San Diego Municipal Code Div. 5 Appeal Rights and Procedures

(Incorp. 1–22–1952 by O–5046 N.S., contained in O–3683 N.S., adopted 3–9–1948.) (“Appeal to Council” retitled to “Appeal Rights and Procedures” on 11-20-2000 by O-18885 N.S.)

(a) Except as provided in sections 33.0506 and 33.0507, any person who has regulatory action taken by the Chief of Police against the permit as described in sections 33.0403(b)(4) through (8), may request a hearing conducted by a hearing officer provided by the City Manager.

(b) The request for a hearing must be in writing to the City Manager and must be
made within ten calendar days from the date of the receipt of the notice of
action denying, suspending, revoking or placing conditions on the permit.

(c) Upon receiving a written request for a hearing, or upon the granting of a
hearing pursuant to section 33.0501(f), the City Manager shall set a hearing
not less than five nor more than thirty calendar days from the date of receipt
of the appeal or from the granting of the hearing.

(d) The City Manager shall notify the applicant or permittee of the date, time and
place of the hearing by means of registered mail, certified mail or hand
delivery.

(e) Except as provided in section 33.0501(f), failure to file the request for a
hearing within the ten calendar day period shall result in the denial of a
hearing by the City Manager.

(f) The appellant may request that the hearing be granted despite noncompliance
with the ten-day filing rule. The appellant must demonstrate good cause for
noncompliance in writing. The City Manager must forward the written
request to a hearing officer, who will decide whether a hearing should be
granted. The Chief of Police shall be afforded the opportunity to set forth his
or her position in writing on this issue to the hearing officer.

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

(g) Any requests for a hearing that occur after thirty calendar days from receipt of
the notice of regulatory action will not be forwarded to a hearing officer and
must be denied by the City Manager.

(h) Per Chapter 5, Article 5, all appeals of alarm user permits of fire-harmful gas alarm system revocations or penalties are conducted using the same procedures outlined in this Division. The term Fire-Rescue Chief, as defined in Chapter 5, Article 5, should be substituted for Chief of Police in this Division for appeals related to fire-harmful gas alarm systems. The terms permit and police permit refer to fire-harmful gas alarm system permits, as described in Chapter 5, Article 5, for appeals related to fire-harmful gas alarm systems. (“Right of Appeal — Hearing Officer” retitled to “Right of Appeal to Hearing Officer; Time Limits” and amended 11-20-2000 by O-18885 N.S.) (Amended 11-25-2014 by O-20438 N.S.; effective 12-25-2014.) (Amended 4-6-2016 by O-20625 N.S.; effective 5-6-2016.) (Amended 11-8-2021 by O-21385 N.S.; effective 12-8-2021.)

(a) A hearing shall be conducted to determine the existence of any facts that constitute grounds for the denial, suspension, placing conditions upon or revocation of the permit.

(b) The applicant, permittee, or the Chief of Police may have the assistance of
counsel or may appear by counsel and shall have the right to present evidence.
However, legal representation in administrative hearings is not required.

(c) If the applicant or permitee fails to appear at the hearing, the appeal is
abandoned and the action of the Chief of Police is final.
(“Right of Appeal to City Council” retitled to “Conduct of the Appeal Hearing” and
amended 11-20-2000 by O-18885 N.S.)
(Amended 11-8-2021 by O-21385 N.S.; effective 12-8-2021.)

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

(a) The hearing officer may uphold the denial, suspension, revocation or other decision of the Chief of Police, may allow that which has been denied, reinstate that which has been suspended or revoked, reverse or modify any other decision that is the subject of the appeal.

(b) A copy of the hearing officer’s decision specifying findings of fact and the
reasons for the decision shall be furnished to the applicant, permittee, or the
applicant or permittee’s counsel, and the Chief of Police within thirty calendar
days of the hearing. If the hearing officer determines the complexity of the
case requires additional time in which to render a decision, the time in which
to render the decision is automatically extended another thirty calendar days.

This subsection does not apply to permittees governed by section 33.0507.

(c) The hearing officer’s decision shall be final ten calendar days from the action
of the hearing officer, except

(1) in the event of an appeal brought under section 33.0505; or

(2) if the permittee is governed by section 33.0507.

(d) Except as to the emergency provisions of section 33.0406, the effect of a
decision by the Chief of Police shall be stayed while an appeal to the hearing
officer is pending or until the time for filing such appeal has expired.

(e) (1) The hearing officer’s decision shall be the final administrative remedy,
unless an appeal to the Committee on Public Safety and Livable
Neighborhoods (or its successor committee) is made in writing with
the City Clerk within ten calendar days of receipt of the hearing
officer’s written decision.

(2) However, if the hearing involves an applicant or permittee of a
business or occupation that is a First Amendment protected business or
occupation, including businesses and occupations governed by
Chapter III, Article 3, Divisions 33 and 36 of this Code, the decision
of the hearing officer is the final administrative remedy.

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

(f) In decisions involving businesses and occupations protected by the First Amendment, including businesses and occupations governed by Chapter 3, Article 3, Divisions 33 and 36 of this Code, the hearing officer’s decision is stayed as provided in section 33.0506.

(g) If the hearing officer’s decision is to uphold the denial of a police permit, the
denial remains in effect until otherwise modified or overturned by a court of
competent jurisdiction. This subsection also includes denials of police permits
for businesses and occupations protected by the First Amendment, including
businesses and occupations governed by Chapter 3, Article 3, Divisions 33
and 36 of this Code.
(“Appeal Hearing Decision” added 11-20-2000 by O-18885 N.S.)
(Amended 11-25-2014 by O-20438 N.S.; effective 12-25-2014.)
(Amended 11-8-2021 by O-21385 N.S.; effective 12-8-2021.)

A hearing officer has no power:

(1) to declare an ordinance or statute unenforceable on the basis of it
being unconstitutional unless an appellate court has made a
determination that the ordinance or statute is unconstitutional;

(2) to declare an ordinance or statute unconstitutional;

(3) to declare an ordinance or statute unenforceable on the basis of its
being preempted by another ordinance or statute, unless an appellate
court has made a determination that the ordinance or statute is
preempted; or

(4) to declare an ordinance or statute preempted by another ordinance or
statute.
(“Limits on Hearing Officer’s Power” added 11-20-2000 by O-18885 N.S.)

Procedure; Decisions

(a) The applicant, permittee, and the Chief of Police have the right to appeal a
hearing officer’s decision to the Public Safety and Livable Neighborhoods
Committee of the City Council (or its successor committee).

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

(b) The effect of a decision by the hearing officer shall be stayed while an appeal
to the Committee on Public Safety and Livable Neighborhoods (or its
successor committee) is pending or until the time for filing such appeal has
expired.

(c) When an appeal is filed with the City Clerk, it shall be placed on the

Committee on Public Safety and Livable Neighborhoods (or its successor
committee) agenda for the limited purpose of determining whether the
Committee will hear the appeal.

(d) The Committee may accept an appeal for hearing when any of the following
situations are found to exist:

(1) The appellant was denied the opportunity to make a full and complete
presentation to the hearing officer.

(2) New evidence is now available that was not available at the time of the
hearing officer’s hearing.

(3) The hearing officer’s decision was arbitrary because no evidence was
presented to the hearing officer that supports the decision.

(4) The appeal presents a Citywide issue on which guidance of the
Committee on Public Safety and Livable Neighborhoods (or its
successor committee) is required and the matter is of Citywide
significance.

(5) The hearing officer’s decision is in conflict with adopted Council
policy or the Municipal Code.

(e) The Committee on Public Safety and Livable Neighborhoods (or its successor
committee) shall rely upon the record of the proceedings before the hearing
officer and the written appeal. No oral presentations shall be made to the
Committee on Public Safety and Livable Neighborhoods (or its successor
committee) by proponents or opponents of the appeal.

(f) A vote on a motion to set the appeal for hearing shall not constitute a vote on
the merits of the appeal.

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

(g) If at least three members of the Committee vote in favor of hearing the appeal,
the Chair to the Committee on Public Safety and Livable Neighborhoods (or
its successor committee) shall set the appeal for hearing before the
Committee.

(h) A majority vote of the Committee is required to overturn the decision of the
hearing officer.

(i) The decision of the Committee to grant or deny the appeal is the final
administrative remedy.

(j) Section 33.0505 does not apply to applicants or permittees who are seeking to
engage in, or are engaged in, a business or occupation protected by the First
Amendment. This includes the businesses and occupations regulated in
Divisions 33 (peep show establishments) and 36 (nude entertainment).
(“Right of Appeal to the Committee on Public Safety and Neighborhood Services;
Procedure; Decisions” added 11-20-2000 by O-18885 N.S.)
(Retitled to “Right of Appeal to the Committee on Public Safety and Livable
Neighborhoods; Procedure; Decisions” and amended 11-25-2014 by O-20438 N.S.;
effective 12-25-2014.)

Any person who has been denied a police permit for a business or occupation that is a First Amendment protected business or occupation, as defined in FW/PBS v. City of Dallas, 493 U.S. 215 (1990) or other controlling case law, shall have prompt judicial review of the decision to deny the permit.

The decision to deny such permit is the final administrative action for the applicant, who may then immediately seek writ review in Superior Court pursuant to local court rules, the California Rules of Court, and the Code of Civil Procedure. The businesses and occupations regulated in Divisions 33 (peep show establishments) and 36 (nude entertainment) are governed by this section. (“Review for Denials of Permits to Engage in First Amendment Activity” added 11- 20-2000 by O-18885 N.S.) (Amended 11-25-2014 by O-20438 N.S.; effective 12-25-2014.)

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San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses (12-2021)

Amendment Activity

Any person who holds a police permit for a business or occupation that is protected
by the First Amendment, and who has had regulatory action taken against their
permit, shall have the same appeal rights as those contained in sections 33.0501
through 33.0503, except that:

(a) The hearing officer shall issue and mail his or her decision to the parties or
their counsel within fifteen calendar days of the completion of the appeal
hearing to suspend or revoke the permit. The time to render a decision may
not be extended unless all parties agree to such an extension; and

(b) The hearing officer’s decision is final on the date it is mailed to the parties or
their counsel; and shall be the final administrative remedy; and

(c) There is no appeal to the City Council or any subcommittee thereof; and

(d) The hearing officer’s decision shall include notice that either party may seek
prompt judicial review of the decision pursuant to California Code of Civil
Procedure section 1094.6; and

(e) If the permittee seeks judicial review, the effect of the hearing officer’s
decision is stayed pending the judgment of the superior court. The stay shall
continue for a period of 20 days from the filing of the notice of appeal from
judgement or until the expiration of the time for filing the notice, whichever
occurs first. If no judicial review is sought, the hearing officer’s decision is
final after the last date for seeking such review has passed.
(“Review for Regulatory Action Taken Against Permit Holders Engaged in First
Amendment Activity” added 11-20-2000 by O-18885 N.S.)
(Amended 11-25-2014 by O-20438 N.S.; effective 12-25-2014.)
(Amended 11-8-2021 by O-21385 N.S.; effective 12-8-2021.)

The appeal hearings contained in this Division are the only administrative appeal hearings that apply to decisions by the Chief of Police regulating police-regulated businesses. The administrative appeal process in Chapter 1, Article 2, Divisions 4 and 5 does not apply. (“Other Administrative Appeals Not Applicable” added 11-20-2000 by O-18885 N.S.) (Amended 11-25-2014 by O-20438 N.S.; effective 12-25-2014.) (Amended 11-8-2021 by O-21385 N.S.; effective 12-8-2021.) Ch. Art. Div. 3 3 5 7

San Diego Municipal Code Chapter 3: Business Regulations, Business Taxes, Permits and Licenses, (11-2000)

Article 3: Police Regulated Occupations and Businesses