(A) Subject to § 117.09(D), if the City Clerk of the City of Mt. Vernon or his designee determines that facts exist for denial of a new license or denial of a renewal or suspension of a license or revocation of a license under this Chapter 117, the City Clerk or his designee shall notify the applicant or licensee (respondent) in writing of the denial or of the intent to suspend or revoke the license, including the grounds therefor, by personal delivery or by U.S. certified mail. The notification shall include a statement of the respondent’s rights of appeal under this subsection. The notification shall be personally served or mailed by certified mail to the mailing address on file with the City Clerk for the respondent. Within ten business days of receipt of such notice, the respondent may provide to the City Clerk or his designee a written response that shall include a statement of reasons why the respondent believes the license should not be denied, suspended or revoked. If no response is received by the City Clerk then a final notice of denial, suspension, or revocation shall be served upon respondent by personal service or certified mail. If a response is received, within five business days of the receipt of the response, the City Clerk or Hearing Officer shall notify respondent in writing of a hearing date on the respondent’s denial, suspension or revocation proceeding. Within ten business days of the receipt of respondent’s written response the Hearing Officer shall conduct a hearing at which hearing the respondent shall have the opportunity to present all of respondent’s arguments and to be represented by counsel, to present evidence and witnesses on his own behalf and to cross-examine witnesses; witnesses shall be sworn and the proceeding recorded. The City Clerk shall also be represented by counsel and shall bear the burden of proving by a preponderance of the evidence the grounds for denying, suspending, or revoking the license. The Hearing Officer shall issue and serve upon respondent by personal service or by U.S. certified mail a written opinion within five business days after conclusion of the hearing. If applicable, respondent shall receive a final notice of denial or suspension or revocation which shall be included in the Hearing Officer’s Order; said final notice shall include a statement advising the respondent of the right to appeal under this subsection. If the Hearing Officer finds that no grounds exist for denial of the license then the City Clerk or his designee shall issue the license to the applicant, or if the City Clerk fails to issue said license within two business days, the Hearing Officer shall issue the license. BUSINESS DAY means any day that City Hall is open to the public for the transaction of business.
(B) When a decision to deny, suspend or revoke a license becomes final, the applicant or licensee whose application for a license has been denied or whose license has been suspended or revoked shall have the right to seek judicial review and to appeal or challenge such action to any court of competent jurisdiction and proper venue. If a court action challenging the Hearing Officer’s decision is initiated, the City shall timely and without delay prepare and transmit to the court a transcript of the hearing.
(C) (1) An applicant for a new sexually oriented business license, as opposed to a renewal, may but is not required to participate in the appeal (hearing) process set forth within paragraph (A) above. An applicant whose application for a new license has been denied by the City Clerk and who disagrees with the decision may at the applicant’s sole election:
(a) participate in the appeal process as set forth within paragraph (C)(1) above or
(b) give written notice to the City Clerk after notice of denial of the license, of the applicant’s “Intent to Open” the sexually oriented business without a license on the tenth calendar day after the date of the Written Notice of Intent to Open is filed in the Office of the City Clerk; upon filing, said Notice shall be marked by the City Clerk with the date and time of filing.
(2) (a) If the applicant elects to give Written Notice of Intent to Open as provided above, then the City of Mt. Vernon must within the 10-day period designated within the Notice of Intent to Open petition the Illinois Second Judicial Circuit Court or any Court of competent jurisdiction and proper venue and obtain injunctive relief or other appropriate relief. The Court in which the petition for injunctive relief or other judicial relief is filed shall determine whether the applicant meets the requirements for issuance of a sexually oriented business license under § 117.10 and determine the validity of any provision thereof that the applicant does not meet and shall in accordance with Article XI, Part I of the Illinois Code of Civil Procedure, being 735 ILCS 5/11-101, or other applicable statute grant such relief as the Court deems necessary and appropriate. If the City fails to petition for injunctive relief or if the Court fails to issue the injunctive relief or grant such other relief as requested denying the license or enjoining the sexually oriented business from opening prior to expiration of the 10-day period described within the Notice of Intent to Open, the license shall be deemed to be issued, although the licensee and the licensed premises must still comply with all provisions of this Chapter 117 the same as if the license had been issued by the City Clerk, as a failure or inability of the City to obtain injunctive relief or other judicial relief does not excuse compliance by the licensee with any provision of this Chapter 117, except the license requirement or such requirement as determined by a Court not to be applicable or enforceable. The license and licensee shall, except as provided within § 117.16(C) also be subject to all provisions of this Chapter 117 relating to renewal of a license, suspension of a license, or revocation of a license. If the City does not petition for injunctive relief or other judicial relief within the 10-day period described within the Notice of Intent to Open and if the license is deemed to be issued, the City may nonetheless petition the Court for injunctive relief or other judicial relief or initiate proceedings under this § 117.17 to suspend or revoke the license; provided, however, that a “license deemed to be issued” shall be entitled to the same stay of proceedings to preserve the status quo as provided for a license actually issued by the City Clerk. In addition, if an applicant elects to seek an appeal to the City Hearing Officer of a decision of the City Clerk denying a license, the applicant shall still retain and be entitled to exercise its rights under this subparagraph and give the “Written Notice of Intent to Open” after the Hearing Officer issues a final notice of denial.
(b) 1. An applicant for a new sexually oriented business employee license, as opposed to a renewal, may but is not required to participate in the appeal (hearing) process set forth within paragraph (C)(1) above. An applicant whose application for a new employee license has been denied by the City Clerk and who disagrees with the decision may at the applicant’s sole election:
a. participate in the appeal process as set forth within paragraph (C)(1) above or
b. give written notice to the City Clerk after notice of denial of the license, of the applicant’s “Intent to Be Employed” by the sexually oriented business without a license upon expiration of twenty-four hours from the date and time the Written Notice of Intent to Be Employed is filed in the Office of the City Clerk; upon filing, said Notice shall be marked by the City Clerk with the date and time of filing.
2. If the applicant elects to give Written Notice of Intent to Be Employed as provided above, then the City of Mt. Vernon must within the 24 hour period designated within the Notice of Intent to Be Employed petition the Illinois Second Judicial Circuit Court or any court of competent jurisdiction and proper venue and obtain injunctive relief or other appropriate relief. The Court in which the petition for injunctive relief or other judicial relief is filed shall determine whether the applicant meets the requirements for issuance of a sexually oriented business employee license under § 117.11 and determine the validity of any provision thereof that the applicant does not meet and shall in accordance with Article XI, Part I of the Illinois Code of Civil Procedure or other applicable statute grant such relief as the court deems necessary and appropriate. If the City fails to petition for injunctive relief or if the Court fails to issue the injunctive relief or grant such other relief as requested denying the license or enjoining the applicant from being employed prior to expiration of the 24-hour period described within the Notice of Intent to Be Employed, the license shall be deemed to be issued, although the licensee must still comply with all provisions of this Chapter 117 the same as if the license had been issued by the City Clerk, as a failure or inability of the City to obtain injunctive relief or other judicial relief does not excuse compliance by the licensee with any provision of this Chapter 117, except the license requirement. The license and licensee shall, except as provided within § 117.16(C), also be subject to all provisions of this Chapter 117 relating to renewal of a license, suspension of a license, or revocation of a license. If the City does not petition the Court for injunctive relief or other judicial relief within the period described within the Notice of Intent to Be Employed and if the license is deemed to be issued, the City may nonetheless petition for injunctive relief or other judicial relief or initiate proceedings under § 117.17 to suspend or revoke the license; provided, however, that a “license deemed to be issued” shall be entitled to the same stay of proceedings to preserve the status quo as provided for a license actually issued by the City Clerk. In addition, if an applicant elects to seek an appeal to the City Hearing Officer of a decision of the City Clerk denying a license, the applicant shall still retain and be entitled to exercise its rights under this subparagraph and give the “Written Notice of Intent to Be Employed” after the Hearing Officer issues a final notice of denial.
(D) Notwithstanding any provisions of this subsection, in the event the licensee appeals the denial of a renewal application or the suspension of a license or revocation of a license, the status quo immediately prior to such denial, suspension or revocation shall be maintained throughout the pendency of the appeal including the hearing process within subparagraph (A) above up to and including judicial review as provided within subparagraph (B) above. Upon a judicial decision being entered, the stay to preserve the status quo provided herein shall cease and the order or decision of the court shall determine whether an additional stay is appropriate, required or permitted by law.
(Prior Code, Art. 11, § 11.15.17)