Chapter 1.13

ADMINISTRATIVE NUISANCE ABATEMENT

Sections:

• 1.13.010 Purpose.

• 1.13.020 Applicability.

• 1.13.030 Board defined.

• 1.13.040 Public nuisance prohibited.

• 1.13.050 Public nuisance defined.

• 1.13.060 Referral to city attorney.

• 1.13.070 Cease and desist order.

• 1.13.080 Method of service.

• 1.13.090 Notice of unlawful detainer proceeding.

• 1.13.100 Hearing.

If any person refuses or fails to comply with a subpoena of the city attorney issued pursuant to this chapter, the city attorney may petition any court of competent jurisdiction for an order compelling the person to attend and testify or produce the books, papers, records, accounts, documents or other items required by the subpoena before the officer named in the subpoena. (Ord. 25422.)

• 1.13.110 Notice of hearing.

• 1.13.120 Hearing.

• 1.13.130 Findings and order.

• 1.13.140 Nuisance abatement order.

• 1.13.150 Administrative penalties.

• 1.13.160 Administrative costs.

• 1.13.170 Reserved.

• 1.13.180 Failure to pay penalties and costs.

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§ 1.13.050

• 1.13.200 Report of compliance after nuisance abatement order.

• 1.13.210 Compliance dispute.

• 1.13.220 Right of judicial review.

• 1.13.230 Lien procedure.

• 1.13.240 Public hearing and protests.

• 1.13.250 Recording of lien.

• 1.13.260 Satisfaction of lien.

This administrative nuisance abatement process is intended to enable the city to respond effectively to public nuisances in order to maintain and protect the public peace, safety, welfare and order and to provide security and protection to the community from harms and wrongdoings. This process makes available an alternative remedy to instituting a civil suit to enjoin public nuisances by authorizing the administrative body to impose orders and conditions to abate and halt public nuisances. (Ord. 25523.)

• A. This chapter provides for administrative abatement of public nuisances, which is in addition to all other legal remedies, criminal or civil, which the city may pursue to address any public nuisance.

• B. The use of this chapter shall be at the sole discretion of the city.

• C. The city may proceed to abate a public nuisance under this chapter against any or all persons responsible for creating or fostering the creation of the public nuisance, without regard to whether or not the person owns the property upon which the public nuisance is occurring.

(Ord. 25523.)

For the purposes of this chapter, "board" means the appeals hearing board of the city of San José, or its successor, or such other board or commission of

the city that the city council may, by resolution, authorize to perform the functions of the board under this chapter.

(Ord. 25523.)

No person may maintain or use property or allow their property to be maintained or used in a manner that creates or fosters the creation of a public nuisance.

(Ord. 25523.)

• A. For purposes of this chapter, a public nuisance is:

  1. The maintenance or use of property in the city in a manner that jeopardizes or endangers the health, safety or welfare of persons on the premises or in the surrounding area; or

  2. Real property that has been the situs for nuisance activity including, but not limited to:

     • a. Disturbing the peace; or

     • b. Illegal drug activity; or

     • c. Public drunkenness; or

     • d. Drinking alcoholic beverages in public; or

     • e. Harassment of passersby; or

     • f. Illegal gambling; or

     • g. Prostitution; or

     • h. The sale of stolen goods; or

     • i. Acts of violence; or

     • j. Public urination; or

     • k. Acts of vandalism; or

     • l. Acts of lewd conduct; or

     • m. Unreasonably loud noise; or n. Loitering; or

     • o. Excessive littering; or

  3. The maintenance or use of property in the city in a manner that violates, or real property that has been the situs of a violation of, any provision of this code or any other city, state or federal law or regulation; or

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§ 1.13.050

4. Without limiting the generality of Subsection A.3., the conduct of business on property in the city for which the director of finance has issued an assessment of taxes owed to the city pursuant to Section 4.66.580, Section 4.76.870 or Section 4.77.160 of this Code and the taxes assessed remain delinquent; or

5. Without limiting the generality of Subsection A.3., the operation of a hotel on property in the city for which the director of finance has issued an assessment of transient occupancy taxes owed to the city pursuant to Section 4.72.110 or Section 4.74.110 of this Code and the taxes assessed remain delinquent.

• B. Nothing contained in this chapter shall prohibit persons from participating in activity which the city may not proscribe under the United States Constitution or the California Constitution.

• (Ords. 25523, 29261.)

• A. Any city department may refer a situation or condition located on a particular property or properties to the city attorney for the possible issuance of a nuisance abatement cease and desist order pursuant to this chapter.

• B. The city attorney shall initiate the proceedings set forth in this chapter only after the receipt of a referral from a city department and an independent review of whether or not property is being used or maintained in a manner that creates or fosters the creation of a public nuisance.

• (Ord. 25523.)

• A. If the city attorney determines that property in the city is being used or maintained in a manner that creates or fosters the creation of a public nuisance, the city attorney shall issue a nuisance abatement cease and desist order to the owner of the subject property, the occu-

pant of the subject property and/or to any other person(s) responsible for creating or fostering the creation of the public nuisance.

• B. The nuisance abatement cease and desist order shall:

  1. Describe the nature of the public nuisance being created maintained or fostered by or on the subject property; and

  2. Specify a compliance date by which the public nuisance shall cease.

• C. A nuisance abatement cease and desist order shall be deemed to be evidence that the activities, behaviors, conditions or situations described in the order are creating or fostering the creation of a public nuisance unless and until the appeals hearing board or a court of competent jurisdiction determines otherwise.

• (Ord. 25523.)

• A. All written notices required by this chapter shall be served as provided in Section 1.04.140 of Chapter 1.04 of this title.

• B. Where real property is involved, written notices shall be mailed to the property owner at the address shown on the last equalized county assessment roll.

• C. Where personal service or service by mail of the nuisance abatement cease and desist order or the notice of hearing described in Section 1.13.110 below upon the property owner is unsuccessful, the city attorney shall cause all of the following to occur:

  1. A copy of the nuisance abatement cease and desist order or the notice of hearing, as appropriate, shall be conspicuously posted at the real property where the public nuisance which is the subject of the order is occurring; and

  2. A copy of the nuisance abatement cease and desist order or notice of hearing, as appropriate, shall be published for at least three consecutive days in a newspaper of general circulation in the city. A copy of the notice of hearing shall be published

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§ 1.13.120

at least five days prior to the date scheduled for the public hearing that is referenced in the notice of hearing.

• D. The failure of any person to receive any notice required and properly served, mailed, posted or published under this chapter shall not affect the validity of any proceedings taken under this chapter.

• (Ord. 25523.)

An owner of real property that is the subject of a nuisance abatement cease and desist order and who has received a copy of the nuisance abatement cease and desist order shall notify the city attorney if the owner initiates or causes to be initiated unlawful detainer proceedings:

• A. As a part of the owner's efforts to comply with or address the nuisance abatement cease and desist order; or

• B. Related to the situations, conditions or behaviors described in the nuisance abatement cease and desist order.

• (Ord. 25523.)

• A. If the city attorney determines that the public nuisance has not ceased on or before the compliance date specified in the nuisance abatement cease and desist order or that the public nuisance has recurred prior to the compliance date, the city attorney shall advise the secretary to the board to set the matter for a nuisance abatement hearing before the board pursuant to this chapter.

• B. The secretary to the board shall cause a written notice of hearing before the board to be served on all persons subject to the nuisance abatement cease and desist order.

• (Ord. 25523.)

• A. Every notice of hearing on a nuisance abatement cease and desist order shall contain the date, time and place at which the hearing shall be conducted by the board.

• B. Each hearing shall be set for a date not less than fifteen days nor more than sixty days from the date of the notice of hearing unless the board determines that the matter is urgent or that good cause exists for an extension of time.

• C. This hearing serves to provide a person subject to a nuisance abatement cease and desist order a full opportunity to object to the determination that a nuisance has occurred, that the nuisance has continued to exist or has recurred and/or that the person is responsible for creating, maintaining or fostering the nuisance. The failure of any person subject to a nuisance abatement cease and desist order pursuant to this chapter to appear at the nuisance abatement hearing shall constitute a failure to exhaust administrative remedies.

• (Ord. 25523.)

• A. At the date, time and place set forth in the notice of hearing, the board shall conduct a hearing on the nuisance abatement cease and desist order.

• B. At the public hearing on the nuisance abatement cease and desist order, the board shall consider any written or oral evidence consistent with its rules and procedures regarding all of the following:

  1. The nuisance abatement cease and desist order, including, without limitation, evidence submitted by persons subject to the nuisance abatement cease and desist order and by the city; and

  2. The objectively reasonable efforts made by a person who is subject to the nuisance abatement cease and desist order to comply with that order prior to the compliance date set forth in that cease and desist order; and

  3. Any condition or situation beyond the control of a person subject to the nuisance abatement cease and desist order

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§ 1.13.120

that prevented compliance with that order by the compliance date specified in the order.

(Ord. 25523.)

• A. Within a reasonable period of time following the conclusion of the hearing, the board shall make findings and issue its written determination in connection with the nuisance abatement cease and desist order.

• B. The findings made by the board shall be supported by the evidence received at the hearing or otherwise submitted to the board in accordance with its rules and regulations.

• C. If the board finds by a preponderance of the evidence that both of the following exist, then the board shall issue a nuisance abatement order:

  1. The public nuisance occurred or recurred at or on the subject property after the compliance date specified in the nuisance abatement cease and desist order; and

  2. The person subject to that nuisance abatement cease and desist order did not take all objectively reasonable steps to comply with that order prior to the compliance date specified in the order, or no condition or situation beyond the control of the person subject to the nuisance abatement cease and desist order prevented compliance with the order by the compliance date specified in the order.

• D. If the board finds that one or more of the following exists, then the board shall issue a finding of those facts:

  1. That the public nuisance did not occur or recur at or on the subject property after the compliance date specified in the nuisance abatement cease and desist order; or

  2. That the person subject to the nuisance abatement cease and desist order took all

objectively reasonable steps to comply with the order prior to the compliance date specified in that order; or

3. That some condition or situation beyond the control of the person subject to the nuisance abatement cease and desist order prevented compliance with that order prior to the compliance date specified in the order.

• (Ord. 25523.)

• A. If the board determines that both of the elements set forth in Section 1.13.130.C. exist, then the board shall issue a nuisance abatement order described in Section 1.13.130.C., which nuisance abatement order may impose any or all of the following:

  1. An order to discontinue the use of or certain activity at the subject property, temporarily or permanently, as needed to protect the health, safety or welfare of persons or property on or near the subject property or to eliminate, lessen or prevent the continuation, exacerbation or reoccurrence of the detrimental impacts created by the public nuisance; and

  2. An order imposing conditions on the continued use of or certain activity at the subject property, as needed to protect the health, safety or welfare of persons or property on or near the subject property or to eliminate, lessen or prevent the continuation, exacerbation or recurrence of the detrimental impacts created by the nuisance; and

  3. Where the implementation of conditions requires a development permit or an amendment to an existing development permit, an order conditioned upon the property owner applying for and obtaining the development permit or modification of an existing development permit applicable to the subject property; and

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§ 1.13.160

4. An order to pay penalties of a certain amount to the city pursuant to Section 1.13.150; and

5. An order to pay reimbursement to the city for the city's administrative costs incurred as a result of the public nuisance and/or the public nuisance abatement procedure pursuant to Section 1.13.160.

• B. Every person subject to a nuisance abatement order shall comply with that nuisance abatement order and with all applicable laws, permits or other approvals of the federal, state or local governments in any and all actions taken pursuant to or in order to comply with the nuisance abatement order, including, without limitation, the payment of all applicable permit fees.

• (Ord. 25523.)

• A. The Board may impose penalties upon persons responsible for creating, maintaining or fostering a public nuisance in an amount not to exceed a maximum of Twenty Thousand Dollars ($20,000) per day for each day that the public nuisance occurs, except that the total administrative penalty imposed pursuant to this Chapter shall not exceed Five Hundred Thousand Dollars ($500,000), exclusive of administrative costs and interest.

• B. In determining the amount of the penalty, the Board may take any or all of the following factors into consideration:

  1. The period of time during which the public nuisance occurred;

  2. The nature, frequency and recurrence of the public nuisance;

  3. The ease with which the public nuisance could have been abated;

  4. The good faith efforts made to deter the public nuisance or ameliorate its effects;

  5. The economic impact of the penalty upon persons responsible for payment;

  6. The impact of the public nuisance on the community; and/or

  7. Such other factors as justice may require.

• C. Penalties imposed by the Board may accrue from a date no earlier than the compliance date specified in the Nuisance Abatement Cease and Desist Order and shall cease to accrue on the date the Nuisance Abatement Order has been complied with as determined by the City Attorney or the Board.

• D. Penalties assessed by the Board shall be due by the date specified in the Nuisance Abatement Order.

• E. Penalties assessed by the Board are a debt owed to the City and, in addition to all other means of enforcement, where the person against whom the penalties are assessed is an owner of the subject real property, may be enforced and collected through the placement of a lien against the subject real property.

• F. Penalties shall continue to accrue on a daily basis until the Nuisance Abatement Order has been complied with, subject to the maximum amount set forth in this Section.

• G. If a person subject to the Nuisance Abatement Order gives written notice to the City Attorney that the Nuisance Abatement Order has been complied with and if the City Attorney finds that compliance has been achieved, the date that the written notice was postmarked or personally delivered to the City Attorney or the date of the City's final inspection, whichever first occurred, shall be deemed to be the date of compliance with the Nuisance Abatement Order.

(Ords. 25523, 31239.)

• A. The board shall assess administrative costs against a person responsible for creating, maintaining or fostering the public nuisance when it finds that the nuisance occurred or recurred on or after the compliance date specified in the nuisance abatement cease and desist order.

• B. The administrative costs may include any and all costs incurred by the city in connection with the matter before the board including,

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§ 1.13.160

but not limited to, costs of investigation, staffing costs incurred in preparation for the hearing and for the hearing itself, and costs for all reinspections and other work performed by or on behalf of the city to enforce the nuisance abatement order.

• (Ord. 25523.)

Editor’s note— Ord. 31269, § 2, adopted Nov. 4, 2025, repealed § 1.13.170, which pertained to limit on property owner responsibility and derived from Ord. 25523.

A failure to pay the assessed penalties, interest and administrative costs as specified in the nuisance abatement order of the board may be enforced as:

• A. A personal obligation of persons subject to the nuisance abatement order; and/or

• B. A lien upon the subject real property for the amounts owed by a property owner pursuant to a nuisance abatement order. The lien shall remain in effect until all of the penalties, interest and administrative costs are paid in full.

• (Ord. 25523.)

Any person who fails to remit payment to the city of any penalty, cost or any other charge required to be paid to the city pursuant to a nuisance abatement order under this chapter on or before the date the penalty, cost or other charge is due shall, in addition to the amount of the penalty, cost, and charge, pay interest on the amounts due at the rate of ten percent per annum, pro-rata, from the date on which the amount due first became delinquent until the date that payment is received by the city. (Ord. 25523.)

If the city attorney determines that compliance with the nuisance abatement order has been

achieved, the city attorney shall file a report with the secretary of the board indicating that compliance has been achieved and the date of the city's final inspection of the subject property. (Ord. 25523.)

• A. If the city attorney does not file a report pursuant to Section 1.13.200 above, a person subject to the nuisance abatement order who believes that compliance has been achieved may request a compliance hearing before the board by filing a request for a hearing with the secretary of the board.

• B. The hearing shall be noticed and conducted in the same manner as a hearing on a nuisance abatement cease and desist order provided in Sections 1.13.080 through 1.13.130 of this chapter.

• C. The board shall determine if compliance with the nuisance abatement order has been achieved and, if so, when it was achieved.

• (Ord. 25523.)

Any person aggrieved by a nuisance abatement order of the board may obtain review of the nuisance abatement order in the superior court by filing with the court a petition for writ of mandate in accordance with Section 1.16.010 of this Code. (Ord. 25523.)

• A. Whenever the amount of any penalty and/or administrative cost, including interest, imposed upon a property owner by the board pursuant to this chapter has not been satisfied in full within ninety days and/or has not been successfully challenged by a timely writ of mandate, this obligation may constitute a lien against the subject real property at or upon which the public nuisance occurred.

• B. The lien provided herein shall have no force and effect until recorded with the county recorder. Once recorded, the lien shall have the

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force, effect and priority of a judgment lien governed by the provisions of Section 697.340 of the Code of Civil Procedure and may be extended as provided in Sections 683.110 to 683.220, inclusive, of the Code of Civil Procedure, all as may be amended from time to time.

• C. Interest shall accrue on the principal amount of the judgment remaining unsatisfied pursuant to law at the rate set forth in Section 1.13.180.

• D. Prior to recording any such lien, the director of finance shall prepare and file with the secretary to the appeals hearing board a written report stating the amounts due and owing.

• E. The secretary shall fix a time, date, and place for hearing such report and any protests or objections thereto.

• F. The director of finance shall cause written notice to be served on the property owner not less than ten days prior to the time set for the hearing. Such notice shall be served as provided in Section 1.04.140 of this title.

• (Ord. 25523.)

• A. Any person whose real property is subject to a lien pursuant to Section 1.13.230 may file a written protest with the secretary to the appeals hearing board and/or may protest orally at the appeals hearing board meeting.

• B. Each written protest or objection must contain a description of the property in which the protesting party is interested and the grounds of such protest or objection.

• C. The appeals hearing board, after the hearing, shall adopt a resolution confirming, modifying or discharging the amount of the lien pursuant to the provisions of Sections 1.18.040 to 1.18.060 of Chapter 1.18.

• (Ord. 25523.)

Thirty days following the adoption of a resolution by the appeals hearing board imposing a lien, the secretary to the appeals hearing board shall file

the same as a judgment lien in the office of the county recorder of Santa Clara County, California. The lien may carry such additional administrative charges as set forth by resolution of the board. (Ord. 25523.)

Once payment in full is received by the city for outstanding penalties, interest and costs, the director of finance shall either record a notice of satisfaction or provide the property owner or financial institution holding an interest in the subject property with a notice of satisfaction so they may record this notice with the office of the county recorder. Such notice of satisfaction shall cancel the city's lien.

(Ord. 25523.)