The text
(a)
Notice of, and Time to, Appeal, and Effect of Timely Appeal.
(1)
A permittee of a commercial cannabis business may appeal any decision of the city administrator, by filing with the city clerk a written notice of appeal within fifteen calendar days from the date of service of the notice issued by the city administrator of his or her decision. Date of service shall mean the date when a notice or written decision was personally delivered to the permittee, or the date when the notice was caused to be delivered by certified, first class mail.
(2)
The notice of appeal shall be in writing and signed by the person making the appeal ("appellant"), or his or her legal representative, and shall contain the following:
(A)
Name, address, and telephone number of the appellant.
(B)
Specify that the person is appealing from a specified decision, action, or a particular part thereof, made by the city administrator.
(C)
Include a true and correct copy of the notice issued by the city administrator for which the appellant is appealing.
(D)
State with specificity the reasons and grounds for making the appeal, including, but not limited to, a statement of facts upon which the appeal is based in sufficient detail to enable the city council, or any appointed hearing officer, to understand the nature of the controversy, the basis of the appeal, and the relief requested.
(E)
All documents or other evidence pertinent to the appeal that the appellant requests the hearing officer or body to consider at the hearing.
(F)
An appeal fee, as established by resolution of the city council.
(3)
Failure of the city clerk to receive a timely appeal constitutes a waiver of the right to appeal the notice issued by the city administrator. In this event, city administrator's notice of revocation, nonrenewal, suspension and/or other action is final and binding.
(4)
In the event a written notice of appeal is timely filed, the nonrenewal, suspension, revocation, or other action shall not become effective until a final decision has been rendered and issued by the planning commission, or appointed hearing officer or body. If no appeal is timely filed in the event of a decision of nonrenewal, the commercial cannabis permit shall expire at the conclusion of the term of the permit. If no appeal is timely filed in the event of a decision of suspension or revocation, the suspension or revocation shall become effective upon the expiration of the period for filing a written notice of appeal.
(b)
Review by Planning Commission, or Appointed Hearing Officer or Body; Appeal Hearing and Proceedings.
(1)
All appellants shall, subject to filing a timely written notice of appeal, obtain review thereof before the planning commission, or appointed hearing officer or body. The administrative appeal shall be scheduled no later than sixty calendar days, and no sooner than twenty-one calendar days, after receipt of a timely filed notice of appeal. The appellant(s) listed on the written notice of appeal shall be notified in writing of the date, time, and location of the hearing at least ten calendar days before the date of the hearing ("notice of appeal hearing").
(2)
All requests by an appellant to continue a hearing must be submitted to the city clerk in writing no later than three business days before the date scheduled for the hearing. The planning commission, or appointed hearing officer or body, may continue a hearing for good cause or on its own motion; however, in no event may the hearing be continued for more than thirty calendar days, unless there is a stipulation by all parties to do so.
(3)
The planning commission shall preside over the hearing on appeal, or in the alternative, the planning commission may appoint a hearing officer or body to conduct the hearing.
(4)
At the date, time and location set forth in the notice of appeal hearing, the planning commission, or an appointed hearing officer or body, shall hear and consider the testimony of the appellant(s), city staff, and/or their witnesses, as well as any documentary evidence properly submitted by these persons.
(5)
The following rules shall apply at the appeal hearing:
(A)
Appeal hearings are informal, and formal rules of evidence and discovery do not apply. However, rules of privilege shall be applicable to the extent they are permitted by law, and irrelevant, collateral, undue, and repetitious testimony may be excluded.
(B)
The city bears the burden of proof to establish the grounds for denial, nonrenewal, suspension or revocation by a preponderance of evidence.
(C)
The issuance of the city administrator's notice constitutes prima facie evidence of grounds for the denial, nonrenewal, suspension or revocation, and city or county personnel who significantly took part in the investigation, which contributed to the city administrator issuing a notice of decision, may be required to participate in the appeal hearing.
(D)
Each party shall have the right to introduce evidence, to present and examine witnesses, and to cross-examine opposing witnesses who have testified under direct examination. The planning commission, or the appointed hearing officer or body, may also call witnesses, and examine any person who introduces evidence or testifies at any hearing.
(E)
The planning commission, or the appointed hearing officer or body, may accept and consider late evidence not submitted initially with the notice of appeal upon a showing by the appellant of good cause. The planning commission, or appointed hearing officer or body, shall determine in whether a particular fact or facts amount to a good cause on a case-by-case basis.
(F)
The appellant may bring a language interpreter to the hearing at his or her sole expense.
(G)
The city may, at its discretion, record the hearing by stenographer or court reporter, audio recording, or video recording. If the appellant requests from the city that said recording take place, the costs of same shall be deposited with the city at the time the notice of appeal and appeal fee are submitted to the city.
(6)
If the appellant, or his or her legal representative, fails to appear at the appeal hearing, the planning commission, or the appointed hearing officer or body, may cancel the appeal hearing and send a notice thereof to the appellant by certified, first class mail to the address(es) stated on the notice of appeal. A cancellation of a hearing due to non-appearance of the appellant shall constitute the appellant's waiver of the right to appeal and a failure to exhaust all administrative remedies. In such instances, the city administrator's notice of decision is final and binding.
(c)
Decision of the Planning Commission, or Appointed Hearing Officer or Body; Final Decision.
(1)
Following the conclusion of the appeal hearing, the planning commission, or appointed hearing officer or body, shall determine if any ground exists for the nonrenewal, suspension or revocation of a commercial cannabis permit or other action. If the planning commission, or appointed hearing officer or body, determines that no grounds for denial, nonrenewal, suspension, revocation, or other action exist, the city administrator's notice of decision shall be deemed cancelled. If the planning commission, or appointed hearing officer or body, determines that one or more of the reasons or grounds enumerated in notice of decision exists, a written final decision shall be issued within ten business days, which shall at minimum contain the following:
(A)
A finding and description of each reason or grounds for nonrenewal, suspension, revocation, or other action that exist.
(B)
Any other finding, determination or requirement that is relevant or related to the subject matter of the appeal.
(2)
The decision of the planning commission, or appointed hearing officer or body, is final and conclusive. The written final decision shall also contain the following statement: "The decision of the planning commission [or appointed hearing officer or body] is final and binding. Judicial review of this decision is subject to the time limits set forth in California Code of Civil Procedure Section 1094.6."
(3)
A copy of the final decision shall be served by certified, first class mail on the appellant. If the appellant is not the owner of the real property in which the commercial cannabis business is located, or proposed to be located, a copy of the final decision may also be served on the property owner by first class mail to the address shown on the last equalized assessment roll. Failure of a person to receive a properly addressed final decision shall not invalidate any action or proceeding by the city pursuant to this chapter.
(Ord. No. 700, § 2, 9-4-2018)