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(1) Request for Appeal. Any permittee who has been aggrieved by a director’s determination to affirm an order of suspension/revocation and to suspend or revoke a tobacco retailer permit (and impose the corresponding administrative fine) may appeal the director’s determination by submitting a written request for appeal to the city clerk within 10 calendar days of the director’s written determination. The written request for appeal shall contain, at a minimum, the following:

(a) The name of the permittee, the address of the business property, and the tobacco retailer permit number that is subject to the director’s determination to suspend or revoke;

(b) The date on which the director’s determination was issued;

(c) A statement as to all grounds for appeal in ordinary and concise language, together with any material facts claimed to support the contentions of the permittee (as only the matters and issues raised in the written request will be considered on appeal);

(d) A brief statement in ordinary and concise language of the relief sought, and the reasons why it is claimed the director’s determination should be reversed or otherwise set aside;

(e) The signature of all proprietors who are contesting the director’s determination under penalty of perjury as to the contents of the request for appeal.

(2) Staying of Suspension/Revocation. A director’s determination to suspend or revoke a tobacco retailer permit (and to pay the corresponding administrative fine) shall be stayed pending a determination of the city manager (or designee thereof) upon the timely filing of a written request for appeal.

(3) Notice of Appeal Hearing. Upon receipt of such written request for appeal, the city clerk shall give not less than five business days’ written notice to the permittee of the date and time of the appeal hearing. Service of the notice of appeal hearing shall be in the same manner as the order of suspension/revocation.

(4) Appeal Hearing. At the time and place set for the appeal hearing, the city manager (or designee thereof) shall proceed to hear testimony and to receive evidence from the city, the permittee, and other competent persons respecting those matters or issues on appeal. Only those matters or issues specifically raised by the permittee in the written request for appeal shall be considered in the hearing of the appeal. The formal rules of evidence do not apply to this proceeding. If a youth decoy participated in the underlying investigation, the youth decoy shall not be required to appear or to give testimony. At the hearing, the permittee shall be given an opportunity to present any evidence (testimonial, documentary, or otherwise) as it pertains to whether grounds for suspension or revocation exist. In determining whether grounds for suspension or revocation exist, the director shall not consider any evidence pertaining to preventative measures or subsequent remedial measures (e.g., employee training, the termination of employment of the agent/employee that committed the underlying violation, etc.).

(5) Decision on Appeal. If it is shown at the appeal hearing by a preponderance of the evidence that one or more bases exist to suspend or revoke the tobacco retailer permit, the city manager (or designee thereof) shall affirm the director’s determination to suspend or revoke the permit and to impose the corresponding administrative fine. The city manager shall cause to be served upon the permittee a written notice of decision, which shall contain the city manager’s determination as to whether the tobacco retailer permit shall be suspended or revoked and the corresponding administrative fine assessed, as well as findings of fact that support the determination. The written notice of decision shall further inform the appellant that the decision is a final decision and that the time for judicial review for the suspension or revocation is governed by California Code of Civil Procedure Section 1094.6 et seq., and that the time for judicial review for the imposition of the administrative fine is governed by Government Code Section 53069.4(b). The notice of decision shall be served upon the appellant in the same manner as the order of suspension/revocation. A decision to affirm the director’s determination to suspend or revoke a tobacco retailer permit shall become effective, and the permit shall be suspended or revoked, immediately upon service of the written notice of decision. The corresponding administrative fine shall be immediately due upon service of the written notice of decision. (Ord. 695 § 1, 2018).