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HomeMy WebLinkAbout11B - ORDINANCE HEARING-APPEAL PROCEROH 8/3/09 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING CHAPTER 3 OF THE SANTA ANA MUNICIPAL CODE PERTAINING TO THE UNIFORM HEARING AND APPEAL PROCEDURE, AS WELL AS VARIOUS REFERENCES TO THIS APPEAL PROCESS THROUGHOUT THE CODE THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines and declares as follows: A. In order to provide continuous improvement to the City of Santa Ana's uniform hearing and appeal procedure, the following amendments are proposed to increase the efficiency and effectiveness of this process. B. All provisions of the Santa Ana Municipal Code which are repeated herein are repeated solely in order to comply with the provisions of section 418 of the Charter of the City of Santa Ana. Any such restatement of existing provisions of the Code is not intended, nor shall it be interpreted, as constituting a new action or decision of the City Council, but rather such provisions are repeated for tracking purposes only in conformance with the Charter. Section 2. Section 3-1 of the Santa Ana Municipal Code is hereby amended to delete any reference to the city council being involved in the appeal process, such that it reads as follows: Sec. 3-1. Scope of this chapter. Except as otherwise provided in this chapter or in other provisions of this Code, the procedures of this chapter shall apply to specified hearings, whether on matters of initial application or on appeal from the decision of city officials, boards or commissions. Section 3. Section 3-2 of the Santa Ana Municipal Code is hereby amended to delete any reference to the city council being involved in the appeal process, such that it reads as follows: Sec. 3-2. Request for hearing. Ordinance No. NS-XXX Page 1 of 9 11 B-1 (1) Initial application. Whenever an applicant is entitled by this Code to apply for initial determination of a matter, he shall submit his application in writing to the clerk of the council. The clerk shall determine that the application is in complete and correct form and may refer it to any appropriate city department for advice and assistance in making such determination. Thereafter, the City Manager or designee shall appoint a hearing officer to consider applications in specific types of matters and fix a time and place for a hearing to be held not less than five (5) nor more than sixty (60) days after receipt of the application. The clerk shall notify the applicant by mail at the address provided by the applicant of the date on which the matter will be heard. The hearing officer may but need not be a city employee. The clerk shall assume responsibility for such publication of notice of the hearing as may be required by law. If a hearing officer is appointed, the hearing shall be conducted in accordance with this Code. If any provision of law requires that public notice of the hearing be given, the clerk shall cause such notice to be given so that the hearing may be scheduled within the time required by this section. (2) Appeal from action of city official, board or commission. Whenever an applicant is entitled under this Code or any other provision of law to appeal from an adverse determination in a matter made by a city official, board or commission and desires to so appeal, he shall, within ten (10) days after he has been notified of that determination, submit a notice of appeal to the clerk of the council and a copy thereof to the person or the chairman of the body whose decision is being appealed. The notice of appeal shall be addressed to the clerk of the council and shall specify the subject matter of the appeal, the official or body whose decision is appealed, the date of any original and amended applications or requests, the date of the adverse decision (or receipt of notice thereof), the basis of the appeal, the action requested and the name and address of the appellant. Thereafter, the City Manager or designee shall appoint a hearing officer to consider appeals in specific types of matters and fix a time and place for a hearing to be held not less than five (5) nor more than sixty (60) days after receipt of the appeal. The clerk shall notify the appellant by mail at the address provided by the appellant of the date on which the matter will be heard. The hearing officer may but need not be a city employee. If a hearing officer is appointed, the hearing shall be conducted in accordance with this Code. Section 4. Section 3-6 of the Santa Ana Municipal Code is hereby amended to delete any reference to the city council being involved in the appeal process, such that it reads as follows: Sec. 3-6. Rules of evidence inapplicable. The hearing officer shall not be bound by the traditional rules of evidence in hearings conducted under this chapter. Ordinance No. NS-XXX Page 2 of 9 11 B-2 Section 5. Section 3-7 of the Santa Ana Municipal Code is hereby amended to make the hearing officer's report the final decision in the matter, such that it reads as follows: Sec. 3-7. Report of the hearing officer. The hearing officer shall within a reasonable time not to exceed thirty (30) days from the date the hearing is closed submit a written report to the clerk of the council. Such report shall contain a brief summary of the evidence considered and state the hearing officer's findings, conclusions and recommendations. The report shall also contain a final decision in the matter. All such reports filed with the clerk shall be matters of public record. A copy of each such report of final decision shall be mailed by certified mail to the applicant/appellant within five (5) days of receipt by the clerk and a further copy shall be sent to the city department, board or commission most directly concerned with the subject of the report. Section 6. Section 3-8 of the Santa Ana Municipal Code is hereby deleted in its entirety: Section 3-8 of the Code is hereby repealed. Section 7. Section 3-9 of the Santa Ana Municipal Code is hereby deleted in its entirety: Section 3-9 of the Code is hereby repealed. Section 8. Section 3-10 of the Santa Ana Municipal Code is hereby deleted in its entirety: Section 3-10 of the Code is hereby repealed. Section 9. Section 3-12 of the Santa Ana Municipal Code is hereby amended to delete any reference to the city council being involved in the appeal process, such that it reads as follows: Sec. 3-12. Applicability of this chapter to hearings before OTHER bodies. Hearings before boards and commissions other than the hearing officer appointed pursuant to section 3-2 are not required to be conducted in accordance with provisions of this chapter. However, any board or commission may, with respect to any individual application or appeal submitted to it, by simple motion elect to proceed by use of the hearing officer procedure established herein. When such election has been made, the board or commission shall act in the manner prescribed for the hearing officer and the secretary of the board or commission shall act in the manner prescribed for the clerk of the council. Section 10. Section 3-13 is added to Chapter 3 of the Santa Ana Municipal Code to read in full as follows: Sec. 3-13. References to the Chapter 3 appeal process. Ordinance No. NS-XXX Page 3 of 9 11 B-3 All references in this Code, or in any resolution, agreement, regulation, authorization or directive of the city council, the city manager or any board or commission of the city, or any agency or body controlled by the city, or in any document whatsoever, to an appeal to the City Council pursuant to the terms of Chapter 3 shall be deemed references to the current Chapter 3 appeal process as amended. Section 11. Pertinent subsections of section 10-60.7 of the Santa Ana Municipal Code are hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 10-60.7. Appeal of revocation to city council. (a) Any holder of a license aggrieved by the decision of the chief of police or designee to revoke said license may appeal to as provided in Chapter 3 of the Code. Section 12. Section 12-30 of the Santa Ana Municipal Code is hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 12-30. Hearing upon denial of permit, renewal, suspension or revocation. Any person aggrieved by the decision of the chief of police or designee to deny issuance or renewal of a permit or to suspend or revoke a permit may appeal as provided in Chapter 3 of this Code, in which case the action of the chief of police or designee shall be suspended until the city council has made its decision. Section 13. Pertinent subsections of section 12-156 of the Santa Ana Municipal Code are hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 12-156. Application for escort bureau or introductory service permit; contents; renewals; required fees. (g) The chief of police shall have thirty (30) calendar days after the date of the filing of the application in which to investigate the application for the permit or renewal thereof. (h) The chief of police or designee, within fifteen (15) calendar days after completing the investigation, shall grant the permit, or renewal thereof, only if he finds that all of the following requirements have been met: (1) The required fees have been paid; (2) The application conforms in all respects to the provisions of this article; (3) The applicant has not knowingly made a material misrepresentation of fact in the application; (4) The applicant has fully cooperated in the investigation of the application; Ordinance No. NS-XXX Page 4 of 9 11 B-4 (5) The applicant if an individual; or any of the directors, officers or stockholders holding more than five (5) percent of the stock of the corporation; or any of the partners, including limited partners, the holder of any lien of any nature or profit interest holder, manager or other person principally in charge of the operation of the existing or proposed escort bureau or introductory service, or a natural person employed or contracted with to be an escort or to provide escort services; has not been convicted or pleaded nolo contendere or guilty to a misdemeanor or felony crime of moral turpitude or a misdemeanor or felony crime involving sexual misconduct including, but not limited to, all offenses listed in Penal Code Section 290, Penal Code Sections 311.2 through 311.7, Penal Code Sections 314 through 318, and subsections (a), (b), (c), (d) or (h) of Section 647 of the Penal Code, or any offenses involving pimping, pandering, prostitution or lewd conduct; or has permitted, through an act of omission or commission, his or her employee or agent to engage in any type of moral turpitude or sexual misconduct offense, whether misdemeanor or felony (under such circumstances, the conduct of the employee or agent, if such resulted in a conviction or a plea of nolo contendere or guilty, will be considered imputed to the principal and shall be grounds for permit denial); (6) The applicant has not had an escort bureau, introductory service or escort permit or other similar license or permit denied or suspended or revoked for cause by the City of Santa Ana or any other city or county located in or out of this state within the five- year period immediately preceding the date of the filing of the application; (7) The escort bureau or introductory service, as proposed by the applicant, would comply with all applicable City of Santa Ana, county and state laws, including but not limited to health, zoning, fire and safety requirements and standards; and (8) The applicant, manager or other person principally in charge of the operation of the business is at least eighteen (18) years of age. (i) If the chief of police or designee does not find that all of the requirements set forth in subsections (h)(1) through (8) of this section 12-156 have been met, he shall deny application for the permit or renewal thereof. In the event the application for the permit or renewal thereof is denied by the chief of police or designee, written notice of such denial shall be given to the applicant, specifying the ground or grounds of such denial. Notice of denial of the application for the permit, or renewal thereof, shall be deemed to have been served if it in fact is personally served on the applicant or when deposited in the United States mail with postage prepaid and addressed to the applicant at the residence address set forth in the application for the permit or renewal thereof. Any applicant whose application for an escort bureau or introductory service permit, or renewal Ordinance No. NS-XXX Page 5 of 9 11 B-5 thereof, has been denied by the chief of police or designee, may appeal such denial as provided in Chapter 3 of this Code. Section 14. Pertinent subsections of section 12-162 of the Santa Ana Municipal Code are hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 12-162. Escort permit; renewal application. (e) The chief of police shall have thirty (30) calendar days in which to investigate the application and background of the applicant. (f) The city manager, within an additional thirty (30) days after investigating the application shall grant the permit, or renewal thereof, only if he finds that all of the requirements of subsections (h)(1) through (4) of section 12-156 of this article have been met, and, in addition, if he finds that the following additional requirements have been met: (1) The applicant has furnished an acceptable medical certificate in compliance with subsection (c) (1) of this section 12-162; (2) The applicant has not had an escort bureau, introductory service or escort permit or other similar license or permit denied or suspended or revoked for cause by the City of Santa Ana or any other city or county located in or out of this state within the five (5) years immediately preceding the date of the filing of the application; (3) The applicant is at least eighteen (18) years of age; (4) The applicant has not been convicted or pleaded nolo contendere or guilty to a misdemeanor or felony crime of moral turpitude or a misdemeanor or felony crime involving sexual misconduct including, but not limited to, all offenses listed in Penal Code Section 290, Penal Code Sections 311.2 through 311.7, Penal Code Sections 314 through 318, and subsections (a), (b), (c), (d), or (h) of Section 647 of the Penal Code, or any offenses involving pimping, pandering, prostitution or lewd conduct. (g) If the chief of police or designee does not find that all of the requirements set forth in subsection (f) of this section 12-162 have been met, he shall deny the application for the permit or renewal thereof. In the event the application for the permit, or renewal thereof, is denied by the chief of police or designee, written notice of such denial shall be given to the applicant specifying the ground or grounds of such denial. Notice of denial of the application for the permit, or renewal thereof shall be deemed to have been served if it in fact is personally served on the applicant or when deposited in the United States mail with postage prepaid and addressed to the applicant at his or her residence address as set forth in the application for the permit or renewal thereof. Any applicant whose application for an escort permit, or renewal thereof, has been denied by the chief of police or designee, may appeal such denial as provided in Chapter 3 or this Code. Ordinance No. NS-XXX Page 6 of 9 11 B-6 Section 15. Pertinent subsections of section 22-3 of the Santa Ana Municipal Code are hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 22-3. Massage establishment permit application. (e) The chief of police shall have thirty (30) calendar days in which to investigate the application and background of the applicant. The department of building safety and housing, the fire department and the Orange County Health Department shall inspect the premises proposed to be devoted to the massage establishment and shall make separate recommendations to the chief of police or designee concerning compliance with the foregoing provisions. The proprietor of such establishment shall pay a health service fee as established by the County of Orange. Such fees shall be paid directly to the county health officer to be retained by the county as reimbursement for such inspection. (f) The chief of police or designee, after receiving the application and aforementioned recommendations, shall grant the permit if he finds: (1) The required fee has been paid. (2) The application conforms in all respects to the provisions of this chapter. (3) The applicant has not knowingly made a material misrepresentation in the application. (4) The applicant has fully cooperated in the investigation of his application. (5) The applicant if an individual, or any of the stockholders of the corporation, any officers or directors, if the applicant is a corporation, or any of the partners, including limited partners, if the applicant is a partnership, has not within five (5) years prior to the application filing date been convicted of an offense involving conduct which requires registration under California Penal Code Section 290, or of conduct which is a violation of the provisions of California Penal Code Sections 266i, 314, 315, 316, 318, 647(a), 647(b), or 647(d), or any crime involving dishonesty, fraud, deceit, or moral turpitude, or any felony offense involving the sale of a controlled substance specified in Sections 11054 through 11058 of the California Health and Safety Code. (6) The applicant has not had a massage establishment permit or massage technician permit or other similar license or permit denied or revoked for cause by this city or any other city located in or out of this state within the five (5) years prior to the date of application. (7) The massage establishment as proposed by the applicant would comply with all applicable laws including, but not limited to, health, zoning, fire and safety requirements and standards. (8) The applicant is at least eighteen (18) years of age. Ordinance No. NS-XXX Page 7 of 9 11 B-7 (g) Any person, corporation or partnership denied a permit by the chief of police or designee pursuant to these provisions may appeal pursuant to Chapter 3 of the Santa Ana Municipal Code. Section 16. Pertinent subsections of section 35-134 of the Santa Ana Municipal Code are hereby amended to delegate the City Manager's decision to the relevant executive director, such that it reads as follows: Sec. 35-134. Appeal. (a) Any person aggrieved by any decision of the finance director or designee with respect to the amount of such tax, interest and penalties, if any, may appeal within fifteen (15) days pursuant to Chapter 3 of this Code. In the event no appeal is filed within the time prescribed, the decision of the finance director or designee shall become final and conclusive and shall render any subsequent appeal null and void and shall further act as a waiver against future action. Section 17. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. ADOPTED this day of 2009 Miguel A. Pulido Mayor APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By: Ryan O. Hodge Deputy City Attorney Ordinance No. NS-XXX Page 8 of 9 11 B-8 AYES: Councilmembers NOES: Councilmembers ABSTAIN: Councilmembers NOT PRESENT: Councilmembers CERTIFICATE OF ATTESTATION AND ORIGINALITY I, MARIA D. HUIZAR, Clerk of the Council, do hereby attest to and certify that the attached Ordinance No. NS-XXX to be the original ordinance adopted by the City Council of the City of Santa Ana on ,and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: Clerk of the Council City of Santa Ana Ordinance No. NS-XXX Page 9 of 9 11 B-9 11 B-10