(a) Prompt Judicial Review. The City is aware of the Constitutional requirement to provide prompt judicial review to persons affected by this chapter. Since the City cannot legally mandate the timing of judicial review in these matters, the City has created a right to a temporary permit/license to maintain the status quo for a permittee/licensee while the permittee/licensee seeks quasi-judicial and judicial review of a suspension, revocation or denial of a renewal, in order to prevent the suppression of speech or expression protected by the First Amendment to the Constitution.
(b) If the Chief of Police issues a denial, suspension, or revocation of a permit or license, or an application for either under this chapter, the Chief of Police shall notify the applicant or permittee/licensee (respondent) in writing of the denial, suspension or revocation, including the grounds therefor, within three business days of such decision. The notification shall be directed as provided in Section 812.25. The notification shall include information regarding the right to file an appeal as described below.
(c) Within ten days of service of such notice, the respondent may provide to the City Manager in writing a response requesting an appeal hearing which shall include an address at which notice may be sent by overnight mail, an e-mail address for electronic notice, or a telefax phone number for notice of a hearing date, and a statement of reasons why the permit, license or application should not be denied, suspended or revoked. A response requesting an appeal hearing shall be deemed to have been received when delivered to Vandalia City Hall during regular business hours. If no response requesting an appeal hearing is received by the City within said ten days, the action shall become final. If a written response requesting an appeal hearing is received by the City Manager within said ten days, the City Manager shall notify the respondent within three business days of the receipt of such written response requesting an appeal hearing, of a hearing date before the Vandalia Board of Zoning Appeals. Notice of the hearing date shall be sent by overnight mail at the address provided, by e-mail at the e-mail address provided, or by telefax to the phone number provided.
(d) The Vandalia Board of Zoning Appeals shall conduct a hearing, and at which respondent shall have the opportunity to present evidence and witnesses on his or her behalf. The respondent may appear and be heard in person, or by his or her attorney, in opposition to the decision and do any of the following: (i) present his or her positions, arguments and contentions; (ii) offer and examine witnesses and present evidence in support; (iii) cross-examine witnesses purporting to refute respondent's position, arguments and contentions; (iv) offer evidence to refute evidence and testimony offered in opposition to his or her position, arguments and contentions; and (v) proffer any such evidence into the record, if the admission is denied by the Vandalia Board of Zoning Appeals.
(e) Testimony shall be given under oath. The Board of Zoning Appeals shall have the power to subpoena witnesses or evidence and shall make such power available to the respondent. The Board of Zoning Appeals shall have a complete record of the adjudication kept, including any evidence admitted or proffered. If, after the hearing, the Board of Zoning Appeals finds, by majority vote of the members present at the hearing, that grounds as specified in this chapter exist for denial, suspension or revocation, then such action shall become final and notice of such final action shall be sent to the applicant, licensee or permittee, by written decision. If the Board of Zoning Appeals finds, by majority vote of the members present at the hearing, that no grounds exist for denial, suspension or revocation of a permit/license, then the Board of Zoning Appeals shall overturn the denial, suspension or revocation of the permit/license or application. The Board of Zoning Appeals shall notify the respondent and City Manager in writing by delivery, overnight mail, e-mail, telefax or by certified mail of such action. The Board of Zoning Appeals shall send it decision within five business days after the hearing.
(f) The notice of final decision shall contain: (i) the case number or other identifier, the applicant, permittee or licensee's name and a brief description of the matter; (ii) a designation as a final decision; (iii) a clear pronouncement of the decision including conclusions of fact supporting the final order; (iv) the signatures of the members of the Board of Zoning Appeals; and (v) the date the decision was mailed, faxed or delivered.
(g) The hearing pursuant to this section shall be held within 21 days of receipt by the City of the response requesting an appeal hearing. The respondent may, however, for good cause, request a rescheduling or continuance of the hearing date, in which case the hearing date shall be extended for a reasonable period, and the 21-day time period for the hearing shall be extended by the number of days the hearing is postponed due to the respondent's request.
(h) A suspension, revocation of a permit or license, or the denial of a renewal of a permit or license shall not be final and in effect if a response requesting an appeal hearing is filed until the later of: (i) the Board of Zoning Appeals' decision on the appeal becoming final and expiration of any time period for initial appeal to court from a decision of the Board of Zoning Appeals; or (ii) if an appeal is taken to court, the entering of a judgment on the appeal by a court of competent jurisdiction. The existing permit/license shall be deemed to be a temporary permit or license and shall remain in effect during such period. Operations under such temporary permit/license shall be subject to all provisions of this chapter.
(i) The City shall be deemed to be adversely affected and aggrieved by a Board of Zoning Appeals decision which modifies or reverses a permit or license decision of the Chief of Police, and the City shall have the right to appeal such a decision to the court.
(j) Nothing contained in this section shall permit an applicant to operate an adult entertainment facility pending an appeal of a denial of an initial application.
(Ord. 08-13. Passed 6-16-08.)