San Bernardino Municipal Code Ch. 9.94 Administrative Hearings and Appeals

For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning.

ACTION. An act or decision by an administrative officer or administrative agency for which a right to appeal under the provisions of this chapter is granted in this code.

ADMINISTRATIVE AGENCY. An organ of the city government, other than the City Council, which, under the direction of the City Manager, has responsibility for carrying out or enforcing the rules, regulations and ordinances of the city, but not including boards and commissions of the city.

ADMINISTRATIVE OFFICER. An officer of the city who is not a member of the legislative body or appointed boards or commissions. Such officers include, but are not limited to, the City Manager, Chief of Police, Fire Chief, Director of Planning and Building, Director of Transportation, Director of Public Works or similar officer.

AGGRIEVED PERSON. Any person whose personal, pecuniary or property right or interest is directly and adversely affected, or upon whom a substantial burden or obligation is imposed by the action or decision appealed from.

APPELLANT. Any aggrieved person who files an appeal.

CODE. The San Bernardino Municipal Code.

HEARING OFFICER. Any person duly qualified and authorized by this chapter to hear and review appeals under this chapter.

RESPONDENT. The administrative officer or agency which took the action appealed from, and any other administrative officer or agency named as RESPONDENT in an appeal.

(Ord. MC-1521, passed 9-18-2019)

It is the purpose and intent of the City Council to afford due process of law to any person who is directly affected by an action or decision of an administrative agency or officer. These procedures are also intended to establish a forum to efficiently and fairly resolve administrative appeals.

(Ord. MC-1521, passed 9-18-2019)

The hearing officer hears appeals from actions taken by an administrative officer or administrative agency when a right to appeal under the provisions of this chapter is granted in this code. Except where this code prescribes another procedure, the rules and procedures pertaining to appeals are as stated herein. The rules and procedures pertaining to appeals under this chapter may be supplemented or modified as stated in the chapter that grants a right to appeal under these provisions. The hearing officer has no authority to hear appeals of any action taken by the City Council or any other board or commission of the city.

(Ord. MC-1521, passed 9-18-2019)

(A) The City Manager must establish procedures for the selection of a qualified person to serve as hearing officer for each matter appealed under this chapter. Hearing officers must be selected in a manner that avoids the potential for pecuniary or other bias.

(B) For purposes of this section, QUALIFIED PERSON includes an individual with a background in the practice of law or with a background in local governance, that is particularly experienced or knowledgeable about the subject matter at issue or that is otherwise deemed qualified by the City Manager.

(Ord. MC-1521, passed 9-18-2019)

(A) As provided by § 9.94.030, the hearing officer hears all appeals in accordance with the procedures contained in this chapter or as supplemented or modified in the chapter granting a right to appeal hereunder.

(B) The hearing officer is authorized to issue decisions and take all actions necessary and proper to carry out the functions of the hearing officer in this chapter, including:

(1) Hold conferences for settlement or simplification of the issues;

(2) Administer oaths and affirmations;

(3) Hear testimony;

(4) Rule upon motions, objections and the admissibility of evidence;

(5) Preserve and authenticate the record of the hearing and all exhibits and evidence introduced at the hearing;

(6) Regulate the course of the hearing in accordance with this chapter or other applicable law; and

(7) Issue a final order which includes findings of fact and conclusions of law.

(C) The hearing officer may request information, services, facilities or any other assistance for the purpose of furthering the objectives of this chapter.

(D) At the hearing, the hearing officer must hear and consider the testimony of the appellant, respondent and their witnesses, as well as any documentary evidence presented by these persons.

(E) The hearing officer must ensure that parties receive a fair hearing and are afforded due process in accordance with the applicable state and federal law governing such hearings.

(Ord. MC-1521, passed 9-18-2019)

Except where this code prescribes another procedure, the following hearing request procedures apply to appeals under this chapter.

(A) Any aggrieved person may contest an action taken by an administrative officer of the city, as provided in § 9.94.030, by filing a written notice of appeal with the City Clerk within 15 calendar days. No fee shall be due for the filing of an appeal. The notice of appeal must also include payment to the City Clerk of the appeal fee, as established or amended, from time to time, by resolution of the City Council.

(B) The notice required by division (A) above must be filed no later than 15 days following the date of mailing to appellant of notice of the action from which the appeal is taken or, if there is no such mailing or none is required, no later than 15 days following the date of the action that is the subject of the appeal.

(C) A written notice of appeal must contain the following information:

(1) The full name, mailing address, e-mail address and telephone number of each appellant who is appealing the action;

(2) A description of the specific action or decision being appealed, including the date of the action;

(3) The grounds for appeal in sufficient detail to enable the hearing officer to understand the nature of the controversy; and

(4) The signature of an appellant.

(D) If the City Clerk does not receive a timely notice of appeal, if the notice of appeal is incomplete or if the notice of appeal does not comply with all of the requirements set forth in this section, the right to appeal the action is waived. In this event, the action is final and binding. A failure to file a timely or proper notice of appeal also constitutes a failure to exhaust administrative remedies.

(Ord. MC-1521, passed 9-18-2019)

Except where this code prescribes another procedure, the following hearing notice procedures apply to appeals under this chapter.

(A) No hearing before a hearing officer under this chapter may be scheduled or held unless a timely and proper notice of appeal has been submitted to the City Clerk as set forth in § 9.94.060.

(B) The City Clerk must schedule the hearing no sooner than 15 days and no later than 60 days from receipt of the notice of appeal, unless the parties waive such time limits. The failure to hold the hearing within this time period does not invalidate any action of the hearing officer.

(C) The City Clerk must provide a copy of the appeal to the respondent within five days after filing.

(D) The City Clerk must notify the appellant, respondent and City Attorney in writing of the date, time and location of the hearing at least 15 days before the date of the hearing.

(E) Failure to receive notice of the time and place of the hearing shall not dismiss any violation at issue or invalidate any action of the hearing officer, if the notice was given in the manner stated in division (D) above.

(F) The notice of hearing may be served by any of the methods of service listed in § 9.94.100.

(G) Unless the notice of appeal names some other respondent, the administrative officer or administrative agency that took the action or made the decision being appealed is designated the “respondent.”

(Ord. MC-1521, passed 9-18-2019)

(A) Participation. The hearing officer must be present at all times to preside over the hearing. All hearings are open to the public. The respondent, or another city representative, is required to participate in the hearing. The appellant is required to participate in the hearing.

(B) Evidence, witnesses and discovery. All parties have the right to present evidence and cross-examine witnesses. The formal rules of evidence and discovery do not apply. The rules of privilege are effective to the same extent that they are now or hereafter may be recognized in civil actions. Irrelevant and unduly repetitious evidence may be excluded. Oral evidence may be taken only on oath or affirmation. The appellant and respondent may represent themselves or be represented by anyone of their choice.

(C) Cross-examination. No party shall have the right to cross-examine any other party or witness except for good cause shown to the satisfaction of the hearing officer. Each party may cross-examine witnesses.

(D) Interpretation and recordation. The appellant may bring an interpreter to the hearing at his or her sole expense. The city may, at its discretion, record the hearing by stenographer, court reporter, audio recording or video recording.

(E) Subpoenas. In any hearing conducted by the hearing officer, he or she has the power to compel the attendance of witnesses for the production of evidence by subpoenas issued under the authority of the City Council and attested by the City Clerk. Subpoenas may also be issued at the request of the parties prior to the commencement of such hearing. No subpoena may be issued for any reason without the concurrence of the City Attorney that there is good cause for such subpoena to be issued and such subpoena is approved by the City Council. It is the duty of the Chief of Police to cause all such subpoenas to be served, and the refusal of a person to attend or to testify in answer to such a subpoena subjects the person to prosecution in the same manner set forth by law for failure to appear before the City Council in response to a subpoena issued by the City Council.

(F) Proof. The standard of proof applicable to the hearing and to be used by the hearing officer in deciding the issue on appeal is proof by a preponderance of the evidence. The respondent bears the burden of proof at the hearing. The hearing officer determines relevancy, weight and credibility of testimony and evidence.

(G) Continuances. The hearing officer, before or during a hearing, may grant a request for a continuance, in his or her discretion, for good cause; however, in no event may the hearing be continued for more than 30 calendar days without stipulation by all parties.

(H) Failure of appellant to appear. If the appellant fails to appear at the hearing, the hearing officer may cancel the hearing and send a notice thereof to the appellant to the address stated on the appeal form. A cancellation of a hearing due to non-appearance of the appellant waives the right to appeal and is failure to exhaust all administrative remedies; provided that proper notice of the hearing as required by this chapter has been provided. In such instances, the action is final and binding.

(Ord. MC-1521, passed 9-18-2019)

(A) The hearing officer must render his or her decision in accordance with the provisions of this chapter, applicable law and all ordinances of this city.

(B) The hearing officer’s decision must be in writing and must set forth the hearing officer’s findings of fact and conclusions of law.

(C) The hearing officer must render a decision within 15 days following the conclusion of the hearing. Failure of the hearing officer to render a decision within this time period does not invalidate any action of the hearing officer.

(D) The hearing officer’s decision must be served on all parties in accordance with § 9.94.100. Failure of a person to receive a properly-served decision does not affect the finality or effectiveness of the decision.

(E) The hearing officer’s decision is the final administrative decision of the city regarding the action that is the subject of the appeal. The hearing officer’s decision is effective on the date of service of the decision. The decision must contain the following statement: “The decision of the hearing officer is final and binding. Judicial review of this decision is subject to the provisions and time limits set forth in California Code of Civil Procedure section 1094.6 et seq.”

(Ord. MC-1521, passed 9-18-2019)

(A) Except where this code prescribes another procedure, any notice or document required to be served under this chapter must be served by personal service or first class mail.

(B) Service is deemed effective on the date it is personally delivered or mailed.

(C) Failure of any person to receive a document properly served under this chapter does not affect the validity of the notice or document, service or any action or proceeding under this chapter.

(Ord. MC-1521, passed 9-18-2019)

Nothing herein limits the city’s ability to seek recovery of its costs or fees incurred in connection with the hearing if authorized by law. The city shall keep an accounting of the hearing costs. If any portion of the action is upheld, even in part, the city is the prevailing party.

(Ord. MC-1521, passed 9-18-2019)

The decision of the hearing officer is not subject to appeal to the City Council or any board or commission of the city. Once the hearing officer’s decision becomes final as provided in this chapter, the appellant must both bring judicial action to contest such decision and provide the city with a notice of the action within 90 days after the date of such decision of the hearing officer, in accordance with the Cal. Code of Civil Procedure, § 1094.6. Failure to do so means all objections to the hearing officer’s decision are waived.

(Ord. MC-1521, passed 9-18-2019)

The hearing officer shall not consider appeals of orders, decisions and determinations of the City Building Official relating to the building standards of the California Building Standards Code, which must be considered by the Building Appeals Board, pursuant to § 2.45.030.

(Ord. MC-1521, passed 9-18-2019)

The provisions of this chapter are severable, and, if any sentence, section or other part of this chapter should be found to be invalid, such invalidity shall not affect the remaining provisions, and the remaining provisions shall continue in full force and effect.

(Ord. MC-1521, passed 9-18-2019)