[Amended 10-2-2002 by Ord. No. 2002-24; 6-3-2009 by Ord. No. 09-07]
In the event that the Borough of Seaside Heights,
through its Police Department or municipal offices or officers, receives
three separate and verified complaints during any twelve-month period
concerning the improper operation of a business establishment constituting
an action allegedly injurious to the public health, safety and welfare,
the following actions shall be taken:
A. The Borough Clerk, or a duly authorized representative of said Clerk, shall cause a complaint to be issued and served upon the licensee in question. Service of said complaint may be made by personal service, certified mail, return receipt requested, or regular mail in the event that service is refused. If the whereabouts of the licensee is unknown and the same cannot be ascertained by the exercise of reasonable diligence, the Clerk, or a duly authorized representative of said Clerk, shall make an affidavit to that effect and then serve such complaint by publishing the same once each week for two consecutive weeks in the newspaper printed and published in the official newspaper of the Borough of Seaside Heights. The complaint shall clearly state the charges brought against the licensee and shall contain a notice that a hearing will be held before a hearing officer, who shall be an attorney-at-law of the State of New Jersey designated by the Mayor and Council, at a place therein fixed, not more than 45 days after the serving of said complaint. The complaint shall also advise the licensee that said licensee shall have the right to file an answer to the complaint and to appear, in person or otherwise, to give testimony or present evidence in his defense. The complaint shall also set forth the conferencing and discovery provisions of §
122-19. The aforementioned complaint shall be prosecuted by a special prosecutor designated by the Mayor and Council of the Borough of Seaside Heights.
B. No later than 15 days after the conclusion of the
above hearing, the hearing officer shall issue a written order setting
forth its findings. If the hearing officer concludes, by a preponderance
of the evidence, that the licensee has operated its business in a
manner injurious to the public health, safety and welfare, then said
written order shall prescribe the remedial action to be taken by the
licensee and/or the penalty to be imposed. Adjudication of complaints
by the Municipal Court, reoccurrence and frequency of complaints,
the amount of time between the date of the complaint and the date
of the hearing, and any remedial actions undertaken by the licensee
prior to the hearing may be considered by the hearing officer in assessing
penalties. Penalties may include the suspension or revocation of the
licensee's mercantile license. In the event a license is suspended,
said suspension may be required to be served during specific months
identified by the hearing officer, where such particularized suspension
would increase the effectiveness or appropriateness of the penalty.
[Added 10-2-2002 by Ord. No. 2002-24]
A. Prehearing conference. No more than 20 days after
the service of the complaint, the hearing officer shall hold a prehearing
conference, the date of which shall be set forth in the complaint,
with the special prosecutor and the licensee, or counsel for the licensee
if the licensee is represented, during which agreed upon facts may
be stipulated, the issue for hearing defined, any pending discovery
disputes resolved and a date certain for the hearing set.
B. Discovery. Within 15 days of the date set for hearing,
the special prosecutor must provide to the licensee, or his counsel
if the licensee is represented, a written list of witnesses to be
presented at hearing, and a copy of all documents upon which the Borough
may rely at hearing. Within 10 days of the date fixed for hearing,
the licensee, or his counsel if the licensee is represented, must
provide to the special prosecutor a written list of witnesses and
a copy of all documents upon which the licensee may rely at hearing.
Any requests for additional discovery must be provided, in writing,
to the hearing officer within five days of the date set for hearing.
The hearing officer may resolve the request for additional discovery
either by written decision, via telephone conference with both parties
at the prehearing conference, or at the date set for hearing, If the
hearing officer concludes that a request for discovery is reasonable
and constitutes a basis for adjournment of the hearing date, the hearing
officer may so adjourn the hearing date to another date certain. The
party seeking discovery shall pay for all reasonable expenses caused
by the discovery request.
C. Evidence. Generally, the rules of evidence applicable
to a Superior Court hearing shall apply. However, subject to a valid
claim of privilege, hearsay evidence shall be admissible at the hearing.
Hearsay evidence which is admitted shall be accorded whatever weight
the hearing officer deems appropriate taking into account the nature,
character and scope of the evidence, the circumstances of its creation
and production, and, generally, its reliability. Notwithstanding the
admissibility of hearsay evidence, some legally competent evidence
must exist to support each ultimate finding of fact to an extent sufficient
to provide assurances of reliability and to avoid the fact or appearance
of arbitrariness.