A. Hearing
Examiners. The Board may appoint one or more Hearing Examiners or
designate one or more of its members to serve as Hearing Examiners
to conduct the hearings. The Examiner hearing the case shall exercise
all powers relating to the conduct of hearings until it is submitted
by him or her to the Board for decision.
B. Record.
A record of the entire proceedings shall be made by tape recording,
or by any other means of permanent recording determined to be appropriate
by the Board.
C. Continuances.
The Board may grant continuances for good cause shown; however, when
a Hearing Examiner has been assigned to such hearing, no continuances
may be granted except by him or her for good cause shown so long as
the matter remains before him or her.
D. Oaths—Certification.
In any proceedings under this chapter, the Board, any Board member,
or the Hearing Examiner has the power to administer oaths and affirmations
and to certify to official acts.
E. Reasonable
Dispatch. The Board and its representatives shall proceed with reasonable
dispatch to conclude any matter before it. Due regard shall be shown
for the convenience and necessity of any parties or their representatives.
(Ord. 1079-A § 601, 2005)
The notice to appellant shall be substantially in the following
form, but may include other information:
You are hereby notified that a hearing will be held before the
Board of Appeals or Hearing Examiner at _______ on the _______day
of _______, _______, at the hour _______, upon the notice and order
served upon you. You may be present at the hearing. You may be, but
need not be, represented by counsel. You may present any relevant
evidence and will be given full opportunity to cross-examine all witnesses
testifying against you. You may request the issuance of subpoenas
to compel the attendance of witnesses and the production of books,
documents or other things by filing an affidavit therefor with Board
of Appeals or Hearing Examiner.
(Ord. 1079-A § 602, 2005)
A. Filing
an Affidavit. The Board or Examiner may obtain the issuance and service
of a subpoena for the attendance of witnesses or the production of
other evidence at a hearing upon the request of a member of the Board
or upon the written demand of any party. The issuance and service
of such subpoena shall be obtained upon the filing of an affidavit
therefor which states the name and address of the proposed witness;
specifies the exact things sought to be produced and the materiality
thereof in detail to the issues involved; and states that the witness
has the desired things in his or her possession or under his or her
control. A subpoena need not be issued when the affidavit is defective
in any particular.
B. Cases
Referred to Examiner. In cases where a hearing is referred to an Examiner,
all subpoenas shall be obtained through the Examiner.
C. Penalties.
Any person who refuses without lawful excuse to attend any hearing
or to produce material evidence in his or her possession or under
his or her control as required by any subpoena served upon such person
as provided for herein shall be guilty of a misdemeanor.
(Ord. 1079-A § 603, 2005)
A. Rules.
Hearings need not be conducted according to the technical rules relating
to evidence and witnesses.
B. Oral
Evidence. Oral evidence shall be taken only on oath or affirmation.
C. Hearsay
Evidence. Hearsay evidence may be used for the purpose of supplementing
or explaining any direct evidence, but shall not be sufficient in
itself to support a finding unless it would be admissible over objection
in civil actions in courts of competent jurisdiction in this state.
D. Exclusion
of Evidence. Irrelevant and unduly repetitious evidence shall be excluded.
E. Rights
of Parties. Each party shall have these rights, among others:
1. To
call and examine witnesses on any matter relevant to the issue of
the hearing;
2. To
introduce documentary and physical evidence;
3. To
cross-examine opposing witnesses on any matter relevant to the issues
of the hearing;
4. To
impeach any witness regardless of which party first called him or
her to testify;
5. To
rebut the evidence against him or her;
6. To
represent him or herself or to be represented by anyone of his or
her choice who is lawfully permitted to do so.
F. Official
Notice.
1. What
May be Noticed. In reaching a decision, official notice may be taken,
either before or after submission of the case for decision, of any
fact which may be judicially noticed by the courts of this state or
of official records of the Board or departments and ordinances of
the City or rules and regulations of the Board.
2. Parties
to be Notified. Parties present at the hearing shall be informed of
the matters to be noticed, and these matters shall be noted in the
record, referred to therein, or appended thereto.
3. Opportunity
to Refute. Parties present at the hearing shall be given a reasonable
opportunity, on request, to refute the officially noticed matters
by evidence or by written or oral presentation of authority, the manner
of such refutation to be determined by the Board or Hearing Examiner.
4. Inspection
of the Premises. The Board or the Hearing Examiner may inspect any
building or premises involved in the appeal during the course of the
hearing, provided that:
a. Notice of such inspection shall be given to the parties before the
inspection is made;
b. The parties are given an opportunity to be present during the inspection;
and
c. The Board or the Hearing Examiner shall state for the record upon
completion of the inspection the material facts observed and the conclusions
drawn therefrom. Each party then shall have a right to rebut or explain
the matters so stated by the Board or Hearing Examiner.
(Ord. 1079-A § 604, 2005)
A. Hearing
Before Board Itself. Where a contested case is heard before the Board
itself, no member thereof who did not hear the evidence or has not
read the entire record of the proceedings shall vote on or take part
in the decision.
B. Hearing
Before Examiner. If a contested case is heard by a Hearing Examiner
alone, he or she shall within a reasonable time (not to exceed 90
days from the date the hearing is closed) submit a written report
to the Board. Such report shall contain a brief summary of the evidence
considered and state the Examiner's findings, conclusions and recommendations.
The report shall also contain a proposed decision in such form that
it may be adopted by the Board as its decision in the case. All Examiner's
reports filed with the Board shall be matters of public record. A
copy of each such report and proposed decision shall be mailed to
each party on the date they are filed with the Board.
C. Consideration
of Report by Board—Notice. The Board shall fix the time, date
and place to consider the Examiner's report and proposed decision.
Notice thereof shall be mailed to each interested party not less than
five days prior to the date fixed, unless it is otherwise stipulated
by all of the parties.
D. Exceptions
to Report. No later than two days before the date set to consider
the report, any party may file written exceptions to any part or all
of the Examiner's report and may attach thereto a proposed decision
together with written argument in support of such decision. By leave
of the Board, any party may present oral argument to the Board.
E. Disposition
by the Board. The Board may adopt or reject the proposed decision
in its entirety, or may modify the proposed decision.
F. Proposed Decision Not Adopted. If the proposed decision is not adopted as provided in subsection
E of this section, the Board may decide the case upon the entire record before it, with or without taking additional evidence; or may refer the case to the same or another Hearing Examiner to take additional evidence. If the case is reassigned to a Hearing Examiner, he or she shall prepare a report and proposed decision as provided in subsection
B of this section after any additional evidence is submitted. Consideration of such proposed decision by the Board shall comply with the provisions of this section.
G. Form
of Decision. The decision shall be in writing and shall contain findings
of fact, a determination of the issues presented, and the requirements
to be complied with. A copy of the decision shall be delivered to
the appellant personally or sent to him or her by certified mail,
postage prepaid, return receipt requested.
H. Effective
Date of Decision. The effective date of the decision shall be as stated
therein.
(Ord. 1079-A § 605, 2005)