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5866ORDINANCE NO. 5866 AN ORDINANCE OF THE CITY OF ANAHEIM AMENDING VARIOUS SECTIONS OF THE ANAHEIM MUNICIPAL CODE RELATING TO APPOINTMENT OF A HEARING OFFICER. WHEREAS, in Haas v. County of San Bernardino 27 Cal 4th 1017; 119 Cal. Rptr 2d 341 (2002), the California Supreme Court, found that the County of San Bernardino's unilateral selection and retention of a hearing officer, when combined with the County's payment of the hearing officer, constituted an inherent deprivation of a licensee's due process right to an impartial hearing; and WHEREAS, the Supreme Court in Haas stated that agencies that appoint temporary administrative hearing officers must do so in a way that does not create the risk that favorable decisions will be rewarded with future remunerative work; and WHEREAS, no bias has been demonstrated as a result of utilization of existing provisions of the Anaheim Municipal Code relating to appointment of a hearing officer, and the hearings conducted have resulted in impartial consideration and recommendations by the persons so appointed; and WHEREAS, the City Council wishes to conform existing language in the Anaheim Municipal Code relating to selection of a hearing officer with the requirements set forth in the Haas decision by creating the office of City Hearing Officer to hear prescribed matters arising during a designated period, thereby ensuring that the appointment does not create the possibility that favorable decisions will be rewarded. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ANAHEIM HEREBY ORDAINS AS FOLLOWS: SECTION 1. That Section 1. 12.110 of Chapter 1.12 of Title 1 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "1.12.110 APPOINTMENT OF HEARING OFFICER The purpose of this Section is to identify the types of hearing officers used by the City when referring hearings on matters that would otherwise be under the jurisdiction of the City Council or a City officer or employee as designated in any provision of the Anaheim Municipal Code, and to establish the procedures for such hearings, as appropriate. .010 Definitions. "City Hearing Officer." The term "City Hearing Officer" shall mean the person appointed by Resolution of the City Council to conduct hearings, receive evidence, and, in specified circumstances, make final decisions on behalf of the City. "Employee Hearing Officer." The term "Employee Hearing Officer" shall mean a regularly employed City employee appointed by either the City Council, its designee, an authorized City employee, or by operation of law, to conduct a hearing, receive evidence, and, in specified circumstances, make final decisions on behalf of the City. Unless otherwise expressly provided therein, provisions in the Anaheim Municipal Code which authorize a regularly employed City employee to appoint a hearing officer shall require appointment of an Employee Hearing Officer. "Hearing." The term "hearing" as used in this Section shall mean any proceeding required by law in which evidence is required to be taken and discretion in the determination of facts is vested in the City Council, or a designated City officer or employee, which discretion, in specified instances, is delegated to a Hearing Officer. "Hearing Officer." The term "Hearing Officer," for purposes of this Section, shall collectively include the City Hearing Officer, Employee Hearing Officers and Stipulated Hearing Officers. "Parties." The term "Parties" as used in this Section shall mean (i) the City of Anaheim and (ii) the permit or project applicant, and (iii) the owner of the property which is directly the subject of the hearing, if any. "Stipulated Hearing Officer." The term "Stipulated Hearing Officer shall mean the person appointed, subject to mutual agreement of the Parties, to conduct a hearing, receive evidence, and in specified circumstances, make final decisions on behalf of the City. 020 Procedure Applicable Where Hearing Officer Makes Advisory Recommendation to City Council. In the absence of any procedure expressly made applicable by any other provision of this code, the procedures set forth in this subsection .020 shall apply to hearings in which the Hearing Officer is required to conduct a hearing and make advisory recommendations to the City Council. .0201 The Hearing Officer shall hold such hearing within the time and manner, and notice of such hearing shall be given, as would otherwise apply had the hearing been held by the City Council. 2 .0202 The Hearing Officer shall receive evidence, both oral and written, at such hearing and shall prepare, or cause to be prepared, an administrative record of such hearing which record as certified by the Hearing Officer, together with the written recommendation of the Hearing Officer of the action to be taken, shall be submitted to the City Council within twenty days following the conclusion of such hearing. .0203 Within thirty days following the receipt of the administrative record and written recommendation of the Hearing Officer, the City Council shall render a decision upon the matter in the manner required by law. The decision of the City Council shall be based upon the administrative record prepared by the Hearing Officer and the City Council shall not take or consider additional evidence. Notwithstanding the foregoing, oral argument shall be permitted by the City Council prior to its decision. .0204 To the extent the time limits and procedures set forth in this subsection .020 are inconsistent with any other provision of this code, specific time limits otherwise stated in the Code shall govern. .0205 In the event the City Council is legally unable to act upon a matter following referral by the Hearing Officer, due to a tie vote, or the proposed motion or resolution receives more affirmative than negative votes, but fails to receive the minimum number of affirmative votes legally required for adoption, and such inability to act is the result of an abstention by one or more members of the City Council (whether legally required or otherwise), the recommendation of the Hearing Officer shall be deemed final and conclusive without further action of the City Council. The City Clerk shall certify the decision of the Hearing Officer as the final decision of the City and shall mail a copy of the certification to the Parties and such other persons or entities requesting notice of such decision. .0206 Any request for a rehearing of the decision of the Hearing Officer, so certified as the final decision of the City by the City Clerk, shall be filed with the City Clerk within the time limits specified in subsection .040 of Section 1.12.100 of this Code. .0207 The City Council shall either grant or deny any request for rehearing. In the event the City Council grants any request for rehearing for any matter where the hearing to which the request relates was held by the Hearing Officer, such rehearing shall be held by the Hearing Officer who initially heard the matter and made the recommendation to the Council, unless otherwise mutually agreed by the Parties. 3 .030 Procedure Applicable Where Hearing Officer Makes Final Decision. In matters wherein the Code specifies that the decision of the hearing officer shall be deemed final and conclusive without further action of the City Council or any subordinate body, officer or employee of the City being required, the Hearing Officer shall conduct the hearing in accordance with the procedures applicable to such matter as otherwise specifically set forth in the provisions of this Code applicable to such matter. ".040 The City Council may, due to illness or any other reason, including recusal, which causes the Hearing Officer to be unable to complete a hearing and make a decision, appoint a substitute Hearing Officer to complete the hearing and make the final decision. .0401 No person appointed to be a substitute Hearing Officer, other than an Employee Hearing Officer, shall be eligible for a future appointment for a period of two years after the completion of such person's duties as Hearing Officer, except that the period of ineligibility may be waived by mutual agreement of the Parties. .0402 The substitute Hearing Officer shall review the record of the portion of the hearing already conducted and, after considering the arguments of any person, determine whether to proceed with the hearing or to commence the proceedings anew." SECTION 2. That subsection .030 of Section 2.12.060 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".030 If Application for Hearing is timely made, a Hearing Officer shall be appointed by the License Collector in conformance with the provisions of subsection .040 within fifteen days of the receipt thereof to conduct a hearing within sixty days of the date of appointment of the Hearing Officer on and limited to the issues set forth in the Application for Hearing. The Hearing Officer shall give not less than fifteen days' written notice to the operator to show cause at a time and place fixed in said notice why the amount assessed should not be fixed for such Tax. At the hearing, the operator may appear and offer evidence why the Tax assessed should not be so fixed. A rebuttable presumption shall exist at said hearing that the amount of Tax assessed is correct and the burden of proof shall be upon the operator." 4 SECTION 3. That subsection .050 of Section 2.12.060 of Chapter 2.12 of Title 2 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".050 For matters involving an amount in controversy of $50,000 or less, the License Collector shall appoint an Employee Hearing Officer, or subject to agreement of the parties, the City Hearing Officer, as said terms are defined in subsection 1.12.110.020 of this Code. For matters involving an amount in controversy in excess of $50,000, the matter shall be referred to the City Hearing Officer." SECTION 4. That Section 3.04.260 of Chapter 3.04 of Title 3 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "3.04.260 APPEAL. Any person aggrieved by a decision of the Collector, or any other officer of the City, made pursuant to the provisions of this Title concerning such person's business license tax, may appeal therefrom to the City Manager within fifteen days after notice of said adverse decision by filing with the Collector a written notice of appeal, briefly stating the grounds relied upon for such appeal. If such appeal is made within the time prescribed, the Collector shall cause the matter to be set for hearing before the City Manager or his designee within thirty days from the date of receipt of such notice of appeal, giving the appellant not less than ten days' written notice of the time and place of such hearing. The City Manager or his designee may appoint an Employee Hearing Officer, as said term is defined in subsection 1.12.110.020 of this Code, to conduct the hearing on the matter and render a written recommendation to the City Manager or his designee. The City Manager or his designee shall render a decision on the appeal no later than twenty days following completion of the hearing thereon or, in the event such hearing is held by an Employee Hearing Officer, within thirty days following completion of the hearing thereon. The findings and determinations as approved by the City Manager, or his designee shall be final and conclusive and shall not conflict with any substantive provisions of this Title. Within five days after the City Manager's findings and determinations are made, the Collector shall give written notice thereof to the appellant. In the event no timely appeal is taken from the determinations of the Collector, any decision of the Collector shall become final and conclusive upon the expiration of the time set herein for filing an appeal." SECTION 5. That subsection .030 of Section 4.29.160 of Chapter 4.29 of Title 4 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".030 Appeal. .0301 The right to appeal to the City Council shall terminate upon the expiration of fifteen (15) days from the date of mailing of the notice. Any decision of the Chief of Police, pursuant to this chapter, shall be deemed final and conclusive unless a written notice of appeal is filed with the City Clerk and the Chief of Police prior to the expiration of said fifteen (15) day appeal period. .0302 In the event an appeal is timely filed, any suspension or revocation shall not be effective until a final decision has been rendered by the City Council. If no appeal is filed, the suspension or revocation shall become effective upon expiration of the period for filing appeals. .0303 The City Council of the City of Anaheim may preside over the hearing on appeal or, in the alternative, the City Council may, pursuant to Section 1.12.110, appoint an Employee Hearing Officer, as said term is defined in subsection 1.12.110.020 of this Code, to conduct the hearing, receive relevant evidence and to submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall render its decision within sixty (60) days from the date the appeal is filed with the City, or, in the event that a hearing officer has been appointed, the hearing officer shall submit his/her findings and recommendations to the City Council within sixty (60) days from the date the appeal is filed with the City and the City Council shall render its decision within fifteen (15) days from the date on which the City Council receives the findings and recommendations of the hearing officer. The decision of the City Council shall be final. The applicant shall be entitled to notice of the basis for the proposed action, a copy of the documents upon which the decision was based and the opportunity to present contrary evidence at the hearing. If the denial is based upon failing the test, the applicant shall be entitled to review their test at the Police Department but shall not be entitled to a copy of the test. .0304 Notice of the date, time and place of the hearing shall be mailed at least ten (10) days prior to the date of the hearing, by certified mail, return receipt requested, with proof of service attached, addressed to the address listed on the massage application, or massage technician application, as the case may be. C1 .0305 No permit granted herein shall confer any vested right to any person or business for more than the permit period. All massage operators, Responsible Employees and technicians subject to this chapter shall comply with the provisions of this chapter as they may be amended hereafter." SECTION 6. That subsection .050 of Section 4.31.080 of Chapter 4.31 of Title 4 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".050 Within thirty days from the date of denial, any person denied a permit pursuant to these provisions by the License Collector may appeal such decision to the City Manager by filing a notice of appeal in writing with the License Collector stating reasons why the permit should be granted. Upon the filing of a timely appeal, the License Collector shall provide written notice to the applicant of the date such appeal shall be considered by the City Manager, which date shall not be later than thirty days following the date of such appeal, and which written notice shall be personally served or deposited in the course of transmission with the United States mail not less than ten days prior to the date of such scheduled consideration by the City Manager. In the alternative, within twenty-one days following the date of such appeal, the City Manager may refer such appeal to an Employee Hearing Officer, as said term is defined in subsection 1.12.110.020 of this Code, who shall, within thirty days thereafter conduct and complete the appeal proceedings and render his or her report and recommendation to the City Manager for final determination by the City Manager. Upon receipt of said report and recommendation, the City Manager shall schedule consideration thereof by the City Manager and provide written notice to the applicant of the date such appeal shall be considered by the City Manager which date shall be not more than thirty days following the date of receipt of such report and recommendation. Upon the date said matter is scheduled for consideration by the City Manager, or upon any later date to which said matter is continued not to exceed thirty days following the date such matter is scheduled for consideration, the City Manager shall grant or deny the permit decision. The decision of the City Manager with regard to any timely filed appeal shall be final." SECTION 7. That subsection .030 of Section 4.31.210 of Chapter 4.31 of Title 4 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".030 Any hearing required to be conducted by the City Council pursuant to this section may, at the sole discretion of the City Council, be referred to an Employee Hearing Officer, as said term is defined in subsection 1.12.110.020 of this Code, in accordance with the procedure set forth in 7 subsection 4.31.080.050 of this Code, except that the report and recommendation shall be provided to the City Council for final determination. If the initial hearing was conducted by an Employee Hearing Officer, the employee appointed by the City Council to conduct the hearing on the appeal shall not be the same as, or a subordinate of, the initial hearing officer." SECTION 8. That subsection .020 of Section 4.72.060 of Chapter 4.72 of Title 4 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".020 The City Council may preside over the hearing, or in the alternative, the City Council may, pursuant to Section 1.12.110, appoint an Employee Hearing Officer or a Stipulated Hearing Officer, as said terms are defined in subsection 1.12.110.010 of this Code, to conduct the hearing, receive relevant evidence and submit to the City Council findings and recommendations to be considered by the City Council. The City Council shall render its decision within thirty days from the date of the revocation hearing or, in the event that a hearing officer has been appointed, the hearing officer shall submit his/her findings and recommendations to the City Council within thirty days from the date of the revocation hearing, and the City Council shall render its decision within fifteen days from the date on which the City Council receives the decision of the hearing officer. The decision of the City Council shall be final." SECTION 9. That new subsection (q) of Section 4.95.0 10 of Chapter 4.95 of Title 4 of the Anaheim Municipal code be, and the same is hereby, added to read as follows: "(q) "Hearing Review Officer" or "Hearing Officer" shall mean the City Manager of his designee, provided the designee is not a subordinate of the Police Chief." SECTION 10. That Section 6.44.070 of Chapter 6.44 of Title 6 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "6.44.070 HEARING. At the time fixed in the notice, a hearing officer appointed by the Code Enforcement Manager shall hear the testimony of all competent persons desiring to testify respecting the condition constituting the nuisance, including the estimated cost of its abatement and any other matter which may be pertinent. The hearing officer shall be an Employee Hearing Officer or a Stipulated Hearing Officer, as said terms are defined in 14 subsection 1.12.110.010 of this Code. At the conclusion of the hearing, the hearing officer shall determine whether or not a nuisance exists; and if the hearing officer so concludes, he may declare the conditions existing to be a nuisance and direct the person owning the property upon which the nuisance exists to abate it within thirty days after the date of posting on the premises a notice of the order." SECTION 11. That Section 6.64.010 of Chapter 6.64 of Title 6 of the Anaheim Municipal Code be, and the same is hereby, amended (to amend the definition of "Health Officer") to read as follows: "`Health Officer' means the County Health Officer or his or her deputy or, if the County Health Officer and his or her deputy are unable or unwilling to serve as Health Officer for the City, such other agency or employees designated by the City Council." SECTION 12. That paragraph (h) of subsection .020 of Section 8.08.090 of Chapter 8.08 of Title 8 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "(h) Except as otherwise provided in subsection (c) of this section, the Code Enforcement Manager or his designee shall conduct a hearing within fifteen days following receipt of a written request from the owner or custodian requesting a hearing under this section, and notice of the time, date and place thereof shall be mailed to the person requesting the hearing at the address given in the hearing request, at least ten days prior to the hearing." SECTION 13 That subsection .020 of Section 18.02.060 of Chapter 18.02 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, deleted. SECTION 14. That new subsection .030 be, and the same is hereby, added to Section 18.02.060 of Chapter 18.02 of Title 18 of the Anaheim Municipal Code to read as follows: "030 Prompt Judicial Review. Notwithstanding anything in this Section to the contrary, an action or proceeding to review the issuance, revocation, suspension or denial of a permit or other entitlement for expressive conduct protected by the First Amendment to the United States Constitution shall be conducted in accordance with the provisions of Section 1094.8 of the Code of Civil Procedure." 9 SECTION 15. That subsection .060 of Section 18.03.091 of Chapter 18.03 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: "060. Any action of the Planning Commission pursuant to this section shall be subject to appeal to, or review by, the City Council within the same time and manner, and subject to the same procedures, as set forth in Sections 18.03.080 through 18.03.084, inclusive, of this Code, except that appeals from a decision to terminate a use or variance, shall be heard by the City Hearing Officer pursuant to the procedures in Section 1.12.010.020 (Procedure Applicable Where Hearing Officer Makes Advisory Recommendations to City Council). Any such appeal to, or review by, the City Council, and any determination thereon, shall be made in accordance with the provisions of this section." SECTION 16. That subsection .010 of Section 18.06.090 of Chapter 18.06 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended to read as follows: ".010 Any application for a waiver or deviation from the provisions of this chapter relating to off-street parking requirements for any sex -oriented business, as defined in Chapter 18.89.020 of this Code, shall be determined by the City Hearing Officer, as defined in subsection 1.12.110.010 of this Code, following a duly noticed public hearing thereon held in accordance with the same procedure as set forth in subsection .040 of Section 18.89.030 of this Code which public hearing shall, upon the request of the applicant, be combined with the public hearing required for issuance of the sex -oriented business permit as required pursuant to said subsection .040 of Section 18.89.030." SECTION 17. That subsection 18.89.030.040 of Section 18.89.030 of Chapter 18.89 of Title 18 of the Anaheim Municipal Code be, and the same is hereby, amended (to revise paragraphs .0401 and .0406) to read as follows: ".040 Processing of Application .0401 Within five (5) business days following the receipt of an application pursuant to this section, the License Collector shall determine whether said application contains all information required by the provisions of this chapter. If it is determined that said application is not complete, the owner (as defined in Section 18.89.020) shall be notified in writing within said five (5) day period that such application is not complete and the reasons therefor, including any additional information necessary to render the "to] application complete. The owner shall be permitted to submit an amended application or provide all necessary information to render the application complete. Within five (5) business days following the receipt of any such amended application or supplemental information, the License Collector shall again determine whether said application is complete in accordance with the procedures set forth in this subsection. Upon determination that the application is complete, the License Collector shall immediately transmit such completed application to the City Hearing Officer appointed pursuant to the provisions of 1. 12.110 (hereinafter the "Hearing Officer") for processing in accordance with paragraphs .0402 through .0405, inclusive, of this subsection .040. .0402 The Hearing Officer shall conduct a public hearing upon said completed application. Notice of said public hearing shall be given in the manner provided for conditional use permits as set forth in Section 18.03.060 of this Code except that said public hearing shall be held within fifty (50) calendar days following the date said application was deemed complete pursuant to paragraph .0401 above, unless the Owner, or the Owner's authorized representative, expressly agrees to an extension of such period of time. Notice of the time and place of the hearing shall be given to the applicant at least fifteen (15) calendar days in advance of the date set for the public hearing. Said public hearing shall be completed by the Hearing Officer on the same date on which it is scheduled and held unless continuance of said public hearing is expressly approved by the Owner, or the Owner's authorized representative, at or prior to the scheduled date of said public hearing. .0403 Within ten (10) calendar days following the completion of the public hearing specified in paragraph .0402 above, the Hearing Officer shall approve such application if it is determined that the requirements of this chapter have been met and if the application and evidence submitted show that the proposed sex -oriented business complies with the requirements of subsection 18.89.030.050 as hereinafter set forth; otherwise the application shall be denied. The Hearing Officer shall impose conditions upon such approval to assure compliance with the requirements of this chapter. In the event of denial of the application, the Hearing Officer shall specify in writing the grounds upon which the application is denied. Notice of the decision of the Hearing Officer shall be given in writing to the owner, and to any other person or entity expressly requesting notice thereof, in the same manner as provided for the giving of notices in paragraph .0401 above. The decision of the Hearing Officer shall also be immediately transmitted to the License Collector for issuance or denial of the permit. The decision of the Hearing Officer shall be deemed final notwithstanding any other provision of this Code to the contrary. .0404 Immediately upon receipt of a decision by the Hearing Officer approving or conditionally approving such application, the License Collector shall issue the sex -oriented business permit to the owner. Such permit shall be deemed subject to any conditions of approval imposed by the Hearing Officer pursuant to paragraph .0403. 11 .0405 The public hearing by the Hearing Officer specified in this subsection .040 shall be required for the initial permit approval but shall not be required for any permit renewal pursuant to Section 18.89.060 of this chapter. .0406 Notwithstanding anything in this Chapter 18.89 to the contrary, an action or proceeding to review the issuance, revocation, suspension or denial of a permit or other entitlement for expressive conduct protected by the First Amendment to the United States Constitution shall be conducted in accordance with the provisions of Section 1094.8 of the Code of Civil Procedure, as provided by subsection 18.02.060.030 of this Code." SECTION 18. SEVERABILITY The City Council of the City of Anaheim hereby declares that should any section, paragraph, sentence or word of this ordinance of the Code, hereby adopted, be declared for any reason to be invalid, it is the intent of the Council that it would have passed all other portions of this ordinance independent of the elimination herefrom of any such portion as may be declared invalid. SECTION 19. SAVINGS CLAUSE Neither the adoption of this ordinance nor the repeal of any other ordinance of this City shall in any manner affect the prosecution for violations of ordinances, which violations were committed prior to the effective date hereof, nor be construed as a waiver of any license or penalty or the penal provisions applicable to any violation thereof. The provisions of this ordinance, insofar as they are substantially the same as ordinance provisions previously adopted by the City relating to the same subject matter, shall be construed as restatements and continuations, and not as new enactments. SECTION 20. PENALTY It shall be unlawful for any person, firm or corporation to violate any provision or to fail to comply with any of the requirements of this ordinance. Any person, firm or corporation violating any provision of this ordinance or failing to comply with any of its requirements shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine not exceeding One Thousand Dollars ($1,000.00) or by imprisonment not exceeding six (6) months, or by both such fine and imprisonment. Each such person, firm or corporation shall be deemed guilty of a separate offense for each day during any portion of which any violation of any of the provisions of this ordinance is committed, continued or permitted by such person, firm or corporation, and shall be punishable therefor as provided for in this ordinance. 12 THE FOREGOING ORDINANCE is approved and adopted by the City Council of the City of Anaheim this 17 day of June 2003. MAYO F THE CITYA A14AHEIM ATTEST: ITY CLEKK OF THE CITY OF ANAHEIM 481 19.4\smann\June 4, 2003 13 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, SHERYLL SCHROEDER, City Clerk of the City of Anaheim, do hereby certify that the foregoing Ordinance No. 5866 was introduced at a regular meeting of the City Council of the City of Anaheim, held on the 10th day of June, 2003, and that the same was duly passed and adopted at a regular meeting of said City Council held on the 17th day of June, 2003, by the following vote of the members thereof: AYES: MAYOR/COUNCIL MEMBERS: Pringle, Tait, Chavez, McCracken, Hernandez NOES: MAYOR/COUNCIL MEMBERS: None TEMP ABSENT: MAYOR/COUNCIL MEMBERS: None ABSTAINED: MAYOR/COUNCIL MEMBERS: None C Y CLER OF THE CITY OF ANAHEIM (SEAL)