A. Notice of, and time to, appeal, and effect of timely appeal.
1. An applicant or permittee of a massage establishment may appeal the decision of the Permit Administrator to the City Manager, by filing with the City Clerk a written notice of appeal within fifteen (15) calendar days from the date of service of the notice issued by the Permit Administrator of his or her decision.
2. The notice of appeal shall be in writing and signed by the person making the appeal ("appellant"), or his or her legal representative, and shall contain the following:
a. Name, address, and telephone number of the appellant, as well as indication of whether the appellant is the applicant or permittee of a massage establishment with a City-issued massage establishment permit.
b. Specify that the person is appealing from a specified decision, action, or a particular part thereof, made by the Permit Administrator.
c. Include a true and correct copy of the notice of decision issued by the Permit Administrator for which the appellant is appealing.
d. 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 Manager, or any appointed hearing officer, to understand the nature of the controversy, the basis of the appeal, and the relief requested.
e. All documents or other evidence pertinent to the appeal that the appellant requests the City Manager to consider at the hearing.
3. Failure of the City Clerk to receive a timely appeal constitutes a waiver of the right to appeal the notice issued by the Permit Administrator. In this event, the Permit Administrator's notice of decision, determination and/or action is final and binding.
4. In the event a written notice of appeal is timely filed, the nonrenewal, suspension or revocation shall not become effective until a Final Order has been rendered and issued by the City Manager, or appointed hearing officer. If no appeal is timely filed in the event of a decision of nonrenewal, the massage establishment permit shall expire at the conclusion of the term of the permit. If no appeal is timely filed in the event of a decision of 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 Manager; appeal hearing and proceedings.
1. All appellants shall, subject to filing a timely written notice of appeal, obtain review thereof before the City Manager or appointed hearing officer. The administrative appeal shall be scheduled no later than sixty (60) calendar days, and no sooner than ten (10) calendar days, after receipt of a timely filed notice of appeal. 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) calendar days before the date of the hearing ("notice of appeal hearing").
2. 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 Manager may continue a hearing for good cause or on his or her own motion; however, in no event may the hearing be continued for more than thirty (30) calendar days without stipulation by all parties.
3. The City Manager shall preside over the hearing on appeal, or in the alternative, the City Manager may appoint a hearing officer to conduct the hearing.
4. At the date, time and location set forth in the notice of appeal hearing, the City Manager or an appointed hearing officer, shall hear and consider the testimony of the appellant(s), the Permit Administrator, and/or their witnesses, as well as any documentary evidence properly submitted by these persons.
5. The following rules shall apply at the appeal hearing:
a. 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.
b. The City bears the burden of proof to establish the grounds for denial, nonrenewal, suspension or revocation by a preponderance of evidence.
c. The issuance of the Permit Administrator's notice of decision constitutes prima facie evidence of grounds for the denial, nonrenewal, suspension or revocation, and City or County personnel who significantly took part in the investigation, which contributed to the Permit Administrator issuing a notice of decision, may be required to participate in the appeal hearing.
d. Each party shall have the right to introduce evidence, to present and examine witnesses, and to cross-examine opposing witnesses who have testified under direct examination. The City Manager, or the appointed hearing officer, may also call witnesses, and examine any person who introduces evidence or testifies at any hearing.
e. The City Manager, or the appointed hearing officer, may accept and consider late evidence not submitted initially with the notice of appeal upon a showing by the appellant of good cause. The hearing officer shall determine in his or her discretion whether a particular fact or facts amount to a good cause on a case-by-case basis.
f. The appellant and the Permit Administrator issuing the notice, may represent himself, herself or themselves, or be represented by a legal representative of his, her, or their choice.
g. The appellant may bring a language interpreter to the hearing at his or her sole expense.
h. The City may, at its discretion, record the hearing by stenographer or court reporter, audio recording, or video recording.
6. If the appellant, or his or her legal representative, fails to appear at the appeal hearing, the City Manager, or the appointed hearing officer, shall cancel the appeal hearing and send a notice thereof to the appellant by first class mail to the address(es) stated on the notice of appeal. A cancellation of a hearing due to nonappearance 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 Permit Administrator's notice of decision is final and binding.
C. Decision of City Manager, or his or her designee, or appointed hearing officer; final order.
1. Not later than fifteen (15) calendar days following conclusion of the appeal hearing, the City Manager, or appointed hearing officer, shall determine if any ground exists for the denial, nonrenewal, suspension or revocation of a massage establishment permit. If the City Manager, or appointed hearing officer, determines that no grounds for denial, nonrenewal, suspension or revocation exist, the Permit Administrator's notice of decision shall be deemed cancelled. If the City Manager, or appointed hearing officer, determines that one (1) or more of the reasons or grounds enumerated in the Permit Administrator's notice of decision exists, he or she shall issue a written Final Order, which shall at minimum contain the following:
a. A finding and description of each reason or grounds for denial, nonrenewal, suspension or revocation that exist.
b. Any other finding, determination or requirement that is relevant or related to the subject matter of the appeal.
2. The decision of the City Manager, or appointed hearing officer, is final and conclusive. The decision shall also contain the following statement: "The decision of the City Manager, or appointed hearing officer, is final and binding. Judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure Section 1094.6."
3. A copy of the Final Order shall be served by first class mail on the appellant. If the appellant is not the owner of the real property in which the massage establishment is located, or proposed to be located, a copy of the Final Order 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 Order shall not invalidate any action or proceeding by the City pursuant to this Chapter.
(Ord. No. 2016-009 § 2 (part))