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:
(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.
(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.
(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;
(j)
Removal of graffiti;
(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. |
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)