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 applicable pursuant to any provision of the
municipal code, and/or statute, rule, code or regulation. Multiple
permits and licenses held by the same user and subject to this chapter
may be heard simultaneously in the same proceeding.
(Prior code § 88.01; Ord. 660 4-17-18; Ord. 695 10-15-19)
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.
A notice of action recommendation is not required if the provisions
of this chapter are being used to conduct an appeal of a decision
to suspend, modify, or revoke a license or permit.
(Prior code § 88.02; Ord. 660 4-17-18; Ord. 695 10-15-19)
The notice of action recommendation should substantially 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.
If applicable,
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.
(Prior code § 88.03; Ord. 660 4-17-18; Ord. 695 10-15-19)
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 of action recommendation to
be delivered to the permit or license holder personally or by causing
a copy to be delivered to the permit or license holder by certified
mail, postage prepaid, return receipt requested, and addressed to
permit or license holder at the address shown on the permit or license.
(Prior code § 88.04; Ord. 660 4-17-18)
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.
(Prior code § 88.05; Ord. 660 4-17-18)
The Administrative 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.
(Prior code § 88.06; Ord. 660 4-17-18)
The Hearing Officer shall review all evidence, documents, and
written testimony and hear all oral testimony submitted by all interested
parties at or before the scheduled administrative hearing and render
all decisions and findings in writing to the permit or license holder
with a duplicate copy to the issuing official. The Hearing Officer
may accept, modify or reject the findings and determinations supporting
the recommendation.
(Prior code § 88.07; Ord. 660 4-17-18)
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.
(Prior code § 88.08; Ord. 660 4-17-18)
The City Manager, or designee, shall select the Hearing Officer
to conduct administrative hearings pursuant to this chapter. All Hearing
Officers shall be impartial third parties and shall not have any pecuniary
interest in the proceeding over which he or she is presiding, nor
any pecuniary interest in the outcome thereof.
(Prior code § 88.10; Ord. 660 4-17-18; Ord. 695 10-15-19)
The procedures adopted in this chapter by the City for the selection
of Hearing Officers shall not replace, substitute for, or in any way
affect the Administrative Hearing Board processes created by the uniform
and national codes adopted by the City and the administrative hearings
provided by the uniform and national codes shall be treated separate
and apart from the administrative hearing procedures adopted herein.
(Prior code § 88.11; Ord. 660 4-17-18)
As soon as practicable, but allowing sufficient time for providing
notice of the hearing, the Hearing Officer shall fix a date, time
and place for the hearing of the appeal and shall instruct the issuing
official of the same. The issuing official 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.
(Prior code § 88.12; Ord. 660 4-17-18)
The issuing official shall cause a copy of the hearing notice
to be provided to the subject permit or license holder either by causing
a copy of the notice to be delivered to such person(s) personally
or by causing a copy of the 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.
(Prior code § 88.13; Ord. 660 4-17-18)
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 retained by the issuing official.
(Prior code § 88.14; Ord. 660 4-17-18)
A.
The
issuing official 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, if applicable,
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.
B.
At least
five days prior to the hearing, the persons or entities subject to
a notice of action recommendation shall be provided with a copy of
the issuing official’s administrative hearing packet. A copy
of any written documents prepared by the subject permit or license
holder for the Hearing Officer’s review shall likewise be provided
to the City at least five days prior to the hearing. No other discovery
is permitted. No additional reports or post-hearing briefs shall be
permitted.
(Prior code § 88.15; Ord. 660 4-17-18; Ord. 695 10-15-19)
The Hearing Officer shall hear any evidence offered in support
of or in protest of the proposed action provided such evidence is
relevant to the issues of the hearing. The Hearing Officer has the
authority to determine the relevance of any evidence to the hearing
and the authority to exclude unduly repetitious and cumulative evidence,
regardless of its relevancy. The Hearing Officer shall not be limited
by the technical rules of evidence.
(Prior code § 88.16; Ord. 660 4-17-18)
Any party with a legal interest in the subject license or permit
who appears at the hearing shall have the following rights:
A.
To call
and examine witnesses;
B.
To introduce
documentary and physical evidence;
C.
To cross-examine
opposing witnesses;
D.
To impeach
any witness regardless of which party first called the witness to
testify;
E.
To rebut
evidence; and
F.
To be
represented by anyone who is lawfully permitted to do so.
(Prior code § 88.17; Ord. 660 4-17-18)
If the subject permit or license holder fails to attend the
scheduled 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 hearing.
(Prior code § 88.18; Ord. 660 4-17-18)
The Hearing Officer shall cause to be prepared and served a
written notice of decision upon the subject permit or license holder
following the hearing. The decision of the Hearing Officer shall be
final.
(Prior code § 88.19; Ord. 660 4-17-18)
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.
(Prior code § 88.20; Ord. 660 4-17-18)
The notice of decision shall be served upon the subject permit
or license holder within 30 days from the date the hearing is deemed
closed. The notice of decision shall be served either 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 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 subject permit or license.
(Prior code § 88.21; Ord. 660 4-17-18)
Proof of service of the notice of decision 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 of decision and shall be retained by the issuing
official.
(Prior code § 88.22; Ord. 660 4-17-18)
The effective date of the decision and order of the Hearing
Officer shall be as stated therein.
(Prior code § 88.23; Ord. 660 4-17-18)
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
judicial review pursuant to the applicable Code(s) of Civil Procedure.
(Prior code § 88.24; Ord. 660 4-17-18; Ord. 695 10-15-19)
The prevailing party in any proceeding conducted pursuant to
this chapter and associated with the abatement of a public nuisance
shall be entitled to recovery of attorney’s fees incurred in
any such proceeding. In no proceeding shall an award of attorney’s
fees to a prevailing party exceed the amount of reasonable attorney’s
fees incurred by the City in the proceeding.
(Ord. 660 4-17-18; Ord. 695 10-15-19)
