(A) Notice of appeal.
(1) Within ten calendar days after the issuance notice of the decision of the Director or TAC to revoke, suspend, modify or deny the issuance or renewal of a CCBP, the applicant or permittee may appeal such action by filing a written notice of appeal with the City Clerk setting forth the reason why the decision was not proper. The grounds for the appeal shall be stated with specificity. A decision to rank and/or score an application pursuant to § 6B.20 shall not be subject to appeal.
(2) The notice of appeal shall be in writing and signed by the person making the appeal (“appellant”), or their legal representative, and shall contain the following:
(a) Name, address, and telephone number of the appellant;
(b) Specify the decisions, actions, or a particular part thereof, made that are the subject of the appeal;
(c) Include a true and correct copy of the notice and/or decision issued by the Director or TAC 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 Council, or any appointed hearing officer, to understand the nature of the controversy, the basis of the appeal, and the relief requested;
(e) All available documents or other evidence pertinent to the appeal that the appellant requests the hearing officer or body to consider at the hearing; and
(f) A non-refundable appeal fee, as established by resolution of the City Council.
(3) Failure of the appellant to timely submit a written appeal constitutes a waiver of the right to appeal any appealable notice and/or decision of Director or TAC. In this event, such notice of revocation, suspension and/or other action is final and binding and shall become effective upon the expiration of the period for filing a written notice of appeal.
(4) In the event a written notice of appeal is timely filed, the non-renewal, 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 or body.
(B) Appeal hearing and proceedings.
(1) All appellants shall, subject to filing a timely written notice of appeal and payment of fees, be entitled to a hearing before the City Council, or appointed hearing officer or body.
(2) Upon receipt by the City Clerk of a timely-filed appeal, the City Clerk shall place on the next regularly scheduled City Council meeting or earlier special council meeting the question of whether the City Council itself shall hear the appeal. The City Council’s decision shall be limited to whether or not to hear the appeal or delegate that authority and shall not include consideration or discussion of the merits or facts of the appeal. In the event that the City Council does not affirmatively choose to hear such appeal or does not act to appoint another body to serve to hear such appeal, the City Clerk shall obtain the services of a hearing officer from the state Office of Administrative Hearings or other agency or organization that provides neutral hearing officers.
(3) The administrative appeal shall be scheduled no later than 45 days, and no sooner than 30 days, after receipt of a timely-filed notice of appeal, if such appeal is to be heard by the City Council or other city-appointed body. If the state Office of Administrative Hearings or other agency or organization is utilized for such hearing, then the hearing shall be scheduled as expeditiously as possible pursuant to the availability of a hearing officer. 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 days before the date of the hearing (“notice of appeal hearing”).
(C) At the date, time and location set forth in the notice of appeal hearing, the City Council, or an appointed hearing officer or body, shall hear and consider the testimony of the appellant(s), city staff, and/or their witnesses, as well as any documentary evidence properly submitted for consideration.
(D) The following rules shall apply to the appeal hearing:
(1) The hearing shall be a new (i.e., "de novo”) hearing based on a preponderance of the evidence standard. The formal or technical rules of evidence shall not apply. However, irrelevant, collateral, undue, and/or repetitious testimony or other evidence may be excluded. The appellant bears the burden of proof on appeal.
(2) The City Council, or appointed hearing officer or body, 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 appointed hearing officer or body, shall determine whether a particular fact or facts amount to a good cause on a case-by-case basis.
(3) The appellant may bring a language interpreter to the hearing at their sole expense.
(4) All parties may, at their own discretion, record the hearing by stenographer or court reporter, audio recording, or video recording. If the appellant requests from the city that said recording take place, the costs of same shall be deposited with the city at the time the notice of appeal is submitted to the city.
(E) The appellant or their legal representative’s failure to appear at the appeal hearing shall constitute both the appellant’s waiver of the right to appeal and a failure to exhaust all administrative remedies. In such instance, Director or TAC’s notice of decision is final and binding.
(F) Decision of the City Council, or appointed hearing officer or body; final decision.
(1) Following the conclusion of the appeal hearing, the City Council, or appointed hearing officer or body shall determine if any ground exists for the non-issuance, non-renewal, suspension or revocation of the commercial cannabis permit or other appealed action and shall issue a written decision within ten business days thereof.
(2) The decision of the City Council, or appointed hearing officer or body, is final and conclusive and is subject to the time limits set forth in California Code of Civil Procedure § 1094.6.
(G) A copy of the final decision shall include notification of the time limits of California Code of Civil Procedure § 1094.6 and be served by certified, first-class U.S. Mail on the appellant. If the appellant is not the owner of the real property in which the commercial cannabis 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. 1063, passed 2-15-2022)