(A) Challenge to suspension or revocation. If the City Manager or his or her designee notifies a licensee in writing of the pending suspension or revocation of a license as provided in § 173.021, then the suspension or revocation shall become final and effective fifteen (15) days after mailing to the licensee's record address, posting at the licensed establishment, or actual delivery of the notice to the licensee, unless within fifteen (15) days of the date of the notice of suspension or revocation the licensee first files with the City Manager or his or her designee a written response stating the reasons why the suspension or revocation is alleged to be in error or inappropriate and a written notice of intent to challenge the suspension or revocation requesting a hearing to determine whether the suspension or revocation will become effective. The suspension or revocation shall be abated in the event that a licensee files a timely challenge to the suspension or revocation in accordance with the procedures of this chapter or upon an order of a court of competent jurisdiction. A suspension or revocation already in effect, but not previously challenged in a suspension or revocation hearing, may be challenged in the same manner but is not abated during the proceedings.
(B) Hearing on suspension or revocation. When a licensee files a written response and notice of intent to challenge a pending or existing suspension or revocation then a public hearing to determine if the pending suspension or revocation will become effective and final shall be held by a hearing officer appointed by the City Council. The City Manager or his or her designee shall notify the City Attorney and any appropriate city officers who shall schedule and provide notice of the hearing date and time.
(1) Appointment, term and compensation of hearing officer:
(a) Three (3) hearing officers shall be appointed by the City Council, and they shall be attorneys duly licensed to practice law in the state, who have practiced in the state for at least five (5) years.
(b) Hearing officers shall be subject to removal with or without cause, by the City Council. Hearing officers shall not be considered to be city employees, although they may receive compensation for their services and also may be reimbursed for such travel, mileage and per diem expenses as may be authorized.
(c) Because only attorneys may hold the position of hearing officer, the City Council shall not be required to retain an attorney to represent the hearing officer.
(d) It shall be unlawful for a hearing officer to act as an agent or an attorney for a party involved in a determination under the provisions of this section or to be otherwise involved with any matter arising under this section which will come before the city during the term of the hearing officer's appointment. Further, a hearing officer shall not initiate or consider ex parte communications or other communications with any party of interest to a hearing officer concerning the substance of any proceeding to be heard by a hearing officer. However, the foregoing does not prohibit discussions between the hearing officer and city staff that pertain solely to scheduling and other administrative matters unrelated to the merits of the application. If a person engages in an ex parte communication with the hearing officer, the hearing officer shall place on the record of the pending case all ex parte written communications received, all written responses to such communications, a memorandum stating the substance of all oral communications received, and all oral responses made, and shall advise all parties that such matters have been placed on the record. Any party desiring to rebut the ex parte communication shall be entitled to do so but only if such party requests the opportunity for rebuttal within ten (10) days after notice of such communication. If he or she deems it necessary due to the effect of an ex parte communication received by him or her, the hearing officer may withdraw from the case and the City Council shall appoint another hearing officer to handle the case.
(e) Selection of hearing officer. The City Manager and licensee shall each have the right to eliminate one (1) of the three (3) hearing officers selected by the City Council. The one (1) hearing officer not eliminated by either party shall act as the hearing officer for the license revocation hearing. In the event licensee objects to all three (3) hearing officers, then the City Council shall choose the hearing officer from the list of three (3) hearing officers absent a showing of clear prejudice by the licensee.
(2) The hearing officer shall have the power to:
(a) Adopt rules for the conduct of the hearing;
(b) Subpoena licensees and witnesses to its hearings. Subpoenas may be served by the Police Department and/or other law enforcement agencies with jurisdiction to serve subpoenas;
(c) Subpoena evidence to its hearings;
(d) Administer oaths and take testimony under oath; and
(e) Issue an order having the force of law suspending or revoking the license.
(3) The suspension or revocation hearing shall be held within thirty (30) days of the City Manager's receipt of a written challenge and request for a hearing by the aggrieved licensee.
(4) The participants before the hearing officer shall be the licensee, any witnesses of the licensee, the City Manager or his or her designee and any witnesses of the City Manager or his or her designee. All witnesses shall provide their legal name, mailing addresses and telephone number.
(5) The procedures used shall be those typically used in a civil case with the City Manager or his or her designee having the burden of proof by clear and convincing evidence.
(6) Testimony and evidence may be submitted by any witness but shall be limited to matters directly relating to the grounds for suspension or revocation. Irrelevant, immaterial, or unduly repetitious testimony or evidence shall be excluded.
(7) All testimony shall be under oath. The hearing officer shall decide all questions of evidence, procedure and standing. All hearings shall be open to the public. Minutes shall be kept at all hearings. Unless otherwise mutually agreed to between the licensee and the City Manager or his or her designee, the order of presentation of testimony and evidence shall be as follows:
(a) The City Manager or his or her designee and any witnesses of the City Manager or his or her designee.
(b) The licensee and any witnesses of the licensee.
(c) Rebuttal witnesses from the City Manager or his or her designee.
(d) Rebuttal witnesses from the licensee.
(e) Summation by the City Manager or his or her designee.
(f) Summation by the licensee.
(8) The hearing officer may also call and question witnesses or request additional evidence as the hearing officer deems necessary and appropriate.
(9) The city shall provide a hearing room and clerical staff as may be reasonably required by the hearing officer to conduct hearings and perform his or her duties.
(10) Each party to the hearing shall have the right to call and examine witnesses, introduce exhibits, cross-examine opposing witnesses, impeach witnesses and rebut evidence.
(11) The licensee has the right, at his or her own expense, to be represented by an attorney at any hearing.
(12) All testimony before the hearing officer shall be under oath and shall be recorded. The licensee or the city may cause a verbatim record of the proceedings to be made.
(13) If the hearing officer comes to believe that any facts, claims, or allegations necessitate additional review or response by either the licensee or the City Manager or his or her designee, then the hearing officer may order the hearing continued until an announced date certain, not to exceed thirty (30) days from the date of continuance. The hearing officer shall render a final decision on the appeal within sixty (60) days of the City Manager's receipt of licensee's written notice of challenge.
(14) Hearing officers may allow the parties to submit written proposed findings of fact and conclusions of law following the hearing and shall advise the parties of the timetable for so doing, if allowed.
(15) At the conclusion of the hearing within the time prescribed herein, the hearing officer shall issue an order setting forth findings of fact, based on evidence of record, and issue conclusions of law regarding whether the suspension or revocation will become or remain effective, and shall render relief in the order affording the proper relief consistent with powers granted in this section.
(C) Filing of decision. The original of the written decision of the hearing officer shall be filed with the City Clerk and copies shall be delivered or mailed to the licensee, the City Manager or his or her designee and the Police Department.
(D) Judicial review. Any person who participated in a suspension or revocation hearing before the hearing officer and who is aggrieved by the decision of the hearing officer may immediately challenge the decision in any court of competent jurisdiction pursuant to the Rules of Procedure of that court. The record of the hearing shall consist of the complete record of the proceedings before the hearing officer. The hearing officer's decision shall be promptly reviewed by the court.
(E) Requirement of exhaustion procedures. Judicial review of a suspension or revocation, or related hearing or appeal proceedings, shall be available only after the administrative procedures and remedies set forth in this section have been exhausted.
(F) Notice of final suspension or revocation. If no response or request for a suspension or revocation hearing is filed within fifteen (15) days of the notice of a pending suspension or revocation, or if the licensee who requested the hearing does not appear at the suspension or revocation hearing after notice, or if the hearing officer decides after a hearing that a pending suspension or revocation will become final, then the City Manager or his or her designee shall issue to the licensee notice of final suspension or revocation of the adult entertainment license and mail or arrange delivery of the notice to the licensee's record address.
(G) Effective date of suspension or revocation. The suspension or revocation of a license shall take effect the day after delivery of a notice of final suspension or revocation to the licensee in person, by posting on the licensed establishment, or by mail to the licensee's record address, or on the date the licensee surrenders the license, whichever happens first. The licensee shall immediately return and surrender a revoked license to the City Manager or his or her designee or surrender the revoked license, upon demand, to a member of the Police Department.
(Ord. 2007-29, passed 4-30-07)