HomeMy WebLinkAboutORD NO 1781 ORDINANCE NO. 1781 , NEW SERIES
AN ORDINANCE ESTABLISHING AN ADMINISTRATIVE
PROCEDURE ORDINANCE FOR GERTAIN~'BOARDS AND
COMMISSIONS OF THE CITY OF BAKERSFIELD.
WHEREAS, .experience has demonstrated a need for an
Administrative Procedure Ordinance to govern the actions and
proceedings of certain administrative agencies of the City of
Bakersfield, and
WHEREAS, good practice and good procedure are promoted by
the establishment of an Administrative Procedure Ordinance by local
bodies, and
WHEREAS, an Administrative Procedure Ordinance as herein
adopted will insure to both the public and the government of the
City of Bakersfield fair and impartial treatment in matters which
come before city agencies.
NOW, THEREFORE, BE IT ORDAINED by the City Council of the
City of Bakersfield as follows:
SECTION I
That Chapter 3.08 is hereby added to the Municipal Code
of the City of Bakersfield as follows:
Chapter 3.08
RULES AND REGULATIONS
3.08.010 Chapters 3.08 and 3.10 of this title of the
Municipal Code of the City of Bakersfield constitute, and may be
cited as, the Administrative Procedure Ordinance of the City of
Bakers fie ld.
3.08.020 Definitions. In this chapter, unless otherwise
specifically indicated:
(a) "City Agency" shall mean any or all of the following
listed agencies or boards.
Board of Zoning Adjustment
Board of Charity Appeals and Solicitations
Inter-Group Relations Board
Board of Building and Housing Appeals
Fire Prevention Board of Examiners and Appeals
Fire Department Pension Board
Bakersfield Art Co~ission
(b) "Regulation" means every rule, regulation, order
or standard of general application or the amendment,
supplement or revision of any such rule, regulation,
order or standard adopted by any city agency to
implement, interpret, or make specific the law
enforced or administered by it, or to govern its
procedure, except one which relates only to the
internal management of the city agency.
(c) "Order of repeal" means any resolution, order or
other official act of a city agency which expressly
repeals a regulation in whole or in part.
3.08.030 Proviso. Except as elsewhere herein provided,
nothing in this chapter confers authority upon or augmmnts the
'authority of any city agency to adopt, administer, or enforce any
regulation. Each regulation adopted, to be effective, must be
within the scope of authority conferred and in accordance with
standards prescribed by other provisions of law.
3.08.040 Limitation. Whenever by the express or implied
terms of any ordinance a city agency has authority to adopt
regulations to implement, interpret, make specific or otherwise
carry out the provisions of the ordinance, no re§ulation adopted is
valid or effective unless consistent and not in conflict with the
ordinance and reasonably necessary to effectuate the purpose of the
ordinance.
3.08.050 Filing. Every city agency shall:
(a) File with the City Clerk a certified copy of every
regulation adopted by it except one which:
(1) Establishes or fixes rates, prices or tariffs.
(2) Relates to the use of public works, including
streets and highways, under the jurisdiction of
any city agency when the effect of such order
is indicated to the public by means of signs or
signals.
(3) Is directed to a specifically named person or to
a group of persons and does not apply generally
throughout the City.
(b) File with the City Clerk of the City of Bakersfield a
certified copy of every order of repeal of a regula-
tion required to be filed under subdivision (a) of
this section.
(c) Deliver to the City Clerk of the City of Bakersfield
at the time of filing a regulation or order of repeal
two duplicate copies of the regulation or order of
repeal together with a citation of the authority
pursuant to which it or any part thereof was adopted.
3.08.060 Pees. No fee shall be charged by any city
official or public officer for the performance of any official act
in connection with the certification or filing of regulations
pursuant to this article.
3.08.070 Endorsement by City Clerk. The City Clerk of
the City of Bakersfield shall endorse on each copy of each
regulation or order of repeal filed with or delivered to her, the
time and date of filing and shall maintain a file of the certified
copies of regulations and orders of repeal for public inspection.
3.08.080 Presumptions from Filing. The filing of a
regulation or order of repeal with the City Clerk of the City of
Bakersfield raises the rebuttable presumptions that:
(a) It was duly adopted.
(b) It ~as duly filed and made available for public
inspection at the day and hour endorsed on it.
(c) All requirements of this chapter relative to such
regulations have been complied with.
The courts shall take judicial notice of the contents of
each regulation and of each order of repeal duly filed.
3.08.090 Purpose of Chapter. The provisions of this
chapter are applicable to the exercise of any quasi-legislative
power conferred by any ordinance heretofore or hereafter enacted,
but nothing in this article repeals or diminishes additional
requirements imposed by any such ordinance. The provisions of this
article shall not be superseded or modified by any subsequent
legislation except to the extent that such legislation shall do so
expressly.
3.08. 100 Emergency Regulations.
(a) The provisions of this chapter shall not apply to
any regulation not required to be filed with the
City Clerk of the City of Bakersfield under this
chapter, and only this section of this chapter shall
apply to any regulation prescribing an agency's
orga~i~a~i6n or procedure or to an emergency
regulation adopted pursuant to subdivision (b) of
this section.
(b) If in any particular case the city agency makes a
finding that the adoption of a regulation or order
of repeal is necessary for the immediate preservation
of the public peace, health and safety or general
welfare and that notice and public procedure thereon
are impracticable, unnecessary, or contrary to the
public interest, the regulation or order of repeal
may be adopted as an emergency regulation or order of
repeal...
3.08.110 Effective Date. A regulation or an order of
r~peal required to be filed with the City Clerk of the City of
Bakersfield shall become effective on the thirtieth day after the
date of filing unless:
(a) Otherwise specifically provided by the ordinance
pursuant to which the regulation or order of
repeal was adopted, in which event it becomes
effective on the day prescribed by such ordinance.
(b) It is a regulation prescribing an agency's organi-
zation or procedure, in which event it shall become
effective upon filing or upon any later date
specified by the city agency in a written instrument
filed with, or as part of, the regulation or order
of repeal.
(c) It is an emergency regulation or order of repeal
adopted pursuant to subdivision (b) of Section 3.08.100,
in which case the finding shall be filed with the City
Clerk together with the emergency regulation or order
of repeal, which shall, in that event only, become
effective upon filing or upon any later date specified
by the city agency in a written instrument filed with,
or as part of, the regulation or order of repeal.
(d) A later date is prescribed by the city agency in a
written instrument filed with, or as part of, the
regulation or order of repeal.
3.08.120 Notice of Proposed Action. At least thirty (30)
days prior to the adoption, repeal or rescission of a regulation,
notice of the proposed action shall be:
(a) Published in a newspaper of general circulation,
trade or industry publication, as the city agency
shall prescribe.
(b) Mailed to every person who has filed a request for
notice thereof with the city agency.
(c) In cases in which the city agency is within a city
department, retailed or delivered to the head of such
department.
(d) When appropriate in the judgment of the city agency,
(1) mailed to any person or group of persons whom
the agency believes to be interested in the proposed
action and, (2) published in such additional form
and manner as the city agency shall prescribe.
Where the form or manner of notice is prescribed by
ordinance in any particular case, in addition to filing and mailing
notice as required herein, the notice shall be published, posted,
retailed, filed or otherwise publicized as prescribed by that
ordinance.
The failure to mail notice to any person as provided in
this section shall not invalidate any action taken by a city agency
pursuant to this article.
3.08.130 Contents of Notice. The notice of proposed
adoption, repeal or rescission of a regulation shall include:
(a) A statement of the time, place and nature of the
proceedings for adoption, repeal or rescission of
the regulation.
(b) Reference to the authority under which the regulation
is D~oposed.
(c) Either the express terms or an informative summary
of the proposed regulation.
(d) Such other matters as are prescribed by ordinance
applicable to the specific city agency or to any
specific regulation or class of regulations.
3.08. 140 Public Proceedings. On the date and at the time
and place designated in the notice the city agency shall afford any
interested person or his duly authorized representative, or both,
the opportunity to present statements, arguments, or contentions in
writing, with or without opportunity to present the same orally.
The city agency shall consider all relevant matter presented to it
before adopting, amending or repealing any regulation.
In any hearing under this section the city agency or its
duly authorized representative shall have authority to administer
oaths or affirmations, and tomy continue or postpone such hearing
from time to time to such time and at such place as it shall
de termine.
3.08. 150 Right to Petition. Except where the right to
petition for adoption of a regulation is restricted by ordinance
to a designated group or where the form of procedure for such a
petition is otherwise prescribed by ordinance, any interested person
may petition a city agency requesting the adoption or repeal of a
regulation as provided in this article. Such petition shall state
clearly and concisely:
(a) The substance or nature of the regulation, amendment,
or rescission requested.
(b) The reasons for the request.
(c)Reference to the authority of the city agency to
take the action requested.
3.08.160 Procedure on Petition. Upon receipt of a
petition requesting the adoption, amendment or repeal of a regulation
pursuant to this article, a city agency shall within thirty (30) days
deny the petition in writing or schedule the matter for public
hearing.
SECTION II
That Chapter 3.10 is hereby added to the Municipal Code
of the City of Bakersfield as follows:
Chapter 3.10
ADMINISTRATIVE ADJUDICATION
3.10.010 Definitions. In this chapter unless the context
or subject matter otherwise requires:
(a) "Agency" means the city boards and commissions
enumerated in Section 3.10.020 and those to which
this chapter is otherwise made applicable by law.
(b) "Party" includes the agency, the respondent and any
person, other than an officer or an employee of the
agency in his official capacity, who has been
allowed to appear in the proceeding.
(c) "Respondent" means any person against whom an
accusation is filed pursuant to Section 3.10.040 of
the Mun.~cipal Code or against whom a statement of
issues is filed pursuant to Section 3.10.050 of the
Municipal Code.
(d) '"Hearing officer" means a hearing officer qualified
under Section 3.10.030 of the Municipal Code of the
City of Bakersfield.
(e) "Agency member" means any person who is a member of
any agency to which this chapter is applicable and
includes any person who himself constitutes an
agency.
3.10.020 A_pplication of Chapter.
(a) The procedure of any agency shall be conducted
pursuant to the provisions of this chapter only as
to those agencies to which this chapter is made
applicable herein or by the ordinances relating to
the particular agency.
(b) The enumerated agencies referred to in Section
3.10.010 are:
Board of Zoning Adjustment
Board of Charity Appeals and Solicitations
Inter-Group Relations Board
Board of Building and Housing Appeals
Fire Prevention Board. of Examiners and Appeals
Fire Department Pension Board
Bakers fie id Art Co~is sion
In addition to the agencies enumerated in this
section,, additional agencies may have this chapter made applicable
to them by the ordinance creating or authorizing said agency.
3.10.030 Appointment of Hearing Officers. Unless
otherwise provided, the office of the City Attorney of the City of
Bakersfield shall, every six months, provide a list of ten qualified
hearing officers from members of the Kern County Bar Association.
Any agency requi~ing a hearing officer for the purposes of this
ordinance has power to appoint them from the current list supplied
by the City Attorney for the particular hearing· Each hearing
officer qualified to the list of the City Attorney of the City of
Bakersfield shall have been admitted to practice law in this State
for at least five years immediately preceding his appointment and
shall possess any additional qualifications established by the City
Attorney of the City of Bakersfield for the particular class of
position involved· This provision shall not be deemed to mean that
a hearing officer shall be required at every hearing held pursuant
to this act but only at those proceedings where such an officer is
otherwise required by law or where the agency determines upon the
recommendation of the City Attorney that a hearing officer is
needed or demand for such services is made and paid for by respondent.
3·10.040 Accusation· A hearing to determine whether a
right, authority, license or privilege should be revoked, suspended,
limited or condition shall be initiated by filing an accusation. The
accusation shall be a written statement of charges which shall set
forth in ordinary and concise language the acts or omissions with
which the respondent is charged, to the end that the respondent
will be able to prepare his defense· It shall specify the laws,
ordinances and rules which the respondent is alleged to have
violated, but shall not consist merely of charges phrased in the
language of such laws, ordinances and rules. The accusation
shall be verified unless made by a public officer acting in his
official capacity or by an employee of the agency before which the
proceeding is to be held. The verification may be on information
and belief.
3.1.0.050. Statement of Issues. A hearing to determine
whether a right, authority, license or privilege should be granted,
issued or renewed shall be initiated by filing a statement of
issues. The statement of issues shall be a written statement
specifying the ordinances and rules with which the respondent must
show compliance by producing proof at the hearing, and in addition
any particular matters which have come to the attention of the
initiating party and which would authorize a denial of the agency
action sought. The statement of issues shall be verified unless
made by a public officer acting in his official capacity or by an
employee of the agency before which the proceeding is to be held.
The verification may be on information and belief. The statement of
issues shall be served in the same manner as an accusation; providing,
that, if the hearing is held at the request of the respondent, the
provisions of' Sections 3.10.060. and 3.10.070 shall not apply and the
statement of issues together with the notice of hearing shall be
delivered or mailed to the parties as herein provided in this
chapter.
3.1.0.060 Service of Accusation~ What Included
(a) Upon the filing of the accusation the agency shall
serve a copy thereof on the respondent as provided
in subdivision (c). The agency may include with the
accusation any information which it deems appropriate,
but it shall include a post card or other form
entitled Notice of Defense which, when signed by or
on behalf of the respondent and returned to the
agency, will acknowledge service of the accusation
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and constitute a notice of defense under Section
3.10.070. A copy of the accusation shall include
or be accompanied by a statement that respondent
may request a hearing by filing a notice of defense
as provided in Section 3.10.070 within ten days after
service upon him of the accusation, and that failure
to do so will constitute a waiver of his right to a
hearing.
Statement to Respondent.
(b) The statement to respondent shall be substantially
in the following form:
Unless a written request for a hearing signed by or
on behalf of the person named as respondent in the
accompanying accusation is delivered or mailed to
the agency within ten days after the accusation was
personally served on you or mailed to you, (here
insert name of agency) may proceed upon the
accusation without a hearing. The request for a
hearing may be made by delivering or mailing the
enclosed form entitled Notice of Defense, or by
delivering or mailing a notice of defense as
provided by Section 3.10.070 of the Municipal Code
of the City of Bakersfield to: (here insert name
and address of agency).
Manner of Service.
(c) The accusation and all accompanying information may
be sent to respondent by any means selected by the
agency. But no order adversely affecting the rights
of the respondent shall be made by the agency in any
-- case unless the respondent shall have been served
personally or by registered mail as provided herein,
or shall have filed a notice of defense or otherwise
appeared. Service may be proved in the manner
11.
authorized in civil actions. Service by registered
mail shall be effective if an ordinance or agency
rule requires respondent to file his address with
the agency and to notify the agency of any change,
and if a registered letter containing the accusation
and accompanying material is mailed, addressed to
respondent at the latest address on file with the
agency.
3. ].0.070 .Notice of Defense.
(a) Within ten days after service upon him of the
accusation the respondent may file with the agency
a notice of defense in which he may:
(1) Request a hearing;
(2) Object to the accusation upon the ground that
it does not state acts or omissions upon which
.the agency may proceed;
(3) Object to the form of the accusation on the
ground that it is so indefinite or uncertain
that he can not identify the transaction or
prepare his defense;
(4) Admit the accusation in whole or in part;
(5) Present new matter by way of defense.
Within the time specified respondent may file one or
more notices of defense upon any or all of these
grounds but all such notices shall be filed within
that period unless the agency in its discretion
authorizes the filing of a later notice.
(b) The respondent shall be entitled to a hearing on the
merits if he files a notice of defense, and any such
notice shall be deemed a specific denial of all
parts of the accusation not expressly admitted.
Failure to file such notice shall constitute a waiver
of respondent's right to a hearing, but the agency in
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its discretion may nevertheless grant a hearing.
Unless objection is taken as provided in subdivision
(a) (3), all objections to the form of the accusation
shall be deemed waived.
(c) The notice of defense shall be in wc~ting signed by
or on behalf of the respondent and shall state his
mailing address. It need not be verified or follow
any particular form.
3.].0.080 Amended or Supplemental Accusation. At any time
before the matter is submitted for decision the agency may file or
permit the filing of an amended or supplemental accusation. Ail
parties shall, be notified thereof. If the amended or supplemental
accusation presents new charges the agency shall afford respondent
a reasonable opportunity to prepare his defense thereto, but he ~hall
not be entitled to file a further pleading unless the agency in its
discretion so orders. Any new charges shall be deemed controverted,
and any objections to the amended or supplemental accusation may be
made orally and shall be noted in the record.
3.1.0.090 Time and Place of Hearing. The agency shall
determine the time and place of hea~ing.
3.10. 100 Form of Notice of Hearin§. The agency shall
deliver or mail a n~tice of hearing to all parties at least 10 days
prior to the hearing. The hearing shall not be prior to the
expiration of the time within which the respondent is entitled to
file a notice, of defense.
The notice to respondent shall be substantially in the
following form but may include other information:
You are hereby notified that a hearing will be held
before (here insert name of agency) at (here insert
place of hearing) on the day.of , 19 ,
at the hour of , upon the charges made in the
accusation served upon you. You may be present at the
hearing, may be, but need not be, represented by counsel,
13.
may present any relevant evidence, and will be given
full opportunity to cross-examine all witnesses testifying
against you. You are entitled to the issuance of subp6enas
to compel the attendance of witnesses and the production
of books, documents or other things by applying to (here
insert appropriate office of agency).
3.10.110 Subpoenas.
(a) Before or during the hearing has commmnced the City
Clerk of the City of Bakersfield shall issue
subpoenas and subpoenas duces tecum at the request
of any party in accordance with the provisions of
Section 1985 of the Code of Civil Procedure.
Witnesses From More Than 100 Miles.
(b) The process issued pursuant to subdivision (a) shall
extend to all parts of the State and shall be served
in accordance with the provisions of Sections 1987 -
1988 of the Code of Civil Procedure. No witness
shall be obliged to attend from a place out of the
Bakersfield Judicial District unless the distance be
less than 100 miles from his place of residence,
except that the agency, upon affidavit of any party
showin§ that the testimony of such witness is
material and necessary, may endorse on the subpoena
an order requiring the attendance of such witness.
Witness Fees and Expenses.
(c) Ail witnesses appearing pursuant to subpoena, other
than the parties or officers or employees of the
City or any political subdivision thereof, shall
receive fees, and all witnesses appearing pursuant
to subpoena, except the parties, shall receive
mileage in the same amount and under the same
circumstances as prescribed by law for witnesses in
civil actions in a municipal court. Witnesses
14.
appearing pursuant to subpoena, except the parties,
who attend hearings at points so far removed from
their residences as to prohibit return thereto
from day to day, shall be entitled in addition to
fees and mileage to a per diem compensation of $3
for expenses of subsistence for each day of actual
attendance and for each day necessarily occupied in
traveling to and from the hearing. Fees, mileage
and expenses of subsistence shall be paid by the
party at whose request the witness is subpoenaed.
3.10.120 Depositions. On verified petition of any party,
an agency shall order that the testimony of any material witness
residing within or without the Bakersfield Judicial District be
taken by deposition in the manner prescribed by law for depositions
in civil actions. The petition shall set forth the nature of the
pending proceeding; the name and address of the witness whose
testimony is desired; a showing of the materiality of his testimony;
a showing that the witness will be unable or can not be compelled
to attend; and shall request an order requiring the witness to
appear and testify before an officer named in the petition for that
purpose. Where the witness resides outside the Bakersfield Judicial
District and where the agency has ordered the taking of his
testimony by deposition, the agency shall obtain an order of the
municipal court to that effect by filing a petition therefor in the
municipal court.
3.10. 130 Discovery.
(a) Upon motion of any party showing good cause
therefor, and upon at least 10 days notice to all
other parties, the agency before which an
accusation or hearing is pending may,
(1) order any party to produce and permit the
inspection and copying or photographing, by
15.
or on behalf of the moving party, of any
designated documents, papers, books, accounts,
letters, photographs, objects or tangible
things, not privileged which constitute or
contain evidence relating to any of the
matters within the scope of the accusation or
hearing and which are in his possession,
custody or control; or
(2) order any party to permit entry upon designated
land or other property in his possession or
control for the purpose of inspecting,
measuring, surveying, or photographing the
property or any designated object or operation
thereon within the scope of the accusation or
hearing. The order shall specify the time,
place, and manner of making inspection and
taking the copies and photographs and may
prescribe such terms and conditions as are just.
(b) Service upon a party of any notice, motion or order
made under this section may be made upon any party
or his attorney in the manner provided in Chapter 5,
Title 14, Part 2 (co~L..L~ncing at Section 1010) of the
Code of Civil Procedure of the State of California.
3.10.140 Hearing Officer to Preside.
(a) Every hearing in a contested case shall be presided
over by a hearing officer where required by law or
the agency or demand for an officer is made hy~ the
respondent party. Where a hearing officer is used,
the agency itself shall determine whether a hearing
officer is to hear the case alone or whether the
agency itself is to hear the case with the hearing
officer. Where demand for a hearing officer is
16.
made by a respondent party, not otherwise entitled to
such services, the cost of such services shall be
borne by the respondent party.
Powers of Hearing Officer.
(b) When the agency itself hears the case the hearing
officer shall preside at the hearing, rule on the ad-
mission and exculusion of evidence, and shall have
exclusive authority to rule on admissibility of
evidence and advise the agency on matters of law; the
agency itself shall exercise all other powers relating
to the conduct of the hearing but may delegate any or
all of them to the hearing officer. When the hearing
officer alone hears a case he shall exercise all
powers relating to the conduct of the hearing.
Disqualification of Hearing Officer an.d A~encZ Members.
(c) A hearing officer or agency member shall voluntarily
disqualify himself and withdraw from any case in which
he can not accord a fair and impartial hearing or
consideration. Any party may request the disqualifi-
cation of any hearing officer or agency member by
filing an affidavit, prior to the taking of evidence
at a hearing, stating with particularity the grounds
upon which it is claimed that a fair and impartial
.hearing can not be accorded. Where the request concerns
an agency member the issue shall be determined by the
other members of the agency. Where the request
concerns the hearing Officer the issue shall be
determined by the agency itself if the agency itself
hears the case with the hearing officer, otherwise
the issue shall be determined by the hearing officer.
No agency member shall withdraw voluntarily or be
subject to disqualification if his disqualification
would prevent the existence of a quorum qualified to
act in the particular case.
17.
(d) The proceedings at the hearing shall be reported by
an electronic recorder or phonographic reporter at
the option of the agency. Where demand for a
phonographic reporter is made by the respondent
party such service shall be furnished by the agency
at the respondent's expense payable in advance.
3.10.150 Evidence Rules.
(a) Oral evidence shall be taken only on oath or
affirmation.
(b) Each party shall have these rights: to call and
examine witnesses; to introduce exhibits; to
cross-examine opposing witnesses on any matter
relevant to the issues even though that matter was
not covered in the direct examination; to impeach
any witness regardless of which party first called
him to testify; and to rebut the evidence against
him. If respondent does not testify im his own
bmhalf he may be called and examined as if under
cross-examination.
Admissibility of Evidence.
(c) The hearing need not be conducted according to
technical rules relating to evidence and witnesses.
Any relevant evidence shall be admitted if it is the
sort of evidence on which responsible persons are
accustomed to rely in the conduct of serious affairs
regardless of the existence of any common law or
statutory rule which might make improper the
admission of such evidence over objection in civil
actions. Hearsay evidence may be used for the
purpose of supplementing or explaining any direct
evidence but shall not be sufficient in itself to
support a finding unless it would be admissible
over objection in civil actions. The rules of
18.
privilege shall be effective to the same extent
that they are now or hereafter may be recognized in
civil actions, and irrelevant and unduly ~epetitious
evidence shall be excluded.
3.10.160 Evidence by Affidavit.
(a) At any time ten or more days prior to a hearing or
a continued hearing, any party may mail or deliver
to the opposing party a copy of any affidavit.which
he proposes to introduce in evidence, together with
a notice as provided in subdivision (b). Unless the
opposing party, within seven days after such mailing
or delivery, mails or delivers to the proponent a
request to cross-examine an affiant, his right to
cross-examine such affiant is waived and the affidavit,
if introduced in evidence, shall be given the same
effect as if the affiant had testified orally. If an
opportunity to cross-examine an affiant is not
afforded after request therefor is made as herein
provided, the affidavit may be introduced in evidence,
but shall be given only the same effect as other
hearsay evidence.
(b) The notice referred to in subdivision (a) :~hall be
substantially in the following form:
The accompanying affidavit of (here insert
name of affiant) will be introduced as evidence at
the hearing in (here insert title of proceeding).
(Here insert name of affiant) will not be called to
testify orally and you will not be entitled to
question him unless you notify (here insert name of
proponent or his attorney) at (here insert address)
that you wish to cross-examine him. To be effective
your request must be mailed 6=rdelivered to (here
insert name of proponent or his attorney) on or
19.
before (here insert a date seven days after the
date of mailing or delivering the affidavit to the
opposing party).
3.10.170 Official Notice. In reaching a decision offimial
notice may be taken either before or after submission of the case
for decision, of any generally accepted technical or scientific
matter within the agency's special field, and of any fact which tomy
be judicially' noticed by the courts of this State. Parties present
at the hearing shall be informed of the matters to be noticed, and
those matters shall be noted in the record, referred to therein, or
appended thereto. Any such party shall be given a reasonable
opportunity on request to refute the officially noticed matters by
evidence or by written or oral presentation of authority, the
manner of such refutation to be determined by the agency.
3.10. 180 Amendment of Accusation After Submission. The
agency may order amendment of the accusation after submission of
the case for decision. Each party shall be giver notice of the
intended amendment and opportunity to show that he will be prejudiced
thereby unless the case is reopened to permit the introduction of
additional evidence in his behalf. If such prejudice is shown the
agency shall reopen the case to permit the introduction of
additional evidence.
3.10.190 Decision.
(a) Where a contested case is heard before an agency
itself, no member thereof who did not hear the
evidence shall vote on the decision.
Adoption of Proppsed Decision of Hearing Officer.
(b) If a contest~.d case is heard by a hearing officer
alone, he shall prepare a proposed decision in such
_ form that it may be adopted as the decision in the
case. A copy of the proposed decision shall be
filed by the agency as a public record. The agency
itself may adopt the proposed decision in its
20.
entirety, or may reduce the proposed penalty
and adopt the balance of the proposed decision.
Procedure Upon Failure to Adopt Proposed Decision.
(c) If the proposed decision is not adopted as provided in
subdivision (b) each party shall be furnished with a
copy of the proposed decision. The agency itself
may decide the case upon the record, including the
transcript, with or without taking additional evidence,
or may refer the case to the same or another hearing
officer to take additional evidence. If the case is
so assigned to a hearing officer he shall prepare a
proposed decision as provided in subdivision (b)
upon the additional evidence and the transcript and
other papers which are part of the record of the
prior hearing. A copy of such proposed decision
shall be furnished to each party. The agency itself
shall decide no case provided for in this subdivision
without affording the parties the opportunity to
present either oral or written ar§ument before the
agency itself. If additional oral evidence is
introduced before the agency itself no agency mmmber
may vote unless he heard the additional oral evidence.
3.10.200 Form of Decision. The decision shall be in
writing and shall contain findings of fact, a determination of the
issues presented and the penalty, if any. The findings may be
stated in thE: language of the pleadings or by reference thereto.
COpies of thE: decision shall be delivered to the parties personally
or sent to them by registered mail.
3.10.210 Effective Date of Decision.
(a) The decision shall becomm effective thirty days after
it is delivered or mailed to respondent unless: A
reconsideration is ordered within that time, or the
21.
agency itself orders that the decision shall become
effective sooner, or a stay of execution is granted.
(b) A stay of execution may be included in the decision
or if not included therein may be granted by the
agency at any time before the decision becomes
effective. Where an agency has the power to make
a probationary or conditional order the stay of
execution provided herein may be accompanied by an
express condition that respondent comply with
specified terms of probation; provided, however,
that the terms of probation shall be just and
reasonable in the light of the findings and decision.
(c) If respondent was ~required to register with any
public officer, a notification of any suspension or
revocation shall be sent to such officer after the
decision has become effective.
3.10.220 Defaults. If the respondent fails to file a
notice of defense or to appear at the hearing, the agency itself
may take action based upon the respondent's express admissions or
upon other evidence and affidavits may be used as evidence without
any notice to respondent; and where the burden of proof is on the
respondent to establish that he is entitled to the agency action
sought, the agency may act without taking evidence. Nothing herein
shall be construed to deprive the respondent of the right to make
any showing by way of mitigation.
3.10.230 Reconsideration.
(a) The agency itself may order a reconsideration of
all or part of the case on its own motion or on
petition of any party. The power to order a
reconsideration shall.expire thirty days after the
delivery or mailing of a decision to respondent, or
on the date set by the agency itself as the effective
date of the decision if such date occurs prior to
22.
the expiration of the thirty-day period. If no'
action is taken on a petition within the time
allowed for ordering reconsideration the petition
shall be deemed denied.
(b) The case may be reconsidered by the agency itself
on all the pertinent parts of the record and such
additional evidence and argument as may be
permitted, or may be assigned to a hearing officer.
A reconsideration assigned to a hearing officer
shall be subject to the procedure provided in
Section 3.10. 190. If oral evidence is introduced
before the agency itself no agency member may vote
unless he heard the evidence.
3.~.10.240 Petition for Reinstatement or Reduction of Penalty.
A person whose permit or license has been revoked or suspended may
petition the agency for reinstatement or reduction of penalty after
a period of not less than one year has elapsed from the effective
date of the decision or from the date of the denial of a similar
petition. The agency shall give notice to the City Attorney of the
filing of the petition and the City Attorney and the petitioner
shall be afforded an opportunity to present either oral or written
argument before the agency itself. The agency itself shall decide
the petition, and the decision shall include the reasons therefor.
This section shall not apply if the ordinances dealing with the
particular agency contain different provisions for reinstatement or
reduction of penalty.
3.10.250 Continuances. The agency may grant continuances
at any stage of the proceedings.
3.10.260 Contempt. If any person in proceedings before
an agency disobeys or resists any lawful order or refuses to respond
to a subpoena, or refuses to take the oath or affirmation as a
witness or thereafter refuses to be examined, or is guilty of
misconduct during a hearing or so near the place thereof as to
23.
obstruct the proceeding, any party may bring the matter to the
Municipal Court of the Bakersfield Judicial District, by giving due
notice to all parties and the agency shall certify the facts to the
Municipal Court of the Bakersfield Judicial District. The court
shall thereupon issue an order directing the person to appear
before the court and show cause why he should not be phnished as
for contempt. The order and a copy of the certified statement shall
be served on the person. Thereafter the Municipal Court §hall have
jurisdiction of the matter. The same proceedings shall be had, the
same penalties may be imposed and the person charged may purge
himself of the contempt in the same way, as in the case of a person
who has con~nitted a contempt in the trial of a civil action before
a municipal court.
3.1.0.270 Mail Vote. The members of an agency qualified
to vote on any question may vote by mail.
3.1.0.280 Charge, Any sums authorized to be expended
under this chapter by any agency shall be a legal charge against
the funds of the agency.
3.1.0.290. Power to Administer Oaths. In any proceedings
under this chapter any agency, agency member, secretary of an
agency or hearing officer has power to administer oaths and
affirmations and to certify to official acts.
SECTION III
This ordinance shall be effective thirty days after its
cna c tmen t.
000'
24.
I HEREBY CERTIFY that the foregoing Ordinance was
passed and adopted by the Council of the City of Bakersfield at
a regular meeting thereof held on the 17th day of March, 1969,
by the following vote:
^Y.~:5: COGN'C~L!.~.EN I IEI~EY, HOSI(ING, REE$, RUCKER, STIERN, VETrER, WHITr~.Fo;ORE
NOES:COUNCILMEN: ~,~,~.,
ABSENT COUNCILMEN: .~..~ ~
ABSTAINING COUNCILMEN: w ~. /~',~J~
CITY CLERK and EA-Offi~io Clerk of t~e
Council of the City of Bakersfield
M~¥¥'O.E~°f' the~i.Oi't~f ~f Bakersfield ... - ~:.,.,,, - :.
APPROVED:
-- CITY ATTORNEY
Affidavit of llosting ( ri ina es
STATE OF CALIFORNIA, ~
County of Kern ~ ss.
MARIAN S. IRVIN, being duly sworn, deposes and says:
That she is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and
that on ............... .M...a..r..c_.h.....l_8. .................................................. ,19...6...9.. she posted on the Bulletin Boaed
at the City Hall, a full, true and correct copy of an ordinance passed by the Council of said City
at a meeting thereof duly held on ............ .M..a_..r..c...h.....1...7. .................................. 19....6...9., which ordinance
was' numbered ............. .1...7...8..1.. ................ New Series, and entitled:
AN ORDINANCE ESTABLISHING AN ADMINISTRATIVE
PROCEDURE ORDINANCE FOR CERTAIN BOARDS AND
COMMISSIONS OF THE CITY OF BAKEltSFIELD,
Subscribed and sworn to before me this
d
...~...9..~.h. day of Mar~h _~[ ~.6...9..~
Notary Public in and for the County of Kern, State of California
WALTER W. SMITH
No'rAcy PUBLIC. CALH'CRNIA
',,~%~..-'.:' ~... '.., ·
WALTER W, SMITH
My Commission Expires June 8, 1969