HomeMy WebLinkAboutNS-2792 - Amending Chapter 3 of Santa Ana Municipal Code Pertaining to Uniform Hearing and Appeal Procedure...ROH 8/3/09
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ORDINANCE NO. NS-2792
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-2792
Page 1 of 9
(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 ..r
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. „r„~
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-2792
Page 2 of 9
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-2792
Page 3 of 9
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-2792
Page 4 of 9
(5) The applicant if an individual; or any of the directors, officers or
,,,r,, 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-2792
Page 5 of 9
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-2792
Page 6 of 9
Section 15. Pertinent subsections of section 22-3 of the Santa Ana Municipal Code are
,r,,, 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-2792
Page 7 of 9
(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 17th day of August, 200A
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
~'~ ! ~ 1
By: ^~'
Ryan o ~e
Depu ~ City orney
Ordinance No. NS-2792
Page 8 of 9
AYES: Councilmembers: Alvarez Bustamante Martinez Pulido (4)
NOES: Councilmembers: None (0)
ABSTAIN: Councilmembers: None (0)
ABSENT: Councilmembers: Benavides. Sarmiento, Tinaiero (3
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-2792 to be the original ordinance adopted by the City
Council of the City of Santa Ana on August 17, 2009 and that said ordinance was
published in accordance with the Charter of the City of Santa Ana.
Date: ~~/~ ~3aa~~ y'~'~ Ol.~i~V~ ~. ~tl' ~ ,~
Clerk of the Co it
City of Santa Ana
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Ordinance No. NS-2792
Page 9 of 9