A. Notice of appeals.
1. Within ten (10) calendar days after the notice of the decision of the City Manager or their designee(s) to revoke, suspend or deny an initial or renewed permit, or to add conditions to a permit, an aggrieved party may appeal such action by filing a written appeal with the City Clerk setting forth the reason why the decision was not proper. Reasons shall be stated with specificity and shall address the issues outlined in Section 5R.42.170(a). Date of service shall mean the date when a notice or written decision was personally delivered to the permittee, or the date when the notice was caused to be delivered by certified, first class mail. In cases in which the City can verify delivery of a notice to an applicant, or in which an applicant is documented as refusing delivery, lack of receipt of the notice cannot form the basis for an appeal.
2. The Notice of Appeal shall be in writing and signed by the person making the appeal (“appellant”), or their legal representative, and shall contain the following:
i. Name, address, and telephone number of the appellant.
ii. Specify decisions, actions, or a particular part thereof, made that are the subject of the appeal.
iii. Include a true and correct copy of the notice issued by the City Manager for which the appellant is appealing.
iv. State with specificity the reasons and grounds for making the appeal, including, but not limited to, a statement of facts upon which the appeal is based in sufficient detail to enable the City Council, or any appointed hearing officer, to understand the nature of the controversy, the basis of the appeal, and the relief requested.
v. All documents or other evidence pertinent to the appeal that the appellant requests the hearing officer or body to consider at the hearing.
vi. An appeal fee, as established by Resolution of the City Council.
3. Failure of the City Clerk to receive a timely appeal constitutes a waiver of the right to appeal the notice issued by the City Manager. In this event, City Manager’s notice of revocation, nonrenewal, suspension and/or other action is final and binding.
4. In the event a written Notice of Appeal is timely filed, the nonrenewal, suspension, revocation, or other action shall not become effective until a final decision has been rendered and issued by the City Council, or appointed hearing officer or body. Notices of appeal not served in a timely manner or served by non-operational businesses shall not serve to allow such businesses to operate pending appeal.
5. If no appeal is timely filed in the event of a decision of nonrenewal, the Commercial Cannabis Permit shall expire at the conclusion of the term of the permit. If no appeal is timely filed in the event of a decision supporting suspension or revocation, the suspension or revocation shall become effective upon the expiration of the period for filing a written Notice of Appeal.
B. Review by City Council, or appointed hearing officer or body; appeal hearing and proceedings.
1. All appellants shall, subject to filing a timely written Notice of Appeal, obtain review thereof before the City Council, or appointed hearing officer or body.
2. Upon receipt by the City Clerk of a timely-filed appeal, the City Clerk shall forward such appeal to each member of the City Council. Any member of the City Council may within ten (10) days of such notification then request that the City Clerk place on the next regularly scheduled City Council meeting or special Council meeting the question of whether the City Council shall sit as the appeals board. In the event that City Council does not affirmatively choose to hear such appeal or does not act to appoint another body to serve to head such appeal, the City Clerk shall immediately obtain the services of a hearing officer from the Office of Administrative Hearings.
3. The administrative appeal shall be scheduled no later than forty-five (45) days, and no sooner than thirty (30) days, after receipt of a timely filed Notice of Appeal if such appeal is to be heard by the City Council or other City-appointed body. If the Office of Administrative Hearings is utilized for such hearing, then the hearing shall be scheduled as expeditiously as possible pursuant to the availability of a hearing officer. The appellant(s) listed on the written Notice of Appeal shall be notified in writing of the date, time, and location of the hearing at least ten (10) days before the date of the hearing (“notice of appeal hearing”).
4. All requests by an appellant to continue a hearing must be submitted to the City Clerk in writing no later than three (3) business days before the date scheduled for the hearing. The City Council, or appointed hearing officer or body, may continue a hearing for good cause or on its own motion; however, in no event may the hearing be continued for more than thirty (30) calendar days, unless there is a stipulation by all parties to do so.
5. The City Council shall preside over the hearing on appeal, or at City Council’s discretion, the City Council may appoint a hearing officer or body to conduct the hearing.
C. At the date, time and location set forth in the Notice of Appeal hearing, the City Council, or an appointed hearing officer or body, shall hear and consider the testimony of the appellant(s), City staff, and/or their witnesses, as well as any documentary evidence properly submitted for consideration.
D. The following rules shall apply at the appeal hearing:
1. Appeal hearings are informal, and formal rules of evidence and discovery do not apply. However, rules of privilege shall be applicable to the extent they are permitted by law, and irrelevant, collateral, undue, and repetitious testimony may be excluded.
2. The City bears the burden of proof to establish the grounds for denial, nonrenewal, suspension or revocation of a permit by a preponderance of evidence. The appellant(s) or permittee(s) bear the burden of proof regarding denial of an initial permit, as described in Section 5.42.170.
3. The issuance of the City Manager’s notice constitutes prima facie evidence of grounds for the denial, nonrenewal, suspension or revocation, and City personnel who significantly took part in the investigation, which contributed to the City Manager issuing a notice of decision, may be required to participate in the appeal hearing.
4. The City Council, or the appointed hearing officer or body, may accept and consider late evidence not submitted initially with the Notice of Appeal upon a showing by the appellant of good cause. The City Council, or appointed hearing officer or body, shall determine whether a particular fact or facts amount to a good cause on a case-by-case basis.
5. The appellant may bring a language interpreter to the hearing at their sole expense.
6. The City may, at its discretion, record the hearing by stenographer or court reporter, audio recording, or video recording. If the appellant requests from the City that said recording take place, the costs of same shall be deposited with the City at the time the Notice of Appeal and appeal fee are submitted to the City.
E. If the appellant, or their legal representative, fails to appear at the appeal hearing, the City Council, or the appointed hearing officer or body, may cancel the appeal hearing and send a notice thereof to the appellant by certified, first class mail to the address(es) stated on the Notice of Appeal. A cancellation of a hearing due to non-appearance of the appellant shall constitute the appellant’s waiver of the right to appeal and a failure to exhaust all administrative remedies. In such instances, the City Manager’s notice of decision is final and binding.
F. Decision of the City Council, or appointed hearing officer or body; final decision.
1. Following the conclusion of the appeal hearing, the City Council, or appointed hearing officer or body, shall determine if any ground exists for the non-issuance, nonrenewal, suspension or revocation of a Commercial Cannabis Permit or other action. If the City Council, or appointed hearing officer or body, determines that no grounds for denial, nonrenewal, suspension, revocation, or other action exist, the City Manager’s notice of decision shall be deemed vacated. If the City Council, or appointed hearing officer or body, determines that one or more of the reasons or grounds enumerated in the notice of decision exists, a written final decision shall be issued within ten (10) business days, which shall at minimum contain the following:
i. A finding and description of each reason or grounds for non-issuance, nonrenewal, suspension, revocation, or other action that exists.
ii. Any other finding, determination or requirement that is relevant or related to the subject matter of the appeal.
iii. A holding that the City Manager’s decision is affirmed or modified.
2. The decision of the City Council, or appointed hearing officer or body, is final and conclusive and is subject to the time limits set forth in California Code of Civil Procedure Section 1094.6.
G. A copy of the final decision shall be served by certified, first class mail on the appellant. If the appellant is not the owner of the real property in which the commercial cannabis business is located, or proposed to be located, a copy of the final decision may also be served on the property owner by first class mail to the address shown on the last equalized assessment roll. Failure of a person to receive a properly addressed final decision shall not invalidate any action or proceeding by the City pursuant to this chapter.
(Ord. 2552 §1, Ord. 2589 §2)