(a) Any retailer served with a written notice of penalties may request an administrative hearing to appeal the existence of the violation, the amount of the fine, and/or the length of the suspension by returning a completed hearing request form to the Office of the County Hearing Officer within ten days from the date of the written notice of penalties.
(b) The retailer shall include the following in or with the hearing request form:
(1) A statement indicating the reason the retailer contests the written notice of penalties;
(2) Any evidence the retailer wants the hearing officer to consider;
(3) An advance deposit of the amount of any fine challenged; and
(4) The address of the retailer and, if available, an email address that can be used for contact and correspondence by the Office of the County Hearing Officer and the Department. The retailer may request service of notice by mail.
(c) The hearing request form shall be deemed filed on the date received by the Office of the County Hearing Officer. A timely appeal shall stay enforcement of the appealed penalties while the appeal is ongoing.
(d) After receiving a timely hearing request form, the Office of the County Hearing Officer shall notify the department as soon as practicable and then shall schedule an administrative hearing. The Office of the County Hearing Officer shall provide the retailer and the department at least ten calendar days' written notice of the date, time, and place of the administrative hearing and the name of the hearing officer who will conduct the hearing. The notice shall be given to the retailer either by email, if requested, or by first class mail, postage prepaid.
(e) Between the time the retailer requests the administrative hearing and the time of the hearing officer's decision, the retailer, the department, and each of their representatives shall not engage in ex parte communications with the Office of the County Hearing Officer or the hearing officer regarding the matters at issue in the hearing.
(f) The hearing shall be conducted by the hearing officer on the date, time, and place specified in the notice to the retailer. A retailer's failure to appear at the hearing shall constitute an abandonment of the hearing request and a failure to exhaust administrative remedies as a precedent to judicially challenge the existence of the violation and the imposition of the fine and suspension.
(g) At the hearing, the retailer and the department shall have the opportunity to present evidence, including witnesses, relevant to the hearing officer's determination of the matter. Neither the provisions of the Administrative Procedure Act (Government Code Section 11500 et seq.) nor the formal rules of evidence in civil or criminal judicial proceedings shall apply to such hearing. The hearing officer may admit any evidence, including witnesses, relevant to the determination of the matter, except as otherwise provided in Section 4.64.160(c).
(h) The written notice of penalties and any other reports prepared by or for the department concerning the violation shall be admissible and accepted by the hearing officer as prima facie evidence of the violation and the facts stated in those documents.
(i) The hearing officer may continue the hearing from time to time, in his or her sole discretion, to allow for its orderly completion. After receiving the evidence submitted at the hearing, the hearing officer may further continue the hearing and request additional information from either the department or the retailer.
(j) After considering the evidence and testimony submitted the hearing officer shall issue a written decision regarding the matters properly raised in the request for administrative hearing. The hearing officer's decision shall:
(1) Be based on a preponderance of the evidence.
(2) Include a statement of the reasons for the decision.
(3) Be issued within twenty calendar days of the close of the hearing.
(4) Be served on both the retailer and the department. The decision shall be given to the retailer either by email, if requested, or by first class mail, postage prepaid.
(k) Based on the hearing officer's decision, the Office of the County Hearing Officer shall promptly refund to the retailer any amount of the advance fine deposit the department is not entitled to and shall provide the remainder to the department.
(l) The hearing officer's written decision shall constitute the final administrative decision of the city.
(Ord. 5502 § 2 (part), 2020: Ord. 5418 § 2 (part), 2017)