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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 10. 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 12 'o 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