A.
The
procedures set forth in this chapter apply only to those permits and
licenses which are not specifically governed by any other procedures
which may be required pursuant to any applicable provision of the
municipal code and/or applicable statute, rule, code or regulation.
B.
The
procedures adopted in this chapter for the selection of administrative
hearing officers shall not replace, substitute for, or in any way
affect the administrative hearing board processes created by the California
codes, uniform codes and national codes adopted by the city and the
administrative hearings provided by such codes shall be treated separate
and apart from the administrative appeal hearing procedures adopted
herein.
(Ord. 870 § 2, 2004)
Upon reaching the determination that a specific violation of
the municipal code, and/or applicable statute, rule, code or regulation
warrants suspension, modification or revocation of a permit or license,
the city manager or designee shall prepare and serve a written notice
of action recommendation upon the subject permit or license holder.
(Ord. 870 § 2, 2004)
The notice of action recommendation should include all of the
following information: (a) the name of the subject permit or license
holder; (b) the street address or definite location where the violation(s)
occurred; (c) the code section(s) violated; (d) a description of the
conditions or actions which warrant suspension, modification or revocation
of the subject permit or license; (e) the action proposed (i.e., suspension,
modification or revocation of the subject permit or license); (f)
a description of any prior action taken by the city to gain compliance
with the code with regards to the subject violation(s); (g) a description
of the procedures involved in taking the proposed action, including
the license or permit holder's right to attend the hearing on the
proposed action; and (h) the name, title and telephone number of the
official making the recommendation.
(Ord. 870 § 2, 2004)
The city manager or designee shall cause a copy of the notice
of action recommendation to be provided to the subject permit or license
holder by causing a copy of the notice to be delivered to the permit
or license holder personally or by causing a copy of the notice to
be delivered to the permit or license holder via certified mail, postage
prepaid, return receipt requested, and addressed to permit or license
holder at the address shown on the permit or license.
(Ord. 870 § 2, 2004)
Proof of service of the notice of action recommendation shall
be certified at the time of service by a written declaration under
penalty of perjury executed by the persons effecting service, declaring
the date and manner in which service was made. The declaration shall
be affixed to a copy of the notice and retained by the city manager
or designee.
(Ord. 870 § 2, 2004)
There shall be an administrative hearing conducted on any notice
of action recommendation issued by the city manager or designee pursuant
to this chapter.
(Ord. 870 § 2, 2004)
The administrative hearing officer ("hearing officer") shall
act as the hearing officer and conduct all hearings pursuant to the
procedures set forth in this chapter, unless otherwise provided under
any other applicable provision of the municipal code and/or any applicable
statute, rule, code or regulation.
(Ord. 870 § 2, 2004)
The hearing officer shall review all evidence, documents, and
written testimony and hear all oral testimony submitted by all interested
parties and render all decisions and findings in writing to the permit
or license holder with a duplicate copy to the city manager or designee.
The hearing officer may accept, modify or reject the findings and
determinations supporting the recommendation.
(Ord. 870 § 2, 2004)
The hearing officer's authority to hear and consider the notice
of action recommendation shall be limited to only those matters within
his or her subject matter jurisdiction. The hearing officer shall
consider at the administrative hearing only those issues which are
relevant to the issues of the hearing. The hearing officer shall not
have the authority to waive any requirements of the municipal code
and/or any applicable statutes, rules, codes or regulations.
(Ord. 870 § 2, 2004)
After the service of a notice of action recommendation, the
city manager or designee shall be appointed the hearing officer for
purposes of presiding over the particular hearing which corresponds
with the notice of action.
(Ord. 870 § 2, 2004; Ord. 1078 § 4, 2014)
Once the hearing officer is selected, the city manager or designee
shall contact the hearing officer to schedule a date, time, and location
for the administrative hearing. The administrative hearing shall be
scheduled as soon as practicable but allowing sufficient time for
providing notice of the hearing.
(Ord. 870 § 2, 2004)
Once the date, time and place for the administrative hearing
is determined, the city manager or designee shall prepare a notice
of administrative hearing ("hearing notice"), which shall be in substantially
the same form as follows:
|
"You are hereby notified that a hearing will be held before
the Administrative Hearing Officer at __________ on the _____ day
of _____, _____, at the hour of __________ upon the Notice of Action
Recommendation served upon you. You may be present at the hearing.
You may be, but need not be, represented by an attorney. You may present
any relevant evidence at the hearing and you will be given a full
opportunity to cross-examine all witnesses testifying against you."
|
(Ord. 870 § 2, 2004)
The city manager or designee shall cause a copy of hearing notice
to be provided to the subject permit or license holder either by causing
a copy of said notice to be delivered to such person(s) personally
or by causing a copy of said notice to be delivered by certified mail,
postage prepaid, return receipt requested, and addressed to the permit
or license holder at the address shown on the subject permit or license.
(Ord. 870 § 2, 2004)
Proof of service of the hearing notice shall be certified at
the time of service by a written declaration under penalty of perjury
executed by the persons effecting service, declaring the date and
manner in which service was made. The declaration shall be affixed
to a copy of the hearing notice and the city manager or his or her
designee.
(Ord. 870 § 2, 2004)
The city manager or designee shall prepare an administrative
hearing packet for the hearing officer to review prior to the hearing.
The packet shall include a copy of the notice of action recommendation
and a staff report, which should include a description of the violations
and any actions taken by the subject permit or license holder subsequent
to the service of the notice, a record of conversations or correspondence
between the city and the permit or license holder concerning the violations
and/or the notice of action recommendation.
(Ord. 870 § 2, 2004)
At the administrative hearing, the hearing officer shall review
all evidence, documents, and written testimony and hear all oral testimony
offered either in support or in protest of the proposed action, provided
such evidence and testimony is relevant to the issues of the hearing.
The hearing officer has the authority to determine the relevance of
any evidence to the issues of the hearing. The hearing officer also
has the authority to exclude unduly repetitious and cumulative evidence,
regardless of its relevancy.
(Ord. 870 § 2, 2004)
Any party with a legal interest in the subject license or permit
who appears at the hearing shall have the following rights: (1) to
call and examine witnesses; (2) to introduce documentary and physical
evidence; (3) to cross-examine opposing witnesses; (4) to impeach
any witness regardless of which party first called the witness to
testify; (5) to rebut evidence; and (6) to be represented by anyone
who is lawfully permitted to do so.
(Ord. 870 § 2, 2004)
If the subject permit or license holder fails to attend the
scheduled administrative hearing, the hearing will proceed without
the permit or license holder and he or she will be deemed to have
waived his or her rights to be orally heard at the administrative
hearing.
(Ord. 870 § 2, 2004)
Following the administrative hearing, the hearing officer may
decide to uphold the notice of action recommendation, establish a
modified schedule for compliance (if applicable), overturn some or
all of the findings of the city manager or designee and/or rescind
the notice of action recommendation in part or in its entirety.
(Ord. 870 § 2, 2004)
Following the administrative hearing, the hearing officer shall
cause to be prepared and served a written notice of decision upon
the subject permit or license holder and the city manager or designee.
The decision of the hearing officer shall be final.
(Ord. 870 § 2, 2004)
The hearing officer shall serve the written notice of decision
to the subject permit or license holder within twenty calendar days
from the date the hearing is deemed closed. The hearing officer shall
also provide or cause to be provided a copy of the notice of decision
to the city manager or designee.
(Ord. 870 § 2, 2004)
The Notice of Decision shall contain a brief summary of the
evidence considered, findings of fact, a determination of the issues
presented, and the effective date of the decision.
(Ord. 870 § 2, 2004)
The hearing officer shall cause a copy of the notice of decision
to be provided to the subject permit or license holder either by causing
a copy of the notice of decision to be delivered to the permit or
license holder personally or by causing a copy of said notice of decision
to be delivered to the permit or license holder by certified mail,
postage prepaid, return receipt requested, and addressed to the permit
or license holder at the address shown on the subject permit or license.
A copy of the notice of decision shall also be provided to the city
manager or designee.
(Ord. 870 § 2, 2004)
The effective date of the Hearing Officer's Notice of Decision
shall be as stated therein or, if none provided, the date of the Notice
of Decision.
(Ord. 870 § 2, 2004)
Any appeal of an administrative determination by the hearing
officer involving the suspension, modification or revocation of a
permit, license or other entitlement pertaining to expressive conduct
protected by the state or federal constitution is eligible for expedited
administrative review by the city council.
(Ord. 870 § 2, 2004)
Any appeal to the city council of an administrative determination
by a hearing officer involving the suspension, modification or revocation
of a permit, license or other entitlement pertaining to expressive
conduct protected by the state or federal constitution shall be in
writing and shall contain the following information: (a) name(s) of
each appellant, (b) a brief statement in ordinary and concise language
of the specific items protested, together with any material facts
claimed to support the contentions of the appellant, (c) a brief statement
in ordinary and concise language of the relief sought, (d) the reasons
why the administrative determination by the hearing officer should
be rescinded, modified or otherwise set aside, and (d) the signatures
of all parties named as appellants and their mailing addresses.
(Ord. 870 § 2, 2004)
A.
Any
appeal to the city council of an administrative determination by the
hearing officer involving the suspension, modification or revocation
of a permit, license or other entitlement pertaining to expressive
conduct protected by the state or federal constitution ("administrative
appeal") shall be filed with the city clerk.
B.
The
administrative appeal shall be heard and decided by the city council
in a prompt and expedited way at the next regularly scheduled city
council meeting and in no event later than fifteen business days from
the date the written request for appeal was filed with the city clerk.
In the event that the next regularly scheduled city council meeting
will not be conducted within fifteen business days from the date the
written request for appeal was filed with the city clerk, the city
council shall schedule a Special city council meeting to hear and
decide the administrative appeal.
(Ord. 870 § 2, 2004)
Administrative determinations by the city council to suspend,
modify, or revoke a permit, license or other entitlement involving
expressive conduct protected by the State Constitution or the First
Amendment to the United States Constitution are deemed to constitute
final determinations by the city council which determinations are
eligible for expedited judicial review by the Superior Court of California
pursuant to the Writ of Mandate procedures set forth in California
Code of Civil Procedure Section 1084 et seq.
(Ord. 870 § 2, 2004)
