A. Appeals from any decision of the Permit Administrator pertaining to Commercial Cannabis Business Permits for manufacturing, cultivation, distribution, testing, and delivery-only retailers shall follow the process set forth in § 11.07.100 of this Code.
B. Appeals from any decision of the City Manager pertaining to Storefront Retail Commercial Cannabis Business Permits shall be conducted as follows:
1. A commercial cannabis storefront retail permittee may appeal any decision of 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 City Manager 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.
b. Statement that the person is appealing from a specified decision, action, or a particular part thereof, made by the City Manager.
c. True and correct copy of the notice issued by the City Manager for which the appellant is appealing.
d. Statement 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.
e. All documents or other evidence pertinent to the appeal that the appellant requests the City Council 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 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. If no appeal is timely filed in the event of a decision of nonrenewal, the Commercial Cannabis Business 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.
C. All appellants shall, subject to filing a timely written notice of appeal, obtain review thereof before the City Council or appointed hearing officer.
1. The administrative appeal shall be scheduled no later than sixty (60) calendar days, and no sooner than twenty- one (21) 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 business days before the date scheduled for the hearing. The City Council 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 without stipulation by all parties.
3. The City Council shall preside over the hearing on appeal, or in the alternative, the City Council may appoint a hearing officer to conduct the hearing if a quorum of the City Council is unavailable or unable to timely hear the appeal.
4. At the date, time and location set forth in the notice of appeal hearing, the City Council or an appointed hearing officer, shall hear and consider the testimony of the appellant(s), City staff, and/or their witnesses, as well as any documentary evidence properly submitted.
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 City Manager's notice 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 City Manager issuing a notice, 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 Council, or the appointed hearing officer, may also call witnesses, and examine any person who introduces evidence or testifies at any hearing.
e. The City Council, 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 City Council or hearing officer shall determine whether a particular fact or facts amount to a good cause on a case-by-case basis.
f. The appellant may bring a language interpreter to the hearing at his or her sole cost and expense.
g. 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 Council, or the appointed hearing officer, may 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 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. In the alternative, the City Council or the appointed hearing officer may hear the appeal and render a determination in the absence of the appellant.
D. Following the conclusion of the appeal hearing, the City Council or appointed hearing officer shall determine if any ground exists for the nonrenewal, suspension or revocation of a Commercial Cannabis Business Permit or other action. At the discretion of the City Council, deliberations on the appeal may be continued to the next City Council meeting. If the appeal is heard by a hearing officer, the determination shall be issued no later than ten days following the conclusion of the appeal hearing.
1. If the City Council or appointed hearing officer determines that no grounds for denial, nonrenewal, suspension, revocation, or other action exist, the City Manager's notice of decision shall be deemed cancelled. If the City Council or appointed hearing officer, determines that one or more of the reasons or grounds enumerated in notice of decision exists, a written final decision shall be issued within ten (10) days, which shall at minimum contain the following:
a. A finding and description of each reason or grounds for nonrenewal, suspension, revocation, or other action 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 Council or appointed hearing officer, is final and conclusive. The written final decision shall also contain the following statement: "The decision of the City Council [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 decision shall be served by first class mail on the appellant. If the appellant is not the owner of the premises in which the commercial cannabis storefront retail 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. No. 17-018 § 2 (part); Ord. No. 2017-020 § 2 (part); Ord. No. 2018-007 § 2 (part))