§ 5.91.120. Denial or revocation of license.

A.

Denial or Revocation of License. In addition to any other penalty authorized by law or this Chapter, a proprietor's application shall be denied by the Department or a tobacco retailer's license shall be revoked by the city administrator as in his or her discretion may seem just, for any reason for which a granting of such license might be lawfully denied, or for any other reason hereinafter in this chapter specifically provided including, but not limited to, any violation of law designated in Section 5.91.100 A. of this Chapter. An appeal of a denial or a revocation of a license under this chapter shall be made only upon a hearing held before the City Administrator after ten (10) days written notice by U.S. mail to such proprietor applying for the license or tobacco retailer's license holder, as applicable, stating generally the grounds of complaint against him or her and stating the time and place where such hearing will be held. In the event of revocation of the license, any certificate issued in connection with the granting of such license shall, by the holder thereof, be forthwith surrendered to the City Administrator.

B.

Hearings on Revocation of License or Appeal of Denial. Any investigation, inquiry or hearing which the City Administrator has power to undertake or to hold may be undertaken or held by such member of the City Administrator's staff as he or she may designate and to whom the matter is assigned. The person to whom a matter is assigned shall be deemed a "Hearing Officer." In any matter so assigned the Hearing Officer conducting the investigation, inquiry or hearing shall report, within thirty (30) days after the conclusion of the investigation, inquiry or hearing his or her findings and recommendations to the City Administrator.

1.

Within sixty (60) days after the filing of the findings and recommendations of the Hearing Officer, the City Administrator shall confirm, adopt, modify or set aside the findings of the Hearing Officer and with or without notice enter his or her order, findings, decision or award based upon the record in the case.

2.

In such hearings, investigations, and inquiries by the City Administrator or a Hearing Officer, he or she shall not be bound in the conduct thereof by the common law or statutory rules of evidence and procedure but inquiry shall be made in the manner, through oral testimony and records, which is best calculated to ascertain the substantial rights of the public parties and carry out justly the spirit and provisions of this chapter.

3.

No informality in any proceeding or the manner of taking testimony shall invalidate any other decision, award or rule made as specified in this chapter. No order, decision, award or rule shall be invalidated because of the admission into the record and the use as any proof of any fact in dispute or any evidence not admissible under the common law or statutory rules of evidence and procedure.

C.

Appeals to Superior Court. Any proprietor excepting to any denial of a tobacco retailer license, or any tobacco retailer license holder excepting to any revocation of such license held by him or her pursuant to the provisions of this Chapter, may appeal in writing to the Alameda Superior Court as provided below.

1.

Hearing Officer's Decision Final. The Hearing Officer's decision pursuant to Section 5.91.120 B. is final. Parties cannot appeal the decision of a Hearing Officer to the City Council. In every final decision reached under this Section, notice of such final decision shall only be given directly to the respondent and such notice shall explain that California Code of Civil Procedure Section 1094.6 governs the time period for which judicial review of any such final decision must be sought. Final notice to the respondent shall conclude with the following statement:

The city has reached a final decision in the adminstrative matter pending before the city. If you choose to seek judicial review of the city's final decision in this matter, such action shall be initiated under California Code of Civil Procedure Section 1094.5 and time limits for filing such an action as are set by California Code of Civil Procedure 1094.6.

2.

Superior Court Review. A party may seek judicial review of a final decision of the Hearing Officer by filing a petition for writ of administrative writ of mandate pursuant to California Civil Code Section 1094.5 within the time frames for filing such actions as provided in California Civil Code Section 1094.6.

D.

Revocation of License Issued in Error. A tobacco retailer's license shall be revoked if the Department or City Administrator finds, after the licensee is afforded reasonable notice and an opportunity to be heard, that one or more of the bases for denial of a license under Section 5.91.060 of this chapter existed at the time application was made or at any time before the license issued. The decision by the Department or the City Administrator shall be the final decision of the city. The revocation shall be without prejudice to the filing of a new license application.

E.

New License After Revocation.

1.

After revocation for a first violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ten (10) days have passed from the date of revocation.

2.

After revocation for a second violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until thirty (30) days have passed from the date of revocation.

3.

After revocation for a third violation of this chapter at a location within any sixty (60) month period, no new license may issue for the location until ninety (90) days have passed from the date of revocation.

4.

After revocation for four or more violations of this chapter at a location within any sixty (60) month period, no new license may issue for the location until five (5) years have passed from the date of revocation.

(Ord. 12867 § 2 (part), 2008; Ord. No. 13452, § 2, 9-19-2017)

Editor's note

See the editor's note to § 5.91.040.