Susana Alcala Wood, City Attorney Jorge Oseguera, City Auditor Mindy Cuppy, City Clerk Howard Chan, City Manager John Colville, City Treasurer City Council Report
915 I Street, 1st Floor
Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2022-00705 March 22, 2022 Consent Item 21
Title: Appointment of Hearing Examiner for Administrative Appeals
Location: Citywide
Recommendation: Pass a Motion pursuant to Sacramento City Code section 1.24.050 1) re-appointing Dennis Hay as hearing examiner to hear administrative appeals under the ordinances in Titles 5, 8, 9, 12, 13 and 17 of the City Code for a four-year term commencing on March 22, 2022, and 2) ratify Hearing Examiner Hay’s decisions from January 1, 2022 to March 22, 2022.
Contact: Davina Smith, Cannabis Manager, (916) 808-4772, [email protected] ;
Christine Autio, Administrative Officer, (916) 808-4773, [email protected], Office of Cannabis Management, Office of the City Manager
Presenter: None
Attachments:
1-Description Analysis
File ID: 2022-00705 Consent Item 21
March 22, 2022
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City of Sacramento
Description/Analysis
Issue Detail: Various chapters of the Sacramento City Code provide for an administrative appeal of actions including administrative penalties, which otherwise would be heard by the City Council. Under City Code section 1.24.050, administrative penalty appeals can be heard by a hearing examiner appointed by the City Council. The Office of Cannabis Management conducts bi-monthly administrative appeal hearings for administrative penalties relating to cannabis, primarily citations that were issued by the Sacramento Police Department.
For code violations resulting in an administrative penalty, the hearing examiner can affirm the administrative penalty amount, reduce the penalty to a lower amount, or find that imposition of the penalty is not warranted. The hearing examiner’s decision is based on the evidence presented, the costs of the correction, and the appellant’s financial situation. The hearing examiner has the discretion to impose a lower, but not a higher penalty amount. In making the decision, the hearing examiner considers evidence presented by all witnesses regarding the seriousness of the violation, the responsible party’s efforts to correct the violation, the impact on the neighborhood, any instances in which the responsible party has been in violation of the same or similar code provisions in the previous three years, and the amount of city staff time which was expended investigating and addressing the violation.
Due to the legal complexities posed at cannabis administrative penalty appeal hearings, a California licensed attorney is needed to serve as the impartial magistrate. Following a Request for Proposal process in 2019, Dennis Hay, an attorney, was appointed as a hearing examiner for a two-year term effective as of January 1, 2020. Mr. Hay has practiced law for over 30 years with an emphasis in municipal law. He served for 12 years as a hearing examiner for the City of Stockton and the last two years with the City of Sacramento.
Mr. Hay’s term expired January 1, 2022, and staff is recommending his reappointment. While the proposed reappointment would allow Mr. Hay to hear other relevant matters under the city code, staff intends to continue Mr. Hay’s assignment to cannabis hearings.
Once appointed, hearing examiners cannot be removed during their term unless they fail to meet the requirements of a hearing examiner such as not properly administering the hearing, failing to issue decisions that are based on the facts disclosed at the hearing, or if they are unable to continue serving due to scheduling conflicts, health conditions, or similar reasons.
Staff is recommending appointment of this hearing examiner to a four-year term. Hearing examiners could apply to be reappointed at the end of their term.
File ID: 2022-00705 Consent Item 21
March 22, 2022
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City of Sacramento
Policy Considerations: None.
Economic Impacts: None.
Environmental Considerations: Not applicable.
Sustainability: Not applicable.
Commission/Committee Action: Not applicable.
Rationale for Recommendation: Hearing examiners are necessary to ensure due process for appeals of administrative penalties. They are non-city employees who conduct hearings and issue opinions based on findings of fact.
Staff is recommending reappointment of Mr. Hay as a hearing examiner. Mr. Hay’s appointment terminated on January 1, 2022; however, he had existing matters on his docket from 2021 that were set for hearing in 2022.
Since January 1, 2022, Mr. Hay has issued a Record of Decision for the following cases and Council action is requested to ratify his decisions to avoid the need to rehear the matters:
• 21-284786 – 1200 Nogales Street
• 21-285761 – 6313 Newkirk Drive
• 21-269297 – 1521 Main Avenue
• 21-265420 – 2129 Harris Avenue
Financial Considerations: The rate for hearing examiners for administrative appeal hearings is $150 per hour. This rate applies to review of the hearing packet, the hearing length, and the time to review the evidence and prepare the decision. Hearing costs are partially offset by hearing appeal fees. There are sufficient resources in the Fiscal Year 2021/22 Office of Cannabis Management Operating budget to fund the hearing costs.
Local Business Enterprise (LBE): Not applicable.