HomeMy WebLinkAboutReso - CC - 050-2019RESOLUTION NO. 50-2019
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BURLINGAME
ADOPTING PROCEDURES GOVERNING APPEAL HEARINGS HELD PURSUANT
TO MUNICIPAL CODE SECTION 6.39.070
WHEREAS, Municipal Code section 6.39.070 provides that applicants who have been
denied registration or renewal for massage establishment certification under the Municipal Code
may appeal to the City Council for review of that denial; and
WHEREAS, appellants are entitled to notice and the opportunity to be heard in such
appeals; and
WHEREAS, such proceedings before the Council are administrative and informal in
nature; and
WHEREAS, guidance for future appeals is necessary in order to establish the manner in
which such appeals shall be heard; and
WHEREAS, the guidance contained in this resolution shall provide notice to appellants
and the public about the procedure for such appeals; and
WHEREAS, Council may amend such procedures within its discretion as deemed
necessary and appropriate.
NOW, THEREFORE, BE IT RESOLVED, that:
1. Appeals under Municipal Code section 6.39.070 may be heard at a regular or special
meeting of the City Council.
2. Such appeals shall be publicly noticed as required under the Brown Act and other
applicable law.
3. Appellants shall be afforded 30 days' notice prior to the scheduled hearing, to be sent
via first class mail to the last known address for appellant or appellant's counsel as
applicable and postmarked at least 33 days prior to the scheduled meeting, unless an
earlier date is scheduled within the City's discretion at the appellant's request.
Because providing this notice may bring the appeal hearing date outside of the time
frame anticipated in the ordinance, appellants are permitted to continue operation
pending the appeal (unless independently enjoined through a court proceeding), and
any delay occasioned in scheduling an appeal is deemed to be non -injurious to
appellants.
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4. If the City Attorney or Deputy/Assistant City Attorney advised, oversaw, or was
involved with the code enforcement or Police Department determination to refuse
registration of a massage establishment or practitioner, the City Attorney or
Deputy/Assistant City Attorney shall not advise Council in connection with the
corresponding appeal hearing under section 6.39.070. Instead, outside counsel shall
be retained to provide independent advice, or the Council may opt to hear the appeal
without such advice of counsel.
5. Appellant and City staff may each submit any written materials in support of their
respective positions to Council. In order to provide adequate time for review, such
material must be submitted to the City Clerk by 5 pm on the day that is 10 calendar
days prior to the scheduled hearing. If that day falls on a weekend or City holiday, the
written materials are due by 5 pm on the weekday prior to the 10-day period. The
written materials submitted may include position statements, legal arguments, sworn
or unsworn witness accounts, or any other information deemed relevant by the
submitting party. Because these submissions will become part of the public record,
they should not contain private information about individuals such as medical
information. Parties to the appeal may submit redacted materials.
6. Appellant and City staff may but are not required to provide an up to 5-page rebuttal
statement regarding any information submitted by the other party to the appeal. Such
rebuttal should be submitted to the Clerk before 5 pm at least 5 calendar days prior to
the Council hearing. If the 5th day falls on a weekend or City holiday, the rebuttal
statement should be submitted by the weekday following the 5th day.
7. The hearing before the Council shall be informal, and is expected to take up to
approximately one hour. The Mayor shall preside; in the Mayor's absence, the Vice
Mayor shall preside. Prior to the hearing, Council members shall disclose on the
record any ex parte communications they have had with any persons interested in the
appeal, including City staff involved in the decision to deny registration. The rules of
evidence do not apply. The appellant may but is not required to make a statement to
Council and may have one or more additional people speak on their behalf, including
appellant's counsel. Formal testimony will not be taken, and no witnesses shall be
administered an oath (unless appellant wishes to do so themselves), but appellant
may include any information or speakers s/he/they deem relevant to Council.
Appellant shall be afforded 20 minutes for this initial presentation of the issues and
information, which may be extended at the discretion of the presiding Council member.
City staff shall then be afforded 20 minutes for their presentation. Council members
may ask questions of appellant and staff during their presentations.
8. Following the initial presentations by appellant and City staff, members of the public
shall be allowed to comment. Such comment shall be limited to three minutes per
speaker, except that the presiding Council member may extend or shorten the time
allotted to members of the public in light of the number of speakers.
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9. Appellant shall be provided an opportunity for a summation and/or rebuttal, limited to
5 minutes unless otherwise provided at the discretion of the presiding Council member.
Council members may ask any final clarifying questions of appellant or staff, after
which the hearing shall be closed and Council will deliberate.
10. Following its deliberation, Council may take one of the following actions: a. affirm the
denial of registration/renewal; b. reverse denial of registration/renewal and order staff
to issue a registration certificate; or c. suspend staff's determination and order
additional investigation or consideration of identified issues or information before staff
reaches a final determination. Council may take these actions by oral motion, and
may direct staff to prepare a resolution reflecting their direction for adoption at a
subsequent meeting. Council should endeavor to reach a final determination of the
appeal on the scheduled hearing date, unless a continuance is necessary because of
the duration of presentations/public comment or because further investigation or
elaboration is necessary on one or more specifically identified issues. If Council
requires more time for deliberation, Council may continue their discussion after the
close of the public hearing, but Council must not engage in ex parte discussions with
anyone — including City staff — regarding the substance of the appeal prior to a decision
being made at a later public meeting. If a continuance is necessary, the continued
hearing should be scheduled as soon as practicable, given the purpose of the
continuance and Council's availability. City staff shall exercise a good faith effort to
work with appellants to find an acceptable date for a continued hearing, but appellants
shall not have the right to unilaterally dictate the date nor avoid final determination by
making themselves unavailable for the continued hearing.
11. The decision of Council shall be final. The procedures contained in this resolution are
designed to provide guidance to Council; any of these procedures may be waived by
Council as deemed necessary, and failure to strictly adhere to the procedures set forth
here shall not be deemed to invalidate Council's action on any appeal.
I, MEAGHAN HASSEL-SHEARER, City Clerk of the City of Burlingame, certify that the
foregoing Resolution was introduced at a regular meeting of the City Council held on the 6th day
of May, 2019, and was adopted thereafter by the following vote:
AYES: COUNCILMEMBERS: BEACH, BROWNRIGG, COLSON, KEIGHRAN, ORTIZ
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: NONE
City'OerV
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