Hayward Municipal Code Art. 15 Social Nuisance Ordinance

This ordinance shall be known as the "Social Nuisance Ordinance," may be cited as such, and will be referred to herein as "this ordinance."

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The City Council finds as follows:

a) Just as the physical conditions of properties within the City of Hayward can 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, noisy activities, including fireworks, during late night hours, use or sale of controlled substances on the premises, and the coming and going of persons with the intent to purchase controlled substances.

b) It is as important to the public health, safety and welfare for interested residents of the City or the City to be able to abate nuisance-creating behaviors as it is to abate nuisance-creating physical conditions.

c) The owners of properties within the City are responsible to monitor their properties and to take appropriate action if a nuisance exists thereon, whether that nuisance be created by existing physical conditions or by nuisance-creating behaviors. Such nuisances can be avoided with adequate property management. If property owners do not fulfill their responsibilities, it is necessary for the safety, health and welfare of neighborhoods and the City as a whole that interested persons or the City be able to undertake abatement action.

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 ordinance exempts property owners from strict compliance with state housing law on evictions, retaliatory conduct or discriminatory conduct, or privacy.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The purpose of this ordinance is:

a) To set forth and enforce minimum standards relating to the management of properties to protect the public health, safety, and welfare,

b) To put in place a remedy which will permit aggrieved persons or the City to take effective, efficient administrative or judicial action against property owners who permit nuisance-creating behaviors to occur on their properties on a continuing basis in order to compel such owners to abate the nuisance-creating behaviors, and

c) The provisions of this ordinance are intended to be supplementary and complementary to all of the other provisions of the Hayward Municipal Code and state law and all remedies set forth herein shall be cumulative to other remedies which may be available under the Hayward Municipal Code or state law.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The provisions of this ordinance shall apply generally to all property, whether owner occupied or rental, throughout the City of Hayward wherein any of the nuisances hereinafter specified, are found to exist. A criminal conviction is not required for establishing the occurrence of a nuisance violation pursuant to this ordinance. The provisions of this ordinance shall not apply to activities which constitute a bona fide exercise of constitutional rights.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Every owner of real property within the City is required to manage the property in a manner so as not to violate the provisions of this ordinance and the owner remains liable for violations thereof regardless of any contract or agreement with any third party regarding the property.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Every tenant, occupant, lessee or holder of any possessory interest in the real property is required to behave on the property, and supervise any guests on the property, in a manner so as not to violate the provisions of this ordinance.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The City Manager, or the City Manager's designee (hereafter "City Manager"), shall administer the provisions of this ordinance. The City Manager shall have the authority to designate employees as Enforcement Officers in conformance with this ordinance to assist with enforcement responsibilities of this ordinance, including, but not limited to, the issuance of notices, orders and fines. Hearings or appeals of the City Manager's orders shall be heard by a hearing officer appointed by the City Manager.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) The administrative enforcement described in this ordinance notwithstanding, the City Attorney may bring a civil action for injunctive relief and civil penalties against any owner who violates this ordinance.

b) Any person aggrieved by a public nuisance described in this ordinance may bring a civil action for injunctive relief and damages against any owner who violates this ordinance.

c) In any civil action brought pursuant to this ordinance, the court may award reasonable attorneys fees and costs to the prevailing party.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Owner shall mean any person, persons, organizations or legal entity owning property as shown on the last equalized assessment roll for City taxes.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Tenant shall mean any occupant, lessee, sublessor, sublessee, or holder of any possessory interest in the real property.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Enforcement Officer shall mean any person authorized by the City Manager to enforce the provisions of this ordinance.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Hearing Officer shall mean any person appointed by the City Manager to preside over the administrative hearings pursuant to this ordinance.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

"Administrative expenses" shall include, but not be limited to:

a) The costs associated with any hearings before a Hearing Officer.

b) City's personnel costs, direct and indirect, incurred in enforcing this article and in preparing for, participating in or conducting any hearings subject to this article, including but not limited to attorney's fees.

c) The cost incurred by the City in documenting the safety violations, including but not limited to, the actual expense and costs of the City responding to the safety violation(s); investigating and enforcing statutory crimes related to the safety violation, including, but not limited to, court appearances; conducting inspections; attending hearings; and preparing notices, administrative citations, and orders.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

It is hereby declared a public nuisance and a violation of this ordinance for an owner or tenant of any premises in this City to permit those premises to be used in such a manner that any one (1) or more of the activities described in the following subsections are found to occur and to occur repeatedly thereon:

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 who have an intent to engage in the illegal purchase or illegal use of controlled substances on the premises.

d) The occurrence of prostitution.

e) Violent criminal acts, whether or not a criminal case is filed, including, but not limited to, rape, attempted rape, robbery, battery, homicide, shooting, kidnapping, or arson.

f) Unlawful activities of a criminal street gang (as defined in Penal Code Section 186.22).

g) The creating or causing to be created any unreasonable noises, including fireworks, which disturbs the peace, quiet, and comfort of the community, or any portion thereof.

h) Allowing the occupancy load to exceed the permitted number within a public assembly, as established by the California Building Code, when alcohol and/or drugs are being consumed or accessible to the gathering.

i) The firing of gunshots or brandishing of weapons by a resident, or by a guest of a resident.

j) The occurrence of any criminal activity, including the setting off of any fireworks, not specified above which threatens the life, health, safety or welfare of the residents of the property, neighbors or the public.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) To commence enforcement of this ordinance, the City Manager shall notify the property owner of the occurrence of a nuisance violation on the owner's property. The City Manager shall communicate with the owner to request that the owner voluntarily cooperate with the City to abate the nuisance. The City Manager may concurrently give notice thereof to the property manager where applicable.

b) The City Manager shall also concurrently give written notice to the tenants, where applicable, identifying the nuisance violations.

c) The courtesy notice shall contain the following information:

1. The street address where the nuisance violation is occurring.

2. A statement specifying with particularity the activities and behaviors which constitute the nuisance, including where applicable, addresses and unit numbers of the person or persons allegedly causing the nuisance.

3. A statement that the person(s) allegedly causing the nuisance have the right to contest the allegations of nuisance at an informal meeting with the City Manager as described in subsection (d). The request for meeting with the City Manager must be made within fifteen (15) calendar days of the initial notification. Notice to the tenant or unit need not be given when the City Manager determines that doing so would endanger persons or compromise an ongoing police investigation.

d) The City Manager shall hold an informal meeting pursuant to subsection (c)(3) no later than fifteen (15) calendar days after the request by a person(s) allegedly causing the nuisance. At the meeting, the person(s) allegedly causing the nuisance shall be given the opportunity to demonstrate that he or she is not causing a nuisance. The City Manager shall mail copies of a letter describing the results of the informal meeting to the person(s) allegedly causing the nuisance and the property owner.

e) The Courtesy Notice shall be served in the manner prescribed by Section 4-15.24.

f) An "Order to Abate" shall not be issued hereunder if the owner is making good faith efforts to abate the nuisance. Indicia of good faith may include prompt responses to City communications and requests, active professional property management, taking steps to repair physical conditions which contribute to the nuisance, and utilizing any and all legal remedies to abate and/or remedy the nuisance, including but not limited to an unlawful detainer action.

g) The City Manager may issue an "Order to Abate" the nuisance after following the procedures described in subsections (a) through (f).

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The Order to Abate shall contain:

a) The street address where the nuisance violation is occurring.

b) A statement specifying with particularity the activities and behaviors which constitute the nuisance, including where applicable, addresses and unit numbers of the person or persons allegedly causing the nuisance, and reasonable actions which the City Manager orders the owner to take to abate the nuisance.

c) A statement advising the owner to abate the nuisance within thirty (30) calendar days of mailing of the Order to Abate, or such longer time as the City Manager may order. An extension of time to abate the nuisance shall be granted if the owner is making good faith efforts to abate the nuisance and those efforts are delayed due to judicial proceedings relating to the property.

d) A statement advising the owner that he or she has the right to request a hearing to contest the Order to Abate.

e) A statement advising the owner that an administrative penalty in an amount not to exceed five thousand dollars ($5,000.00) shall be imposed upon the owner and made a lien/special assessment on the property involved if the nuisance is not abated as required by the Order to Abate and no written request for hearing is filed within thirty (30) days of receipt of the Order to Abate.

f) A statement that in responding to the Order to Abate, the owner should comply with all applicable federal, state, and local regulations relating to evictions and prohibitions against discrimination.

g) Whenever the City Manager issues an Order to Abate to abate a nuisance at a rental residential property, the City Manager shall concurrently issue a written notice to the tenants of the cited property or unit.

h) The Order to Abate shall state that a written abatement plan executed by the owner and City Manager shall be deemed to be a final order of the hearing officer.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The Order to Abate shall be served in the manner prescribed by Section 4-15.24.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

In addition to administrative penalties, the City may impose a fee on the owner of any property for which an Order to Abate is issued pursuant to this ordinance. The fee shall be calculated to recover any and all administrative expenses incurred by the City. The fee shall be a personal obligation of the owner and a lien/special assessment against the property which is the subject of the Order to Abate. Any fee not paid within the time specified shall be recovered pursuant to Sections 4-15.35—4-15.39 of the Hayward Municipal Code.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

After the time for abatement set forth in the Order to Abate has expired, the City Manager shall determine whether the owner has taken action ordered by the City Manager and whether the nuisance has been abated. If the City Manager determines that the owner has complied with the City Manager's order and the nuisance has been abated, the owner and any tenants other than the owner shall be notified in writing of such determination and the administrative action shall be suspended. If the City Manager suspends the administrative action, he/she may continue to monitor the property and activity associated with it. If the City Manager determines that the nuisance activity recurs and/or the owner has failed to comply with the previously issued Order to Abate within eighteen (18) months of suspension of the case, the City Manager may impose an administrative penalty as provided in Section 4-15.20.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) If the City Manager determines that the nuisance has not been abated and that the owner has failed to comply with the City Manager's order, or that the nuisance actually has recurred, the City Manager shall issue a "Notice of Administrative Penalty" imposing an administrative penalty of not more than five thousand dollars ($5,000.00) upon the owner of the premises. In addition, the City Manager may issue another Order to Abate to the owner pursuant to Section 4-15.16 for the existence of any nuisance which has not been abated, or which has recurred.

b) The Notice of Administrative Penalty 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 thirty (30) calendar days, the administrative penalty will become final and be made a lien/special assessment upon the property involved.

c) No owner shall pass on to tenants penalties incurred pursuant to this ordinance.

d) The notice of administrative penalty shall be served in the manner prescribed by Section 4-15.24.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The property owner has the right to request a hearing to contest any Order to Abate issued, any fee or any administrative penalty imposed by the City Manager.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

A request for hearing to contest an Order to Abate, a fee or an administrative penalty imposed shall be made in writing, to the City Manager, within thirty (30) calendar days after mailing of the Order to Abate or Notice of Administrative Penalty. If a request for hearing is not timely filed, the Order to Abate, the fee or the administrative penalty imposed shall be deemed a final order of the hearing officer.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Upon the owner's request for a hearing, the City Manager shall issue a hearing notice. The notice shall contain:

a) A copy of the Order to Abate.

b) A copy of the Notice of Administrative Penalty, where applicable.

c) The amount of any fee imposed, where applicable.

d) 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 mailing of the hearing notice.

e) A list of the actions which the City Manager intends to ask the hearing officer to order the owner to take if the matter is not resolved before hearing. Nothing shall prevent the hearing officer from ordering other actions not listed in the hearing notice.

f) A statement that all interested persons may attend and testify at the hearing.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The hearing notice shall be served in the following manner:

a) The hearing notice, and any amended or supplemental notice, shall be served either by personal delivery or by first class mail, proof of service attached, postage prepaid, upon the owner at the owner's address as it appears on the latest equalized assessment roll of Alameda County, or as known to the City Manager. At the discretion of the City Manager, copies of the notice may also be mailed to any holder of an interest in the property or a mortgage, deed of trust, or other lien or encumbrance of record.

b) 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.

c) Failure to effect service on any person specified herein shall not invalidate proceedings against any person who is properly served.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

At the time set, the hearing officer shall proceed to hear the testimony of City staff, the owner, any tenants, and other persons regarding the nuisance-creating behaviors on the premises and the steps necessary to abate the nuisance, the imposition of an administrative penalty or any fee imposed. The hearing officer shall have the power to examine witnesses and to issue subpoenas to compel the attendance of witnesses and/or the production of documents.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

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.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The hearing officer may grant continuances from time to time for good cause shown.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The hearing officer shall administer the oath or affirmation.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) Oral evidence shall be taken only on oath or affirmation.

b) Hearings need not be conducted according to the technical rules of evidence.

c) Any relevant evidence shall be admitted if it is of the type of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs, regardless of the existence of any common law or statutory rule which might make improper the admission of such evidence over objection in civil actions in courts of competent jurisdiction in this state.

d) Irrelevant and unduly repetitious evidence shall be excluded.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The parties and anyone who participates in a hearing under this ordinance may be represented by an attorney or other person of the party's choice. If a party does not proficiently speak or understand the English language, the party may provide an interpreter, at the party's own cost, to translate for the party. An interpreter shall not have any involvement in the issues of the case prior to the hearing.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

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.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) If it is shown by a preponderance of evidence that behaviors occurring on the premises constitute a public nuisance and that the owner of the premises has not taken adequate steps to abate the nuisance as prescribed by the City Manager, the hearing officer shall issue a written decision declaring the premises a public nuisance. The hearing officer may order the owner to take such action the hearing officer deems appropriate to abate the nuisance. The actions ordered shall be reasonable and may include, but shall not be limited to:

1. Provision of additional exterior lighting;

2. The posting of security personnel on the premises;

3. Installation of appropriate fencing;

4. Posting of signs on the premises, and provisions in rental applications and agreements, which state that nuisance-creating behaviors on the premises, including but not limited to the nuisance-creating behaviors identified in this ordinance, shall be grounds for eviction;

5. Hiring a competent property management firm to manage the property;

6. Hiring of a competent resident manager who has experience, education, and training in rental property management;

7. Posting a sign on the premises 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;

8. Obtaining education and training in rental property management, including completion of the Hayward Police Department's the Crime Free Multi-Housing Program;

9. Correcting any violations of the Uniform Housing Code or Uniform Code for the Abatement of Dangerous Buildings;

10. Such other reasonable actions as may be deemed appropriate by the hearing officer.

b) The hearing officer may affirm, reject or modify any administrative penalty imposed on the owner by the City Manager based upon the severity of the nuisance-creating behaviors on the premises 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.

c) The hearing officer shall not have the authority to order that the owner evict a tenant or any other person from the premises.

d) If the hearing officer orders the owner to take specified actions to abate the nuisance, the City Manager shall review the owner's compliance with the hearing officer's order pursuant to Section 4-15.18.

e) The decision shall inform the owner that if the nuisance is not abated within the time specified and the owner has not complied with all orders of the hearing officer, an administrative penalty in an amount not to exceed five thousand dollars ($5,000.00) may be imposed upon the owner and made a lien/special assessment on the property involved.

f) 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.

g) The decision shall be posted on the premises and served upon the owner and to any tenants other than the owner, by personal delivery or by first class mail, proof of service attached, postage prepaid. The decision shall also be sent by first class mail to any holder of any mortgage or deed of trust or the lien or encumbrance of record, the owner or holder of any lease of record, the holder of any other estate or legal interest of record in the premises. Failure to serve the decision on any person specified herein shall not invalidate proceedings against any person who is properly served.

h) The decision of the hearing officer shall be final. Any person aggrieved by the administrative decision of a hearing officer may seek judicial review, as specified in Section 4-15.34.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

After any order of the hearing officer made pursuant to this ordinance becomes 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 the order of the hearing officer.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) Any notice, order, and/or decision, including the Courtesy Notice, Order to Abate, Notice of Administrative Penalty, and the Decision of the Hearing Officer, shall be a record subject to disclosure pursuant to terms set forth in the California Public Records Act. Said records may be used, subject to any applicable rules of evidence, in any judicial action.

b) In a judicial action, the Enforcement Officer shall comply with a subpoena issued in accordance with the procedures set forth in the California Code of Civil Procedure, Section 1985 et seq.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

a) Any person aggrieved by an administrative decision of the hearing officer ordering the abatement of a nuisance and any associated administrative penalties or reimbursement for costs set forth in the Hearing Decision, may seek review of the administrative decision in the Superior Court by filing with the court a petition for writ of mandate pursuant to Section 1094.5 of the Code of Civil Procedure.

b) The filing of a request for judicial review shall not stay the operation or effect of an administrative decision or order unless a court of competent jurisdiction issues a specific stay order.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Pursuant to California State Government Code Sections 38773.1 and 38773.5, prior to placing any liens or special assessments against a property for unpaid inspection fees, charges or penalties, all applicable owners shall be properly served written notice of past due amounts, and the right to have a Lien/Special Assessment Hearing as described hereinafter.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

Any owner may request a Lien/Special Assessment Hearing by written request within ten (10) days of receipt of the notice of lien/special assessment. The purpose of the Lien/Special Assessment Hearing is to provide an opportunity for any objections which may be raised by any person liable to be charged for the work of abating cited code violations and related charges associated with their property. The City Manager shall attend said Lien/Special Assessment Hearings with his or her record thereof, and upon the hearing, the hearing officer may make the modifications in the proposed lien/special assessment as deemed necessary. When a Lien/Special Assessment Hearing is requested, the amount of the cost of abating cited code violations upheld by the hearing officer, including inspection charges and administrative expenses shall, after being confirmed by the City Council, constitute a lien or special assessment on the property for the amount of the charges until paid. The right to judicial review shall be governed California Code of Civil Procedure Section 1094.5.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The Enforcement Officer shall keep an account of the cost of abating the nuisance on each separate lot or parcel of land where the work is done by the City, as well as any inspection charges which remain unpaid, and shall render an annual itemized report in writing to the City Council showing the cost of abatement, including any salvage value, and outstanding inspection charges. The City Council shall review and confirm the annual report and lien/special assessment list, amended as necessary, by way of resolution.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

The City Clerk shall post a copy of the report and lien/special assessment list on the bulletin board designated for the posting of agendas for City Council meetings together with a notice of filing thereof and of the time and place when and where it will be submitted to the City Council for confirmation by way of resolution. Notice shall also be published once in a newspaper of general circulation that is published and circulated within the City. The posting and first publication of the notice shall be made and completed at least ten (10) days before the time the report is considered by the City Council.

(Amended by Ordinance 22-01, § 1, adopted April 5, 2022)

After City Council confirmation of the annual report and lien/special assessment list, a copy shall be given to the City Director of Finance who may receive the amount due on the abatement cost and issue receipts at any time after the confirmation and until a list of unpaid liens/special assessments is sent annually to the County Auditor for effecting collection on the tax roll at the time and in the manner of ordinary municipal taxes. The descriptions of the parcels reported shall be those used for the same parcels on the County Assessor's map books for the current year. All laws and ordinances applicable to the levy, collection, and enforcement of City taxes are hereby made applicable to such liens or special assessments and this lien or special assessment shall have priority of the taxes with which it is collected.

(Ordinance 13-11, adding Article 15 to Chapter 4 of the Hayward Municipal Code relating to Social Nuisances, adopted November 19, 2013; Amended by Ordinance 22-01, § 1, adopted April 5, 2022)