§ 62-4964. Suspension and revocation proceedings.

(a)

Challenge to suspension or revocation. If code enforcement notifies a licensee in writing of the pending suspension or revocation of a license, then the suspension or revocation shall become final and effective ten days after mailing to the licensee's record address, posting the notice at the establishment, or actual delivery of the notice to the licensee, unless the licensee first files with code enforcement a written response stating the reasons why the suspension or revocation is alleged to be in error or inappropriate and a written notice of intent to challenge the suspension or revocation requesting a hearing to determine whether the suspension or revocation will become effective. A suspension or revocation already in effect but not previously challenged in a suspension or revocation hearing, may be challenged in the same manner but is not abated during the proceedings.

(b)

Hearing on suspension or revocation. When a licensee files a written response and notice of intent to challenge a pending or existing suspension or revocation then a public hearing to determine if the pending suspension or revocation will become effective and final shall be held by the code enforcement special master. Code enforcement shall notify the county attorney and any appropriate county staff who shall schedule and provide notice of the hearing.

(1)

The suspension or revocation hearing should be held within 20 days of a written challenge and request for a hearing, or as soon thereafter as can reasonably be scheduled, but no sooner than after seven days notice mailed to the licensee and posting to the public at a place for notices in a public building.

(2)

The participants before the code enforcement special master shall be the licensee, any witnesses of the licensee, county staff, any interested members of the public, and any witnesses of the interested members of the public. Any interested member of the public who participates at the hearing shall provide a mailing address to the code enforcement special master.

(3)

The licensee and any witnesses of the licensee shall be limited to a total of 30 minutes to present the licensee's case. County staff shall be similarly limited to a total of 30 minutes. Each interested member of the public and their witnesses, shall be limited to ten minutes. For good cause shown, the hearing officer may grant additional time to each side or the public.

(4)

Testimony and evidence may be submitted by any witness but shall be limited to matters directly relating to the grounds for suspension or revocation, including the licensee's knowledge of illegal activity occurring at the establishment. It is a rebuttable presumption that the licensee is aware of all activities that are conducted by employees or patrons of the establishment. Irrelevant, immaterial, or unduly repetitious testimony or evidence may be excluded.

(5)

All testimony shall be under oath. The code enforcement special master shall decide all questions of procedure and standing. The order of presentation of testimony and evidence shall be as follows:

a.

The licensee and any witnesses of the licensee.

b.

Any interested member of the public and their witnesses, if any.

c.

The county staff and any witnesses.

d.

Rebuttal witnesses from the licensee.

e.

Rebuttal witnesses from the county staff.

f.

Summation by the licensee.

g.

Summation by the county staff.

(6)

The code enforcement special master may also call and question witnesses or request additional evidence as deemed necessary and appropriate.

(7)

To the maximum extent practicable, the hearing shall be informal. Reasonable cross examination of witnesses shall be permitted, but questioning shall be confined as closely as possible to the scope of direct testimony.

(8)

If the code enforcement special master comes to believe that any facts, claims, or allegations necessitate additional review or response by either the licensee or staff, then the hearing may be continued until an announced date certain.

(9)

The code enforcement special master shall render a written decision determining whether the suspension or revocation will become or remain effective within ten days after the suspension or revocation hearing concludes. The written decision shall specifically include findings determining whether the violation(s) of this article or specified criminal act(s) occurred at the establishment during the time period in question, and whether the licensee of the establishment is responsible because the licensee had actual or implied knowledge that the violation(s) or act(s) were being committed, the violation(s) or act(s) were facilitated or condoned by the licensee, or that the violation(s) or act(s) occurred because the licensee should have known of the illegal activity but acted recklessly, carelessly, negligently, or with a lack of diligence.

(c)

Filing of decision. The original of the written decision of the hearing officer shall be filed with the clerk to the board of county commissioners, and copies shall be mailed to code enforcement, the licensee, and to any interested member of the public who participated at the hearing.

(d)

Surrender of license. A notice of final suspension or revocation shall be provided to the licensee in person or by certified mail to the licensee's record address. The licensee shall immediately return and surrender a revoked license to the permitting and enforcement department.

(e)

Judicial review. Any person who participated in a suspension or revocation hearing before the code enforcement special master and who is aggrieved by the decision of the code enforcement special master, may challenge the decision in the circuit court by filing a petition for writ of certiorari with the clerk to the circuit court not later than 30 days after the decision of the code enforcement special master is rendered. The appellate record before the circuit court shall consist of the complete record of the proceedings before the code enforcement special master. In the event of such an appeal, the action shall be promptly reviewed by the circuit court. The suspension or revocation of a license shall be abated during a timely noticed appeal of a code enforcement special master ruling to the circuit court until the day following the decision of the court.

(f)

Requirement of exhaustion of procedures. Judicial review of a suspension or revocation, or related hearing or appeal proceedings, shall be available only after the administrative remedies procedures and remedies set forth in this section have been exhausted.

(g)

Notice of final suspension or revocation. If no response or request for a suspension or revocation hearing is filed within seven days of the notice of a pending suspension or revocation, or if the licensee who requested the hearing does not appear at the suspension or revocation hearing after notice, or if the code enforcement special master decides after a hearing that a pending suspension or revocation will become final and no appeal is made to the circuit court, then code enforcement shall issue to the licensee notice of final suspension or revocation of the adult entertainment license and mail or arrange delivery of the notice it to the licensee's record address.

(h)

Effective date of suspension or revocation. The suspension or revocation of a license shall take effect the day after delivery of a notice of final suspension or revocation to the licensee in person, or by mail to the licensee's record address, or on the date the licensee surrenders the license, whichever happens first. The licensee shall immediately return and surrender a revoked license to code enforcement or surrender the revoked license, upon demand, to a member of the sheriff's department. A suspension or revocation shall be abated during an appeal of a code enforcement special master's ruling to the circuit court until the day following the decision of the court.

(i)

Effect of final revocation. If a license is revoked, the licensee of the adult entertainment establishment shall not be allowed to obtain another adult entertainment license for a period of one year, and no adult entertainment license shall be issued again to any other person for the location upon which the adult entertainment establishment was situated.

(Ord. No. 01-53, § 10, 9-11-01; Ord. No. 07-36, § 1, 7-24-07)

Editor's note

Ord. No. 01-53, § 10, adopted September 11, 2001, enacted provisions intended for use as § 62-4964. Prior to the reenaction of § 62-4964 by Ord. No. 01-53, Ord. No. 97-16, § 13, adopted May 27, 1997, repealed § 62-4964, pertaining to appeals, as derived from the Code of 1979, § 14-249.