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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. Massage Establishment Appeal Procedures 1 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. Massage Establishment Appeal Procedures 2 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 Massage Establishment Appeal Procedures 3