(A) If the city, by act of the Finance Director or City Manager, refuses an application or a renewal of an application of a sexually-oriented business license or an application for a sexually-oriented business employee license, or if the city, by act of the City Manager, suspends or revokes a sexually-oriented business license or sexually-oriented business employee license, the City Manager shall advise the applicant or the license holder in writing of the denial, suspension or revocation, as the case may be, setting forth in writing the specific reasons for the action with a citation of the ordinance section which is the basis for the denial, suspension or revocation. Notice of the denial, suspension or revocation shall be served by registered mail or according to the state’s rules of civil procedure. The notice shall advise the applicant or license holder of the right to appeal within 15 days of receipt of service the decision/action to the Mayor and Board of Commissioners.
(B) Immediately upon the applicant’s appeal to the Mayor and Board of Commissioners, the city shall issue a temporary license to operate a sexually- oriented business or to work as a sexually-oriented business employee. This temporary license shall remain in effect throughout the final judicial review and the final decision on the denial, suspension or revocation. Upon appeal by the applicant or license holder to the Mayor and Board of Commissioners, the legislative body shall convene an administrative hearing on the appeal, which shall ensure the following due process guarantees.
(1) At appropriate stages of proceedings, the parties shall be given full opportunity to file pleadings, motions, objections, offers of settlement, briefs, proposed findings of fact and conclusions of law and proposed recommended or final orders. The original of all filings shall be mailed to the City Clerk and copies of any and all filed items shall be served on all parties by mail. The Clerk shall, when any filing is received, mark the document as received.
(2) The Mayor and Board of Commissioners shall authorize the issuance of subpoenas when requested by a party, and any party may apply to the county’s Circuit Court for an order requiring obedience.
(3) The proceedings shall guarantee all parties the opportunity to respond, present evidence, conduct cross-examinations and submit rebuttal evidence.
(4) The proceedings shall guarantee that any party may participate in person or be represented by counsel.
(5) If a party fails to attend or participate in any hearing or other stages of the process or fails to comply with any order of the Mayor and Board of Commissioners, the Mayor and Board of Commissioners may adjourn the proceedings and issue a default order granting or denying relief as appropriate or may conduct the proceedings without the participation of the defaulting party, having due regard for the interest of justice and the orderly and prompt conduct of the proceedings.
(6) The proceedings shall be open to the public.
(7) After the taking of evidence and argument of the parties or counsel, the Mayor and Board of Commissioners shall prepare findings of fact and conclusions of law and order either sustaining the decision/action of the City Manager, or sustaining the appeal of the applicant or license holder, or modifying the decision of the City Manager as they deem appropriate.
(8) The Mayor and Board of Commissioners shall make their findings of fact based exclusively on the evidence of record, and hearsay evidence may be admissible if it is the type of evidence that reasonable and prudent persons would rely on in their daily affairs, but it shall not be sufficient in itself to support a finding of fact unless it would be admissible over objections in civil actions.
(9) All testimony shall be made under oath or affirmation.
(10) The Mayor and Board of Commissioners shall cause all testimony, motions and objections in a hearing to be accurately and completely recorded. Any person, upon request and upon payment of the costs of copying, may receive a copy of the recording or a copy of the transcript if the hearing has been transcribed. The city shall have the burden to show the propriety of the decision/action taken against the applicant or license holder. The party asserting any affirmative defense has the burden to establish that defense. The ultimate burden of persuasion is met by a preponderance of evidence in the record.
(11) A licensee (applicant or license holder) may appeal an adverse decision of the Mayor and Board of Commissioners. The city shall take no action to enforce a decision to deny a license application or enforce a suspension or revocation of a licensee’s license during the 15-day period granted by this section to appeal the adverse administrative decision to the Mayor and the Board of Commissioners, or during the proceedings before the Mayor and Board of Commissioners. After a decision by the Mayor and Board of Commissioners suspending or revoking the license, the order may be enforced.
(12) If a licensee (applicant or license holder) appeals a decision of suspension or revocation to the county’s Circuit Court or court of competent jurisdiction, the enforcement of the adverse decision shall be stayed pending a final decision of the court or interim order temporarily enforcing the adverse order of denial, suspension or revocation.
(1984 Code, § 111.610) (Ord. O-30-99, passed 8-3-1999; Ord. O-40-99, passed 11-23-1999; Ord. O-9-00, passed 3-21-2000; Ord. O-33-02, passed 7-16-2002)