5.124.260 Appeal of a decision on a massage therapy practitioner or massage therapy establishment permit.
A. Appeal to Hearing Examiner.
1. Any applicant or permittee aggrieved by the decision of the city manager, in denying, suspending, modifying, or revoking a massage establishment permit or imposing conditions on the permit, may appeal the decision to a hearing examiner by submitting a written appeal to the city manager within 10 calendar days from the date of service of the notice of denial, suspension, modification, revocation, or issuance of a permit subject to conditions. The written appeal shall contain:
a. A brief statement in ordinary and concise language of the specific action protested, together with any material facts claimed to support the contentions of the appellant;
b. A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the protested action should be reversed or otherwise set aside;
c. The signatures of all parties named as appellants and their official mailing addresses; and
d. The verification (by declaration under penalty of perjury) of at least one appellant as to the truth of the matters stated in the appeal.
2. The appeal hearing shall be conducted by a hearing examiner appointed pursuant to section 8.04.070.
3. Upon receipt of any appeal filed pursuant to this section, the city manager shall transmit the appeal to the secretary of the hearing examiner who shall calendar it for hearing as follows:
a. If the appeal is received by the city manager not later than 15 calendar days prior to the next regular appeal hearing, it shall be calendared for hearing at said meeting.
b. If the appeal is received by the city manager on a date fewer than 15 calendar days prior to the next appeal
hearing, it shall be calendared for the next subsequent appeal hearing.
4. Written notice of the time and place of the hearing shall be given at least 10 calendar days prior to the date of the hearing to each appellant by the secretary of the hearing examiner either by causing a copy of such notice to be delivered to the appellant personally or by mailing a copy thereof, postage prepaid, addressed to the appellant at the address shown on the appeal.
5. Failure of any person to file a timely appeal in accordance with the provisions of this section constitutes an irrevocable waiver of the right to an administrative hearing and results in a final adjudication.
6. Only those matters or issues specifically raised by the appellant in the appeal notice shall be considered in the hearing of the appeal.
7. In the case of a suspension, modification, or revocation, the permittee shall not operate during the pendency of any appeal.
B. Hearings-Generally.
1. At the time set for hearing, the hearing examiner shall proceed to hear the testimony of the city manager, the appellant, and other competent persons, including members of the public, respecting those matters or issues specifically listed by the appellant in the notice of appeal.
2. The proceedings at the hearing shall be electronically recorded. Either party may provide a certified shorthand reporter to maintain a record of the proceedings at the party's own expense.
3. The hearing examiner may, upon request of the appellant or upon request of the city manager, grant continuances from time to time for good cause shown, or upon his or her own motion.
4. In any proceedings under this chapter, the hearing examiner has the power to administer oaths and affirmations and to certify to official acts.
C. Conduct of Hearing.
1. Hearings need not be conducted according to the technical rules relating to evidence and witnesses. California Government Code section 11513, subdivisions (a), (b), and (c).
2. Oral evidence shall be taken only upon oath or affirmation.
3. Irrelevant and unduly repetitious evidence shall be excluded.
4. Each party shall have these rights, among others:
a. To call and examine witnesses on any matter relevant to the issues of the hearing;
b. To introduce documentary and physical evidence;
c. To cross-examine opposing witnesses on any matter relevant to the issues of the hearing;
d. To impeach any witness regardless of which party first called the witness to testify;
e. To rebut the evidence presented against the party; and
f. To represent him, her, or itself or to be represented by anyone of his, her, or its choice who is lawfully permitted to do so.
5. In reaching a decision, official notice may be taken, either before or after submission of the case for decision, of any fact that may be judicially noticed by the courts of this state or that may appear in any of the official records of the city or any of its departments.
D. Form and Contents of Decision-Finality of Decision.
1. If it is shown, by a preponderance of the evidence, that one or more bases exist to deny, suspend, modify, revoke, or condition the permit, the hearing examiner shall affirm the city manager's decision. The decision of the hearing examiner shall be in writing and shall contain findings of fact and a determination of the issues presented.
2. The decision shall inform the appellant that the decision is a final decision and that the time for judicial review is governed by California Code of Civil Procedure section 1094.6. Copies of the decision shall be delivered to the parties personally or sent by certified mail to the address shown on the appeal. The decision shall be final when signed by the hearing examiner and served as provided in this section. (Ord. 2021-0016 § 26)
