Any person to whom an exclusion notice is issued shall have a right to appeal as follows.
(A) Appeals shall be made to the City Council. All hearings regarding such appeals shall be conducted in accordance with City Council hearing procedures for de novo hearings.
(B) Copies of documents in the city’s control, which are intended to be used at the hearing, shall be made available, upon request, to the appellant.
(C) An appeal of a 90-day exclusion must be filed, in writing, by 5:00 p.m. of the fifth business day following issuance of the notice of exclusion.
(D) An appeal of a one-year conviction based exclusion must be filed, in writing, by 5:00 p.m. of the fifth business day following the date of conviction.
(E) An appeal of a denial of an application for a variance or revocation of a variance must be filed, in writing, by 5:00 p.m. of the fifth business day following the denial or revocation of the variance.
(F) A 90-day exclusion shall not take effect during the time that an appeal of the 90-day exclusion is pending. If no appeal is taken, the initial 90-day exclusion shall take effect at 12:01 a.m. on the eighth calendar day following the issuance of the notice of exclusion.
(G) A one year conviction based exclusion shall take effect at 12:01 a.m. on the calendar day following the date of conviction and, notwithstanding an appeal of the exclusion, shall remain in effect unless the City Council issues a contrary decision.
(H) At the hearing on an appeal of a 90-day exclusion, the city shall have the burden to show, by a preponderance of the evidence, that the exclusion is based upon probable cause to believe that the appellant committed any of the offenses enumerated in § 132.03(A) and that the conduct supporting the exclusion occurred within a drug-free zone.
(I) At the hearing on an appeal of a one-year conviction based exclusion, the city shall have the burden to show, by a preponderance of the evidence, that the appellant was convicted of any of the offenses enumerated in § 132.03(A) and that the conduct supporting the conviction occurred within a drug-free zone.
(J) (1) At the hearing on an appeal of a denial of an application for a variance, the city shall have the burden to show, by a preponderance of the evidence, that the denial was in accordance with this section.
(2) At the hearing on an appeal of a revocation of a variance, the city shall have the burden to show, by a preponderance of the evidence, that any of the conditions enumerated in this section supporting revocation existed at the time of revocation.
(3) At the hearing on an appeal of a 90-day exclusion, the following shall be prima facie evidence that the exclusion was based on probable cause to believe that the appellant committed any of the offenses enumerated in § 132.03(A):
(a) A determination by a Court having jurisdiction over the offense that forms the basis for the exclusion, that probable cause existed to arrest the person to whom the initial 90-day exclusion notice was issued for violation of any of the offenses enumerated in § 132.03(A); or
(b) An accusatory instrument charging the person to whom a 90-day exclusion notice was issued, for violation of any of the offenses enumerated in § 132.03(A).
(4) At the hearing on an appeal of a one year conviction based on exclusion, a judgement of conviction for any of the offenses that formed the basis for the exclusion, as enumerated in § 132.03(A) shall be conclusive evidence that the described conduct occurred.
(Ord. 354, passed 7-9-2001)