Berkeley Municipal Code Ch. 11.48 Suspension or Revocation of Permits or Licenses

California Health and Safety Code, Division 22, Chapter 14, Sections 28800 through 28868 (Retail Food Production and Marketing Establishments Law); and California Government Code, Chapter 5, Administrative Adjudication, Sections 11500 through 11529, are adopted as part of this code. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 1 § 1, 1976)

A. Any permit or license granted under this title may be revoked or suspended for:

1. The violation of any of the provisions of this title, or other applicable ordinance, statute or regulation;

2. Fraud in obtaining the permit or license; or

3. For conducting or operating such premises, business or activity regulated under this title in such manner as to constitute a hazard to public health, safety and welfare.

B. Continued operation after notice of suspension or revocation of the permit shall constitute a misdemeanor and violation of this title. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 2 § 1, 1976)

If the chief of environmental health determines that an establishment is not fully in compliance with the provisions of this title and that such violation of this title presents no imminent health hazard, the chief of environmental health shall issue to the permittee or licensee a notice setting forth in clear and concise language the acts or omissions with which the permittee or licensee is charged, specifying the pertinent code sections or regulations, and informing them of the date by which corrective action shall be effected. Where compliance is not achieved within the stated time period of the notice, the chief of environmental health may, in addition to any other remedy allowed by law, serve notice upon said licensee or permittee to appear before a hearing officer at a suspension hearing at a time and place to be stated in the notice to show cause why their license or permit should not be suspended. Such time of appearance shall not be less than five days after service of notice. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 3 § 1, 1976)

The notice required as described in Section 11.48.030 shall be a written statement which shall set forth in clear and concise language the acts or omissions with which such licensee or permittee is charged, and specifying the pertinent code sections or regulations. Such notice shall be served personally, or by registered mail, postage prepaid, addressed to such licensee or permittee at the address shown on the application for such license or permit. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 3 § 2, 1976)

At the time and place specified in such notice for the hearing, the chief of environmental health or their deputy, shall afford the licensee or permittee an opportunity for a private hearing, including cross-examination by the licensee or permittee, and their counsel. The hearing officer shall hear and pass upon objections or protests, if any, which may be raised by the licensee, permittee, their counsel, or other interested persons. Hearing may not be continued or postponed for longer than ten days from the original date specified in the notice without the consent of the licensee or permittee. At the conclusion of the hearing, the hearing officer shall forthwith render their decision, suspending such license or permit, or dismissing the complaint with a brief statement of the reasons therefor. The hearing officer may suspend for reasonable cause any license or permit issued hereunder for a reasonable period of time, but such period of suspension shall not exceed thirty days. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 3 § 3, 1976)

Failure of the licensee or permittee to appear at the hearing after having been notified may be deemed an admission by them of the acts or omissions charged in the notice; and in the event of such failure to appear at the hearing, the chief of environmental health may suspend such license or permit without further evidence than that which served as the basis for the notice. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 3 § 4, 1976)

Any permit or license issued pursuant to this title shall be suspended, and the establishment immediately closed by the chief of environmental health if they find an imminent health hazard, unless such hazard is immediately corrected. Whenever a permit or license is suspended for reason herein, the chief of environmental health shall issue to the permittee or licensee a notice setting forth in clear and concise language the acts or omissions with which the permittee or licensee is charged and specifying the pertinent code sections or regulations, and informing them of the right to appeal such suspension. The permit or license may be suspended for a reasonable period of time, but such period of suspension shall not exceed thirty days. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 1, 1976)

Any licensee or permittee may appeal such suspension. At any time within thirty days after service of suspension notice, the permittee or licensee may request a hearing before the chief of environmental health or their deputy to appeal the suspension of their permit or license. Such request shall be by a written notice stating fully the matter or action appealed from and the grounds for the appeal. Any order of suspension shall be held in abeyance upon filing of notice of appeal. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 2, 1976)

Within ten days after the receipt of the appeal and request for a hearing, the chief of environmental health or their deputy shall hold such a hearing and give notice of the time and place of such hearing to the licensee or permittee not less than five days before the date of the appeal hearing. Such notice shall be served in accordance with the procedure outlined in Section 11.48.070. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 3, 1976)

At the time and place specified in such notice for the hearing, the chief of environmental health or their deputy shall afford the licensee or permittee an opportunity for a private hearing, including cross-examination by the licensee or permittee, and their counsel. The hearing officer shall hear and pass upon objections or protests, if any, which may be raised by the licensee, permittee, their counsel, or other interested persons. Hearing may not be continued or postponed for longer than ten days from the original date specified in the notice without the consent of the licensee or permittee. At the conclusion of the hearing, the hearing officer shall forthwith render their decision and either overrule, modify, or uphold the order of suspension in harmony with the purposes of this title to preserve the public health. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 4, 1976)

A failure to request an appeal hearing within thirty days after service of suspension notice shall be deemed a waiver of a right to such appeal. If appeal right has been waived and the health hazard has not been corrected, a notice will be sent to the permittee or licensee after the thirty-day period setting forth in clear and concise language the acts or omissions with which the permittee or licensee is charged, and specifying the pertinent code sections or regulations, and the fact that such suspension has resulted in initiation of revocation of permit or license proceedings. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 5, 1976)

Any license or permit suspended hereunder or under Sections 11.48.070 through 11.48.110 of this chapter may be reinstated at the end of the suspension period, or prior thereto, if the chief of environmental health determines, by reinspection of the establishment, that there is effective compliance with applicable laws and regulations. Any license or permit suspended hereunder which is not reinstated at the end of the suspension period shall initiate revocation proceedings. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 4 § 6, 1976)

All permits or licenses may be revoked after the procedure set forth in Sections 11.48.070 through 11.48.090 of this chapter has been followed without positive results, for failure to correct causes of any suspension of any permit within the time limits set forth by the hearing officer. No suspension may be granted for more than thirty days. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 5 § 1, 1976)

The chief of environmental health may revoke a permit or license to operate for repeated suspensions resulting from violations of any of the provisions of this title, or other applicable ordinances, statutes or regulations, or frauds in obtaining permits or licenses, or for conducting such premises, business or activity regulated herein in such a manner as to constitute a hazard to the public health, safety and welfare. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 5 § 2, 1976)

The hearing procedure for a revocation of permit or license shall be conducted in the same manner as provided in Sections 11.48.030 through 11.48.060 of this chapter. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 5 § 3, 1976)

Any licensee or permittee whose license or permit has been suspended or revoked by the chief of environmental health may appeal to the City Manager. The appeal shall be conducted under the rules and procedures set forth in Part B of Resolution 47, 053-NS. The decision of the officer hearing such appeal shall be final. (Ord. 4883-NS § 1 Exhibit A, Ch. 10 Art. 6 § 1, 1976)