Sec. 7-2.13. Appeal procedures.
With regard to any denial of an application for a license pursuant to Section 7-2.05 or any decision issued by the Department pursuant to Section 7-2.12, the following rules apply:
a.A decision of the Department to deny an application for a license, to suspend or revoke a license, or to impose a penalty for tobacco retailing without a license can be appealed to the City’s Hearing Officer provided for in Section 1-9.6, or, if so designated by the City Manager, to a County of Monterey Hearing Officer. Hereinafter the City’s Hearing Officer and the County of Monterey Hearing Officer shall be referred to as the “Hearing Officer.” The Hearing Officer shall be an individual who may hear the appeals, issue subpoenas, receive evidence, administer oaths, rule on questions of law and the admissibility of evidence, prepare a record of the proceedings, and issue orders with regard to an appeal.
b.The right to appeal is subject to the following requirements and procedures. A person served with a decision issued pursuant to Section 7-2.05(b) or 7-2.12(d) may seek an appeal by filing with the Department a written request for hearing within fourteen (14) calendar days of service of the decision. Failure to timely file a written request for hearing shall be deemed a waiver of the right to challenge the decision of the Department and a failure to exhaust administrative remedies.
c.The Hearing Officer shall schedule a hearing.
1.Written notice of the time, date and location of a hearing before the Hearing Officer shall be given by personal service or by first class mail, postage prepaid, including a copy of the affidavit or certificate of mailing, to the appellant.
2. Hearing Procedures.
i. Requirements for Taking Testimony.In any proceeding before a Hearing Officer, oral testimony offered as evidence shall be taken only on oath or affirmation, and the Hearing Officer, his/her clerk, or other designee shall have the power to administer oaths and affirmations and to certify to official acts. Oaths of witnesses may be given individually or en masse. Witnesses shall be asked to raise their right hands and to swear or affirm that the testimony they shall give will be the truth, the whole truth, and nothing but the truth.
ii. Continuances.The Hearing Officer may continue the hearing as determined appropriate by the Hearing Officer.
iii. Administrative Interpretations.In conducting the hearing, the Hearing Officer shall give deference to the previously established interpretation of an ordinance provision by the Department charged with its enforcement unless that interpretation is shown to be clearly erroneous or unauthorized.
iv. Hearing Officer Decisions.Within thirty (30) calendar days after the close of the hearing, the Hearing Officer shall issue a written decision, including a statement of the basis for the decision. The Hearing Officer’s written decision shall constitute the final administrative decision of the City.
v.In the event a civil action is initiated to obtain enforcement of the decision of the Hearing Officer, and judgment is entered to enforce the decision, the person against whom the order of enforcement has been entered shall be liable to pay the City’s and/or its designee’s total costs of enforcement, including reasonable attorney’s fees.
d.The appellant’s failure to appear at the hearing on appeal shall constitute an abandonment of the review request and a failure to exhaust administrative remedies. (Ord. 3674 § 6, 2023; Ord. 3654 § 6, 2022; Ord. 3508 § 2, 2014. Formerly 19-117, 19-118)