§ 10-32. Appeal procedures.

10-32-1. Filing of an appeal.

(a)

The permit applicant or permit holder under this article may, within ten calendar days after notice has been sent of an adverse determination on an application for a permit or an existing permit, submit a notice of appeal to the city clerk.

(b)

The notice of appeal shall be addressed to the city council and shall specify the subject matter of the appeal, the date of any original and amended application for a permit, the date of the adverse decision, the basis of the appeal, the action requested of the council and the name and address of the applicant.

(c)

The city clerk shall place the appeal on the agenda of the next regular council meeting occurring not less than five nor more than 45 days after receipt of the appeal.

10-32-2. Initial determination by council. When an appeal under this article is placed on the council agenda, the council may vote to take either of the following actions:

(a)

Decide that the council will preside over the hearing, set a hearing date and instruct the city clerk to give such notice of hearing as may be required by law; or

(b)

Appoint a hearing officer to preside over the hearing, set a hearing date and instruct the city clerk to give such notice of hearing as may be required by law. The hearing officer may or may not be a city employee and may be appointed for an extended period of time.

10-32-3. Conduct of hearing.

(a)

At the time and date set for hearing, the council or hearing officer, whichever is presiding, shall receive all relevant testimony and evidence from the appellant, from interested parties and from city staff. The appellant shall have the right to present evidence through testimony and documents, question other witnesses and make a statement before the council or hearing officer, whichever is presiding. All testimony shall be under oath.

(b)

Should the appellant desire to subpoena witnesses for the hearing, he/she shall be required to submit his request to the city clerk for subpoenas no later than ten calendar days prior to the date fixed for hearing.

(c)

Neither the council nor the hearing officer, whichever is presiding, shall be bound by formal rules of evidence in hearings conducted under this article, but all procedures shall be explained at the beginning of the hearing and shall be adhered to.

(d)

All proceedings of the hearing shall be tape recorded and a copy retained in city records. Should the appellant wish an official transcription, it shall be his/her duty to supply a court reporter at his expense.

10-32-4. Decision by hearing officer, if presiding. If the council has appointed a hearing officer to preside, the following rules apply:

(a)

Report of hearing officer. The hearing officer shall, within a reasonable time not to exceed 30 calendar days from the date such hearing under this article is terminated, submit a written report to the city council. Such report shall contain a brief summary of the evidence considered and state findings, conclusions and recommendations. All such reports shall be filed with the city clerk and shall be considered public records. A copy of such report shall be forwarded by certified mail to the appellant.

(b)

Placement on council agenda. The city clerk shall place the hearing officer's report on the agenda of the next regular council meeting occurring no less than five days and no more than 45 days after the report is filed. The clerk shall notify the appellant of the date of such meeting.

(c)

Decision by council. At the council meeting, the council may: adopt the hearing officer's decision in its entirety, modify the hearing officer's decision; reject the hearing officer's decision; or refer the matter to the same hearing officer for the taking of additional evidence on specific points.

(d)

The action of the council shall be deemed the final decision on the matter on appeal.

10-32-5. Decision by council, if presiding. If the council has decided to preside over the hearing, the following rules apply:

(a)

Timing of decision. The council shall, within a reasonable time not to exceed 30 calendar days from the date of such hearing under this article is terminated, render a written decision. Such decision shall contain a brief summary of the evidence considered and state findings and conclusions. All such written decisions shall be filed with the city clerk and shall be considered public records. A copy of such written decision shall be forwarded by certified mail to the appellant.

(b)

The written decision of council shall be deemed the final decision on the matter on appeal.

10-32-6. Appeal from final city action. Any person aggrieved by a final decision on the denial of an application for a permit or suspension or revocation of a permit issued under this article may appeal to superior court by writ of certiorari or petition for mandamus, in accordance with the standards and procedures provided by state law.

10-32-7. Mandatory waiting period after denial/revocation. When an adult entertainment establishment permit or employee permit has been denied, revoked or non-renewed, the applicant shall not be issued such a permit for one year from the date of the adverse action, unless the adverse action is reversed on appeal.

(Ord. No. 05-2008, § 1, 4-28-2008)