San Marcos Municipal Code Art. III Abatement of Public Fly Nuisances

The purpose of this article is to provide for the investigation, continuing regulation and abatement of conditions in the City productive of flies which constitute a hazard to the public health, safety and welfare. In the administration and enforcement of this article, there shall be taken into account factors of population density, zoning ordinances and the proper determination of all sources of fly breeding to the end that the public health, safety and welfare may be secured and maintained.

As used in this article, the following definitions shall apply:

(a)

Public Fly Nuisance. The term public fly nuisance shall mean any place, condition, process or operation where by reason of the conduct, misconduct, neglect, failure or refusal of anyone, there is created or continues to exist the production of flies or fly larvae or pupae in such manner and in such quantity as:

(1)

To constitute an immediate danger to the public health, safety or welfare, or

(2)

To be indecent or offensive to the senses or an obstruction to the free use of the surrounding property so as to interfere with the comfortable enjoyment of life or property of an entire community, neighborhood or of a considerable number of persons.

(b)

Order of Abatement. The term order of abatement shall include modifications, rescissions or reinstatements of any order of abatement and shall include both prohibitory and mandatory orders requiring or prohibiting one or more acts; said term shall include those orders effective for a limited as well as an indefinite period of time.

(c)

Abatement. The term abatement shall include demolition, removal, repair, maintenance, construction, reconstruction, replacement and reconditioning of structures, appliances, appurtenances or equipment; removal, transportation, disposal and treatment of refuse, manure or other substance or media capable of breeding or attracting flies and the application of chemical or other substances or the use of mechanical means to control, eradicate and eliminate sources or causes of fly breeding media or conditions.

The Director of Public Health shall be responsible for the administration of this article and shall conduct such area surveys as are appropriate. The term Director of Public Health, as used in this article, shall include any employee of the Department of Public Health of the County of San Diego to whom any of the duties of the Director under this chapter are delegated by the Director.

The Director of Public Health may, upon reasonable cause to believe a public fly nuisance exists, investigate conditions productive of flies, fly larvae or pupae. He shall have the power while in the performance of his duty and upon first presenting his credentials and identifying himself as an employee of the Department of Public Health to the person apparently in control of the premises, if available, to enter upon any premises between the hours of 6:00 a.m. and 6:00 p.m., but not in the dwelling of any person without permission, to discover or to inspect any thing or condition which is productive or susceptible to the production of flies. He may examine such places, things or media; take such samples and make such tests as needed and take any other steps reasonably necessary for the proper investigation and determination of conditions which may be productive of fly larvae or pupae.

The Director of Public Health shall determine whether or not any of the conditions investigated constitute a public fly nuisance. If he determines that any of such conditions do constitute a public fly nuisance, he may issue a written order requiring that the conditions productive of flies, fly larvae or pupae be abated within a period of not less than seven days thereafter and shall forthwith serve the order upon the person maintaining the public fly nuisance. An order of abatement of a public fly nuisance made pursuant to this section shall continue in full force and effect until rescinded by the Director of Public Health or vacated or superseded by order of the Board of Supervisors after hearing pursuant to Section 64.306 of the County Code. The period of time specified in the order of abatement issued by the Director may for good cause be extended by written order of the Director. Any such order by the Director may be modified by the Director or modified by the Board of Supervisors after such hearing. Any such person served with a written order of abatement made pursuant to this section may appeal to the Board of Supervisors as provided in Section 64.304 and such appeal shall stay the effect of such order until the Board of Supervisors hears the appeal and issues its orders modifying, vacating or affirming such order of abatement; however, the appeal and stay of the order of abatement shall not relieve any person from liability and responsibility, both

criminal and civil, for maintaining a public fly nuisance and shall not stay or prevent the filing or prosecution of a criminal complaint for the maintenance of such public fly nuisance.

Within a period of three days, exclusive of Saturdays, Sundays and holidays, following the service of the written order of the Director of Public Health issued pursuant to Section 64.305 of the County Code, the person ordered to control or abate the public fly nuisance may file with the Board of Supervisors and the Director of Public Health a statement that he appeals the order of the Director of Public Health, which statement shall contain the appellant's name, mailing address and a general description of the order appealed from. Upon receipt of an appeal, the Clerk of the Board of Supervisors shall set the appeal for hearing at the next regularly scheduled meeting of the Board of Supervisors following the first Friday after the appeal is received. The Clerk shall forthwith notify the Director of Public Health of the time date, and place of hearing. At the time, date and place indicated, the Director of Public Health shall produce evidence of the existence of the public fly nuisance which is the subject of his order. The Board of Supervisors shall consider all relevant evidence adduced at the hearing and at any continued hearing and if it finds by a preponderance of the evidence that the public health, safety or welfare is in immediate danger by reason of the creation or maintenance of the public fly nuisance, or that by reason of the conduct or the neglect, failure or refusal of the appellant to act, he has created or continues to maintain that which is injurious to the public health, or is indecent or offensive to the senses, or an obstruction to the free use of surrounding property, so as to interfere with the comfortable enjoyment of life or property of an entire community or neighborhood or of any considerable number of persons, it may declare the same to be a public fly nuisance, shall make such findings as are necessary and proper and may order the abatement of such public fly nuisance within a reasonable time and upon such terms and conditions as are reasonable and just under the circumstances, or it may modify, vacate or affirm the offer of abatement made by the Director of Public Health. Thereafter, the Director of Public Health shall serve the order of abatement in accordance with Section 64.307 of the County Code, shall enforce the order, shall supervise the abatement of the public fly nuisance and may make such further orders as circumstances may warrant. Review of the decision of the Board of Supervisors must be had, if at all, by commencing an appropriate proceeding pursuant to the Code of Civil Procedure, Section 1094.5. Such proceeding must be commenced within ten days following the service of the order of the Board of Supervisors.

Service of any notice or order issued pursuant to this article may be accomplished by complying with Section 11.112 of the County Code. Each notice or order given or made under this article shall be served upon the person occupying the premises upon which the public fly nuisance exists. If no person occupies the premises, the notice or order shall be posted upon the premises in a conspicuous place and served upon the person appearing as owner of the premises according to the last equalized assessment roll of the county.

Any person upon whom an order to abate a public fly nuisance is served, who fails, refuses or neglects to obey or to continue to obey any provision of the order shall be guilty of a misdemeanor as provided in Section 1.12.010 of this Code.

(Amend. of 2-5-2025(1))

In the event the public fly nuisance as determined under Sections 8.12.140 or 8.12.150 is not abated or the conditions and provision of the order have not been complied with, the Director of Public Health, by order of the Board of Supervisors, may abate the public fly nuisance prevent its recurrence and eliminate or control the conditions productive of flies, fly larvae or pupae which constitute the public fly nuisance. Neither the County nor any of its officers or agents shall be liable for any reasonably necessary damage which is incident to the statement of such public fly nuisance as ordered under this article.

The cost of abatement shall be repaid to the county by the owner and the possessor of the property who shall be jointly and severally liable therefor. All sums expended by the county in abating a public fly nuisance or preventing its recurrence are a lien upon the property on which the public fly nuisance is abated or its recurrence prevented. Notice of the lien may be filed and recorded with the Recorder of the County of San Diego.

Provisions of this article empowering the Director of Public Health to require the abatement of or to abate a public fly nuisance are remedies in addition to any existing remedy authorized by law and are not to be construed as conflicting with or in derogation of any

other provision of this Code or of law.