter
chief) shall administer the provisions of this chapter.
Hearings on appeals of the chief’s orders shall be heard
by the city manager or his or her designee, or a neutral hearing officer,
if based on a request by the property owner and if the cost of said
hearing officer is paid in advance to the city by the property owner.
(Ord. 1212 § 1, 1997)
Notwithstanding any other provision in this chapter to the contrary, if a tenant’s conduct or action gives rise to any citation and order under Section
8.26.090 below, a landlord shall have the right, in addition to any other remedies that the landlord may have under the applicable lease, rental agreement or the California
Code of Civil Procedure, to use the citation and order as evidence of a nuisance for purposes of any eviction proceeding.
(Ord. 1212 § 1, 1997)
In any civil action brought pursuant to this code, the court
may award reasonable attorneys’ fees and costs to the prevailing
party.
(Ord. 1212 § 1, 1997)
Pursuant to
Government Code Section 38771, it is declared a
public nuisance, and a violation of this code for any person, firm
or corporation except a municipal corporation whether owner, lessee,
sublessor, sublessee or occupant of any residential rental property
in this city to permit that property to be used in such a manner that
any one or more of the activities described in the following subsections
are found to occur thereon or to have originated therefrom:
(a) The
illegal sale of controlled substances and other illegal drugs and
substances which creates a public nuisance as defined in
Civil Code
Sections 3479 and 3480;
(b) The
illegal use of controlled substances and other illegal drugs and substances
which creates a public nuisance as defined in
Civil Code Sections
3479 and 3480;
(c) The
frequent gathering, or coming and going, of people on the property
who have an intent to purchase or use controlled substances;
(d) The
occurrence of prostitution or the unlawful activities of a criminal
street gang, as defined in
Penal Code Section 186.22;
(e) The repeated making or continuing, or causing to be made, of any noise in violation of standards set forth in Section
8.32.030, which disturbs the peace and quiet of the neighborhood or which causes discomfort or annoyance to any reasonable person of normal sensitivity residing in the area;
(f) The
firing of gunshots or brandishing of weapons by a resident of the
property, or by a guest of a resident;
(g) The
occurrence of malicious mischief including vandalism or actions that
damage property or cause or attempt to cause personal injury;
(h) Three
or more arrests or detentions within any twelve month period for drunkenness
linked to the property (e.g., the house, apartment or specific multifamily
unit) or for providing alcoholic beverages to or permitting consumption
of alcoholic beverages by any person under twenty-one years of age
on the property;
(i) Harassment
of other persons wherein such harassment involves repeated threats
of physical harm to others or actions which may cause physical harm
to others.
A nuisance shall not be deemed to have originated from a property unless (1) it involves actions prohibited in Section 8.26.080, (2) there is a nexus between the action and the residential rental property (e.g., an absence of reasonably necessary security measures or property management), and (3) the nuisance has occurred within one hundred feet of the property.
|
(Ord. 1212 § 1, 1997)
(a) Whenever
the chief has inspected or caused to be inspected any residential
rental property and has found and determined that the property is
in violation of this code, the chief may issue a citation and order
to abate the nuisance as provided in this chapter. Before a citation
and order is issued, the chief shall communicate, in writing, with
the owner and tenant to request that the owner and/or tenant voluntarily
cooperate with the city to abate the nuisance, and/or encourage the
owner to participate in a mediation program designed to foster cooperation
between property owners, interested persons and the city. The city
shall take affirmative steps to pursue the actual perpetrators and
enforce the law against them.
(b) No
citation and order shall be issued hereunder if the owner is, in a
timely manner, making reasonable good faith efforts to abate the nuisance.
Examples of good faith efforts may include prompt responses to city
communications and requests, active property management, taking steps
to repair physical conditions which contribute to the nuisance, eviction
where deemed appropriate by the property owner, and screening of tenants.
If, in response to a citation, the owner takes legal action to evict
or takes other bona fide legal action against a tenant, the owner
shall be deemed to be in good faith compliance with this chapter and
no administrative penalty may be assessed notwithstanding that the
court may deny the eviction or other relief sought.
(c)
(1) Whenever the chief notifies an owner or manager of residential rental
property in writing of a nuisance alleged to be caused by a specific
tenant or the tenants or guests of a specific unit, the chief shall
concurrently give written notice thereof to the specific tenant(s)
or unit(s). Notice to the tenant or unit need not be given when the
chief determines that doing so would endanger persons or compromise
an ongoing police investigation.
(2) The notice shall generally describe the nuisance and the city’s
remedies under this code.
(3) Whenever the chief issues a citation and order to abate a nuisance
at a rental property, the chief shall concurrently issue a written
notice to the tenants of the particular property associated with the
citation.
(4) The chief shall establish procedures for providing all tenants with
notice of subsequent proceedings and actions pursuant to this chapter.
(5) The chief, the property owner, and, if appropriate, the tenants,
may enter into a written abatement plan that describes what abatement
actions that the property owner and/or tenants shall take to bring
the property into compliance with this chapter and, if appropriate,
a timeline for completing said action.
(d) The
city attorney or his or her designee shall review and approve each
citation and order before it is issued.
(Ord. 1212 § 1, 1997)
(a) Any time after service of a notice of nuisance as set forth in Section
8.26.090, either the property owner or the chief may initiate the mediation process established in this chapter by notifying the other of its desire to commence mediation. The notice shall be served on the chief or the property owner in accordance with the rules set forth in Section
8.26.140(b).
(b) Within
ten days of effective service of the request to initiate mediation,
the chief and the property owner shall each submit to the other the
name of an experienced mediator whom they are willing to utilize as
a mediator and who has agreed to act as a mediator in the subject
dispute. Thereafter, if the chief and the property owner are unable
to agree as to which proposed mediator to use, the presiding judge
of the Superior Court of San Mateo County shall be empowered to choose
one or the other of the proposed mediators upon the ex parte application
of either party. If either party fails to submit the name of an agreeable
mediator, the other party’s mediator shall automatically become
the selected mediator.
(c) Within
five days of the selection of the mediator the chief shall notify
the mediator of his or her selection. Within ten days of said notification,
the mediator shall serve the chief and the property owner with a scheduling
memorandum which memorandum shall set the day for the mediation.
(d) The
mediation may be conducted in any fashion which the mediator deems
appropriate so long as the chief and the property owner are given
a reasonable opportunity to be heard. The mediation shall be conducted
in one or more days, but in no event shall the mediation take more
than eight hours. Either party may recommend that persons in addition
to the chief and the property owner attend the mediation, and the
mediator may request the attendance of those persons or may request
that other persons who the mediator believes would be helpful to the
mediation process also attend.
(e) At the conclusion of the mediation, the mediator shall issue a report which sets forth the agreements, if any, which have been reached with respect to abatement of the subject nuisance. Such agreements shall be binding on the parties and may be enforced through the process set forth in Section
8.26.230.
(f) Each
party shall bear their own expenses of mediation. The property owner
and the chief shall share equally in the fees and expenses of the
mediator whose fees shall not exceed eighty-five dollars per hour
and whose expenses shall not exceed twenty dollars per day for each
day of mediation.
(Ord. 1212 § 1, 1997)
(a) The
citation and order shall contain:
(1) The street address and such other description as is required to identify
the property;
(2) A statement specifying with particularity the behaviors which constitute
the nuisance, including names to the extent permitted by law, descriptions,
addresses and unit numbers of the persons or person allegedly causing
the nuisance, and the actions which the chief orders the record owner
take to abate the nuisance;
(3) A statement advising the owner to abate the nuisance within forty-five
calendar days of mailing of the citation and order, or such longer
time as the chief may order. An extension of time to abate the nuisance
may be granted if the owner is making good faith efforts to abate
the nuisance;
(4) A statement advising the owner and tenant that he or she has the
right to request a hearing to contest the citation and order;
(5) A statement advising the owner and tenant that an administrative penalty in an amount not more than five hundred dollars for the first citation, not more than one thousand dollars for the second citation, and not more than five thousand dollars for any subsequent citations shall be imposed upon the owner or tenant or both and a lien made on the property involved if the nuisance is not abated as required by the citation and order and no written request for hearing is filed within the time period specified in Section
8.26.130;
(6) A statement that in responding to the citation and order, the owner
must comply with all applicable federal, state and local regulations
relating to evictions and prohibitions against discrimination;
(7) A statement that, pursuant to Section
8.26.091(a), either the property owner or the chief may initiate mediation;
(8) The mailing address and street address of the chief.
(b) The citation and order shall be served in the manner prescribed by Section
8.26.140(b) and
(c).
(c) A reimbursement obligation shall also be imposed on the owner or tenants of any residential rental property for which a citation and order is issued pursuant to this chapter including the cost of any qualified hearing officer used pursuant to Section
8.26.150. The reimbursement amount, which shall be set by the city manager or his or her designee, shall be calculated to recover the total city cost of inspections and enforcement related to the abatement order. However, in no event shall the owner or tenants be assessed the expenses incurred by the city prior to the issuance of the notice of citation. The city council may order that any unpaid reimbursement amount owed by the property owner be assessed against the property pursuant to Section
8.26.240.
(d) Any unpaid amount owed by a tenant may be referred to a collection agency. The citation and order shall state that a written abatement plan executed in accordance with Section
8.26.090(c)(5) by the owner, tenants and chief, with or without mediation, shall be deemed to be a final order of the hearing officer.
(e) If an owner or tenant elects to participate in mediation pursuant to Section
8.26.091, the time within which a request for hearing may be filed shall be extended by sixty days. The owner, or his or her authorized representative, shall appear personally at the mediation as set forth in the mediation procedures in Section
8.26.091.
(f) The
chief shall not impose any abatement actions that would require the
owner to violate state or federal housing law on evictions, retaliatory
or discriminatory conduct, or privacy.
(Ord. 1212 § 1, 1997)
(a) After
the time for abatement set forth in the citation and order has expired,
the chief shall determine whether the owner and/or tenant has taken
the action ordered by the chief and whether the nuisance has been
abated. If the chief determines that the nuisance has been abated,
the owner and any occupants other than the owner and tenant shall
be notified in writing of such determination and the citation shall
be dissolved.
(b) If the chief determines that the nuisance has not been abated, the chief may impose an administrative penalty of not more than five hundred dollars for the first citation, not more than one thousand dollars for the second citation, and not more than five thousand dollars for any subsequent citations upon the owner and/or tenant. In addition, the chief may issue another citation and order to the owner pursuant to Section
8.26.090.
(c) If
the chief imposes administrative penalty upon the owner, the chief
shall issue a notice of such penalty to the record owner of the property,
and, if applicable, to any occupants of the property who are not the
owner. The notice shall specify the amount of the administrative penalty,
advise the owner of his or her right to request a hearing to contest
the administrative penalty, and state that if no hearing request is
received within fifteen calendar days, the administrative penalty
will become final and be made a lien upon the property involved.
(d) The notice of administrative penalty shall be served in the manner prescribed by Section
8.26.140(b) and
(c).
(Ord. 1212 § 1, 1997)
The property owner or tenant has the right to request a hearing
to contest any citation and order issued or any administrative penalty
imposed by the chief.
(Ord. 1212 § 1, 1997)
(a) All
requests for hearing shall be made to the chief.
(b) A
request for hearing to contest a citation and order or an administrative
penalty shall be made in writing within fifteen calendar days from
the effective date of service of the citation and order or notice
of administrative penalty.
(c) If a request for hearing is not filed within the time period set forth in subsection
(b) of this section above, the citation or administrative penalty shall be deemed a final order of the city hearing officer.
(Ord. 1212 § 1, 1997)
(a) Upon
the owner’s or tenant’s request for a hearing, the chief
shall issue a hearing notice. The notice shall contain:
(1) A copy of the citation and order;
(2) A copy of the notice of administrative penalty, where applicable;
(3) An order to the owner to appear before a hearing officer at a stated
time, but in no event less than twenty calendar days after the effective
date of service of the hearing notice;
(4) A list of the actions which the chief intends to ask the hearing officer to order the owner to take if the matter is not resolved before the hearing. Nothing shall prevent the hearing officer from ordering other actions not listed in the hearing notice, but the owner shall have the right to ask for a supplemental hearing on such other actions as set forth in Section
8.26.220;
(5) A statement that all interested persons may attend and testify at
the hearing.
(b) The
hearing notice, and any amended or supplemental notice, shall be served
either by personal delivery or by mailing a copy by certified mail,
postage prepaid, return receipt requested, upon the tenant and record
owner at the owner’s address as it appears on the latest equalized
assessment roll of San Mateo County, or as known to the chief. At
the discretion of the chief, copies of the notice may also be mailed
to the owner by first class mail or mailed to any holder of an interest
in the property or a mortgage, deed of trust, or other lien or encumbrance
of record.
In lieu of personally serving the owner or tenant or service
by certified mail, service of the notice and any amended or supplemental
notice may be made as follows:
(1) In the event that the owner or tenant refuses to accept certified
return receipt mail or cannot be personally served, service may be
made by substituted service. In lieu of personal delivery of a copy
of the notice, a notice or any amended or supplemental notice may
be served by leaving a copy during usual office hours in his/her office
with the person who is apparently in charge, and by thereafter mailing
by first-class mail a copy of the notice to the owner at the address
where the copy of the notice was left. Or, a notice or any amended
or supplemental notice may be served by leaving a copy at the owner’s
or tenant’s dwelling, usual place of abode, or usual place of
business in the presence of a competent member of the household or
person apparently in charge of his/her office or place of business,
at least 18 years of age, and thereafter mailing by first-class mail
a copy of the notice to the owner at the address where the copy was
left.
(2) In the event the owner or tenant refuses to accept certified return
receipt mail or cannot be personally served and has a property manager,
or rental agency overseeing the property, substituted service may
be made as set forth in subsection (b)(1) of this section above upon
the property manager or rental agency.
(3) If the owner lives out of state and will not accept certified return
receipt mail, then service may be made by first-class mail.
(4) If the owner of the property cannot be located after a diligent search,
service may be made by publication in a San Mateo newspaper of general
circulation which is most likely to give actual notice to the owner.
Service shall be published twice with at least five days intervening
between the first publication and the second publication.
(c) Proof
of service of the hearing notice shall be certified by written declaration
under penalty of perjury executed by the person effecting service,
declaring the time, date and manner in which service was made.
(d) Failure
to effect service on any person specified in this chapter shall not
invalidate proceedings against any person who is properly served.
(Ord. 1212 § 1, 1997)
At the time set for hearing the hearing officer, which shall
be the city manager or as directed by the city manager, the assistant
city manager, or, at the owner’s option and cost, a qualified
neutral hearing officer selected by the city, shall proceed to hear
the testimony of city staff, the owner, any tenants, and other persons
respecting the nuisance-creating behaviors on the property and the
steps necessary to abate the nuisance, or the imposition of an administrative
penalty.
(Ord. 1212 § 1, 1997)
(a) The
proceedings at the hearing shall be recorded by a tape recorder. Either
party may provide a certified shorthand reporter to maintain a record
of the proceedings at the party’s own expense.
(b) Preparation
of a record of the proceeding shall be governed by California Code
of Civil Procedure Section 1094.6, as presently written or hereinafter
amended.
(Ord. 1212 § 1, 1997)
The hearing officer may grant continuances from time to time
for good cause shown.
(Ord. 1212 § 1, 1997)
The hearing officer shall administer the oath or affirmation.
(Ord. 1212 § 1, 1997)
The rules regarding the conduct of the hearing shall be as set
forth in Section 8.24.070, including any amendments thereto.
(Ord. 1212 § 1, 1997)
In reaching a decision, official notice may be taken, either
before or after submission of the case for decision, of any fact which
may be judicially noticed by the courts of this state or which may
appear in any of the official records of the city or any of its departments.
(Ord. 1212 § 1, 1997)
The hearing officer may inspect the exterior of the property
involved in the hearing prior to, during or after the hearing, provided
that:
(a) Consent
is granted by a person with the lawful right to grant consent or any
inspection warrant is obtained;
(b) Reasonable
notice of such inspection shall be given to the owner and tenants
before the inspection is made;
(c) The
parties are given an opportunity to be present during the inspection;
(d) The
hearing officer shall state for the record during the hearing, or
file a written statement after the hearing for inclusion in the hearing
record, upon completion of the inspection, the material facts observed
and the conclusions drawn therefrom; and
(e) Each
party then shall have a right to rebut or explain the matters so stated
by the hearing officer either for the record during the hearing or
by filing a written statement after the hearing for inclusion in the
record.
(Ord. 1212 § 1, 1997)
If it is shown by a preponderance of the evidence that behaviors
occurring on the property constitute a public nuisance as defined
in this chapter and that the owner of the property has not taken adequate
steps to abate the nuisance as prescribed by the chief, the hearing
officer shall issue a written decision declaring the property a public
nuisance. The hearing officer may affirm, reject or modify any administrative
penalty or abatement measure imposed on the owner or tenant by the
chief based upon the severity of the nuisance-creating behaviors on
the property and the owner’s efforts, or lack thereof, to remedy
the problem. The administrative penalty may be adjusted if the hearing
officer finds that imposition of the penalty would work a substantial
undue economic hardship on the owner or tenants. The hearing officer
may order the owner to take such reasonable action it deems appropriate
to abate the nuisance. The actions ordered shall be reasonable and
may include, but shall not be limited to:
(a) Provision
of additional interior or exterior lighting;
(b) The
posting of security personnel on the property;
(c) Installation
of appropriate fencing;
(d) Posting
of signs on the property, and provisions in rental applications and
agreements, which state that illegal use of controlled substances
and other nuisance-creating behaviors on the property shall be grounds
for eviction;
(e) Directing
that the property be managed in a manner consistent with federal,
state or local law;
(f) Hiring
of a competent resident manager who has experience, education and
training in rental property management;
(g) Posting
a sign on the property setting forth the name, address and daytime
and evening telephone numbers of the owner or of a local property
manager who is authorized to make decisions relating to management
of the property;
(h) Obtaining
education and training in rental property management;
(i) Implementation
of a property management program including elements such as effective
applicant screening, appropriate rental agreements, and appropriate
use of eviction procedures;
(k) Provision of other minimum security requirements or elements of crime prevention through environmental design principles and the city’s minimum security standards as set forth in Chapter
15.48 such as adequate locks, strike plates, maintenance of property, etc;
(l) Such
other reasonable actions as may be deemed appropriate by the hearing
officer.
The hearing officer shall not have the authority to order that
the owner evict a tenant or any other person from the property.
|
If the hearing officer orders the owner to take specific actions to abate the nuisance, the chief shall review the owner’s compliance with the hearing officer’s order pursuant to Section 8.26.110. The owner shall be given reasonable time to comply with the hearing officer’s order.
|
If the decision orders the owner to take any actions which were
not listed in the hearing notice, the decision shall specifically
designate those actions, and if the owner objects to those actions
as unnecessary or infeasible, the owner may request a supplemental
hearing before the hearing officer on the subject of the appropriateness
of those actions only, by filing a written request with the chief
within fifteen calendar days after the effective date of service of
the decision is made to the owner. A request for supplemental hearing
shall not stay the hearing officer’s order to take actions which
were listed in the hearing notice.
|
The decision of the hearing officer shall be final. The decision
shall inform the owner that the time for judicial review of the hearing
officer’s decision is governed by California Code of Civil Procedure
Section 1094.6.
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The decision shall be posted on the property and served upon
the owner by personal delivery or by certified mail, return receipt
requested, and shall be sent by first class mail to any occupants
other than the owner, any holder of any mortgage or deed of trust
or other lien or encumbrance of record, the owner or holder of any
lease of record, and the holder of any other estate or legal interest
of record in the property. Failure to serve the decision on any person
specified in this chapter shall not invalidate proceedings against
any person who is properly served.
|
(Ord. 1212 § 1, 1997)
After any order of the hearing officer made pursuant to this
code shall have become final, no owner to whom any such order is directed
shall fail, neglect or refuse to obey any such order. The city attorney
may commence appropriate judicial action against any owner who fails
to abate a nuisance pursuant to a final order of the chief or the
order of the hearing officer.
(Ord. 1212 § 1, 1997)
The administrative penalty shall be due and payable within thirty
days after the decision of the chief becomes final or within thirty
days after the hearing officer’s decision is issued. If the
penalty is not timely paid, the city council may thereupon order that
the penalty be recorded as a lien against the property involved. The
city council may also order that the lien against the property be
enforceable upon the sale or transfer of the property.
The city council may also order that a notice of lien be recorded.
The notice shall, at a minimum, identify the record owner or possessor
of the property, set forth the last known address of the record owner
or possessor, the date on which the penalty was imposed by the hearing
officer, a description of the real property subject to the lien, and
the amount of the penalty.
No owner shall pass on to tenants penalties incurred pursuant
to this chapter.
(Ord. 1212 § 1, 1997)
This chapter shall be reviewed by the city council one year from the date of its enactment. The purpose of this review shall be to determine whether implementation of the chapter has adequately addressed the concerns stated in Sections
8.26.020 and whether implementation has fulfilled the purpose stated in Section
8.26.030. The city council, at its option, may initiate subsequent reviews of this chapter at any time after the initial one-year review.
(Ord. 1212 § 1, 1997)