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August 23, 2022
Review of Denial of Business
License Application for JP23
Hospitality Company
Analysis of Hearing Officer’s Findings and Recommendation City of Long Beach City Council Meeting - August 23, 2022
PRESENTED BY
Christopher M. Pisano, Esq.; Patrick D. Skahan, Esq.
MUNICIPAL LAW
March 14, 2022 Denial Letter (Ex. 52)
2 March 14, 2022 Denial Letter Continued
(Ex. 52)
3 Long Beach Municipal Code (LBMC) § 3.80.410
4 • LBMC section 3.80.410: “It shall be the duty of the Director of Financial Management, and he is hereby directed, to administer and enforce each and all of the provisions of this Chapter, and the Chief of Police shall render such assistance in the enforcement of this Chapter as may from time to time be required by the Director of Financial Management.” LBMC § 2.93.050
• LBMC section 2.93.050(A): “Whenever it is provided that a hearing governed by this Chapter shall be heard by the City Council, the Council may, in its discretion, either conduct the hearing itself or appoint a Hearing Officer to conduct the hearing.”
5 Hearing Officer’s Findings and
Recommendation
6 List of Violations Issued to the Applicant
7 LBMC § 2.93.050
• LBMC section 2.93.050(B)(8): “After review of the Hearing Officer’s report, the City may adopt, reject or modify the recommended decision. In its discretion, the City Council may take additional evidence at the hearing or refer the case to the Hearing Officer with instructions to consider additional evidence.”
8 LBMC § 3.80.421.5
• LBMC section 3.80.421.5: “In the event that a particular department of the City rejects an application for the reason that such business or the location at which it is proposed to conduct the same will not so comply with applicable laws and ordinances, the Director Of Financial Management shall not issue such license.”
9 LBMC § 3.80.421.1(A)
• LBMC section 3.80.421.1(A): “The Director shall refer such application to the appropriate departments of the City in order that it may be ascertained whether the business proposed to be conducted or the premises in which it is proposed to locate such business will comply with applicable fire, building safety, zoning, health and other laws and regulations.” 10 The City May Consider Past Conduct as an
Indicator of Future Compliance
• E.g., Shapiro v. San Diego City Council (2002) 96 Cal.App.4th 904. • “…past actions may to some extent evince a relationship to present or future conduct . . . where the past action was in fact an on-going procedure from which the court could reasonably infer, in light of the city attorney's refusal to change that procedure, that there would be continuing or future threatened . . . violations.” (Id. at 916.) • “the trial court was justified in concluding that the City Council's conduct in pursuing its contentions that it may interpret and adjust the requirements of the Brown Act as it sees fit, in dealing with a particular project, clearly demonstrates that more than past violations have occurred or will reasonably probably occur in the immediate future. We conclude the Brown Act authorizes injunctive relief that is based on, in relevant part, a showing of ‘past actions and violations that are related to present or future ones . . . ’ ” (Id. at 917.) 11 LBMC § 3.80.421.1(B)
• LBMC section 3.80.421.1(B), provides in part: “A conditional license shall not be valid for a period longer than one hundred eighty (180) days from the date of application. During such period, based upon review by the appropriate departments of the City, the applicant may be rejected for failure to comply with applicable laws and regulations at any time.” 12 LBMC § 5.06.020
• LBMC section 5.06.020(A): “Any permit to do business in the City issued pursuant to this Title 5 may be suspended, revoked or denied in the manner provided in this Section upon the following grounds: . . .(5) The permittee has failed to comply with any condition which may have been imposed as a
condition of operation or for the issuance of a permit required under the provisions of this Code.”
13 The Hearing Officer’s Interpretation Will
Lead to an Absurd Result
• The City’s Finance Department is entitled to deference in interpretation of its municipal code. (See Dix v. Superior Court (1991) 53 Cal.3d 442, 460 (“Unless unreasonable or clearly contrary to the statutory language or purpose, the consistent construction of a statute by an agency charged with responsibility for its implementation is entitled to great deference”).) • Courts are counseled by the absurdity canon to “avoid any [statutory] construction that would produce absurd consequences.” (Flannery v. Prentice (2001) 26 Cal.4th 572, 578.) 14 Conclusion and Recommendation
• We recommend that the City Council reject the findings and recommendation in the Hearing Officer’s Report, and uphold the denial of Appellant’s business license application.
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