5-1-1: LEGISLATIVE INTENT AND APPLICATION OF TITLE
5-1-3: ADVERSE ACTIONS
5-1-4: NOTICE OF ADVERSE ACTION
5-1-6: LICENSE DENIAL
5-1-7: LICENSE CANCELLATION
5-1-8: LICENSE SUSPENSION
5-1-9: LICENSE REVOCATION
5-1-10: HEARING PROCEDURES
5-1-11: PENALTY; NUISANCE DECLARED
5-1-1: LEGISLATIVE INTENT AND APPLICATION OF TITLE: (1956 3570)
(A) City Council finds that:
(1) Licenses issued pursuant to this Title should be granted and held subject to compliance with the terms and conditions imposed by this Title and any other applicable laws;
(2) The granting and retention of any such license shall be deemed a privilege, and not a right;
(3) No license shall be issued or held contrary to the public health, safety, and welfare interests of the City and its citizens;
(4) It is in the public interest to provide for the denial, cancellation, suspension, and revocation of licenses issued pursuant to this Title in order to protect the health, safety, and welfare of the City and its citizens;
(5) This Title is enacted pursuant to the City’s home-rule authority granted by Article XX, Section 6, of the Colorado Constitution; and
(6) The intent of the City Council in enacting this Title is to protect and promote the health, safety, and welfare interests of the City and its citizens through the licensing and regulation of those activities and businesses determined to pose a significant risk of harm to said interests if unlicensed and unregulated.
(B) The rules of procedure set forth in this Chapter are intended to provide a uniform, consistent, and expeditious method for conducting quasi-judicial hearings held pursuant to this Title and to afford persons due process of law. The Special Permit and License Board may supplement the provisions of this Chapter by adopting further rules of procedure not inconsistent herewith. The rules of procedure set forth in this Chapter apply whenever a hearing is required by any provision of this Title, unless another procedure is specifically required by written agreement, state statute, or other provisions of this Code.
5-1-2: DEFINITIONS: (1956 3563 3570) The following words, terms, and phrases, when used in this Chapter, shall have the following meanings, unless the context clearly indicates otherwise:
“Adverse Action” shall mean the suspension or revocation of an existing license authorized by this Title or the initial denial of an application for a license authorized by this Title.
“Cancellation” shall mean the City’s administrative action of invalidating an issued license for the limited reasons set forth in this Section, which action is not considered to be an adverse action.
“Interested Person” shall mean any person having a legally protected interest under law that is subject to potential injury in fact due to proposed final action pursuant to this Title, or any person defined as "interested" by law, or any person having a right of appeal pursuant to law or this Title. "Interested person" also includes any employee or official charged with the responsibility to issue and enforce the provisions of this Title.
“Revocation” shall mean the City’s action to recall, withdraw or rescind an existing license according to the process afforded by this Title, and it excludes the administrative act of cancellation.
5-1-3: ADVERSE ACTIONS: (3570)
(A) An adverse action may be initiated by any of the following persons or entities:
(1) Any Department Head of the City;
(2) Any employee or official charged with the responsibility to issue and enforce the provisions of this Title.
(B) An adverse action shall be initiated by filing with the City Manager or the City Manager’s designee a written request that the adverse action be taken, which shall include the facts and grounds of the proposed adverse action.
(C) An adverse action may also be taken by the City Manager on his or her own volition.
5-1-4: NOTICE OF ADVERSE ACTION: (1956 3570)
(A) An applicant shall be notified of a denial and a licensee shall be notified of a suspension or revocation of a license and of the grounds for the proposed adverse action in writing.
(B) The notice of the proposed adverse action shall include:
(1) The grounds for proposed adverse action.
(2) A statement that the applicant or licensee, as applicable, may request a hearing before the Special Permit and License Board by filing a request for the same not later than thirty (30) days following the date of service of the notice of the proposed adverse action.
(3) A statement that the proposed adverse action described in the notice will be stayed during the thirty (30) days in which a hearing may be requested or until a hearing has been held and a decision rendered, whichever is later; provided, however, that a finding of immediate undue risk as permitted in Section 5-1-5(C), W.M.C., may result in no stay.
(C) The notice of proposed adverse action may be served on the applicant or licensee, as applicable, by:
(1) Personal service by hand delivery, in which case service shall be deemed complete on the date such service occurs, or
(2) By mailing a copy of the notice of proposed adverse action by first-class mail to the last known address of the applicant or licensee, as applicable, or to the street address of the licensed premises, in which case service shall be deemed complete on the date of mailing. The holder of any license issued pursuant to this Title shall notify the City Clerk of any change of the holder’s address for purposes of notification and service pursuant to this Chapter.
5-1-5: APPEALS: (3570)
(A) The applicant or licensee may appeal the notice of proposed adverse action by filing with the City Clerk in writing a request for a hearing before the Special Permit and License Board within thirty (30) days after the applicant or licensee is notified of the proposed adverse action. The request for hearing shall specify any reasons the requesting party believes the proposed adverse action was not justified. A hearing, when requested, shall be scheduled and held within a reasonable time, and reasonable notice of the hearing shall be given to the licensee or applicant.
(B) For any applicant or licensee who fails to appeal a proposed adverse action by failing to timely file a request for a hearing in the manner provided for in this Section, the proposed adverse action shall immediately take effect, and the applicant or licensee shall thereafter be barred from appealing the adverse action before the Special Permit and License Board. Further, the failure to file a timely appeal of a proposed adverse action pursuant to this Section shall be deemed a failure to exhaust administrative remedies and a bar to judicial review.
(C) Any adverse action pursuant to this Title shall be automatically stayed upon the filing of a timely appeal pursuant to this Section; provided, however, upon a determination in writing by the City Manager that a stay of the adverse action pending the appeal would pose an immediate undue risk to the public health, safety, or welfare, the adverse action shall not be stayed and the licensee shall cease operations pursuant to the license until the appeal is finally resolved. Notice of any such determination shall be given in a manner specified in Section 5-1-4(C), W.M.C., above.
(D) In computing any period of time prescribed by this Section, Saturdays, Sundays, and legal holidays shall be counted as any other day.
(E) Upon completion of a hearing, the Special Permit and License Board shall issue a decision within a reasonable time and according to Section 5-1-10(J) and (K), W.M.C.
5-1-6: LICENSE DENIAL: (1959 3570)
(A) Unless otherwise limited by state law, a license application may be denied by the City Manager or the City Manager’s designee based on the following grounds:
(1) All applicable provisions of the City Code and state law have not been met;
(2) The required fees have not been paid;
(3) The application is incomplete or contains false, misleading or fraudulent statements;
(4) Character of the applicant, based on his/her criminal history, to the extent such character and criminal history is within five (5) years of the date of application and is relevant to the license requested by the applicant;
(5) Nonconformance of the business, premises, building or land use with this Code;
(6) Demand of the business for excessive City services;
(7) Discharge, intent or proposal to discharge wastes to the sanitary sewerage system that will exceed any of the limits set forth in Title VIII, Chapter 10 of this Code;
(8) Prior or ongoing violations of law in connection with the business;
(9) Previous revocation or suspension of a similar license held by the applicant;
(10) Any reason that would justify cancellation, suspension or revocation of a license; or
(11) Any ground provided by ordinance or statute.
5-1-7: LICENSE CANCELLATION: (1959 3570)
(A) Unless otherwise limited by state law, a license may be administratively cancelled by the City Manager or the City Manager’s designee on the following limited grounds:
(1) The license was issued in error;
(2) Upon written request of the licensee;
(3) Upon a determination by the City, confirmed by a site visit to the business address, that the licensee has permanently ceased operation; or
(4) Upon grounds provided by ordinance or statute.
5-1-8: LICENSE SUSPENSION: (1959 3570)
(A) Unless otherwise limited by state law, a license may be suspended on the following grounds:
(1) Upon any grounds that would authorize revocation of a license, except grounds that make revocation mandatory;
(2) When any activity conducted pursuant to such license violates an ordinance or statute;
(3) Upon grounds of repeated violations of this Code by the licensee; or
(4) Upon grounds provided by ordinance or statute.
5-1-9: LICENSE REVOCATION: (1959 3570)
(A) Unless otherwise limited by state law, a license may be revoked on the following grounds:
(1) Fraud or misrepresentation or false statements in the application for the license;
(2) Failure to make timely payment of any fees, charges or penalties imposed pursuant to this Title;
(3) Fraud or misrepresentation in the course of conducting the business;
(4) Conducting the business contrary to the conditions of the license;
(5) Conducting the business in such a manner as to create a public nuisance as defined by ordinance or by statute or in a manner as to constitute a danger to the public health, safety or welfare;
(6) Conviction of any violation of federal, state or municipal law related to the operation of the licensed business;
(7) Repeated violations of one or more City ordinances at the licensee's place of business by the licensee or patrons of the business;
(8) Commission of an act or grounds that would have justified denial of the original application for a license;
(9) The conduct of the licensee's business consistently creates excessive need for City services and causes the City to expend public funds beyond normal requirements to protect the public health, welfare and safety;
(10) The business is of such a nature, or is operated in such a manner, that it is frequented by individuals (a) who consistently disrupt the normal and reasonable peace and tranquility of the neighborhood, or (b) who by intimidation, threat, harassment or other hostile conduct seriously disrupt any other business in the immediate neighborhood of the licensee, thereby causing such business unreasonable economic loss;
(11) The licensee fails to keep and maintain permanent records that, in accordance with accepted accounting practices as determined by the City Finance Director, are necessary for establishing the licensee's tax liability;
(12) Any violation of Title IV, W.M.C., concerning taxes; or
(13) Upon any grounds provided by ordinance or statute.
5-1-10: HEARING PROCEDURES: (1959 2275 3570)
(A) This Section shall apply to any hearing conducted pursuant to this Title.
(B) Any interested person who wishes to be heard at a hearing pursuant to this Title may appear personally or be represented by legal counsel at the hearing.
(C) The hearing shall be conducted by the Special Permit and License Board. In the case of an appeal of an adverse action, the hearing shall be de novo, and the proponent of the adverse action shall have the burden to show, by a preponderance of evidence, that the grounds for the adverse action existed at the time the adverse action was taken. The adverse action may be defended by the City Manager, or the Department Head, employee, or official who initiated the adverse action, who may be represented by the City Attorney.
(D) The Special Permit and License Board may:
(1) Establish by rule a fee for a hearing;
(2) Waive or refund hearing fees upon a showing of undue hardship;
(3) Administer oaths and affirmations;
(4) Issue subpoenas requiring the presence of persons and the production of documents reasonably necessary to the determination of any issue relevant to the hearing. The Chairperson shall sign and issue any such subpoenas. Subpoenas shall be enforced as provided in Section 1-22-5, W.M.C.;
(5) Rule upon offers of proof;
(6) Compel testimony;
(7) Receive evidence;
(8) Determine all relevant issues of material fact and whether the proposed adverse action comports with the requirements of the applicable laws;
(9) Dispose of motions relating to the discovery and production of relevant documents and things for inspection, copying, or photographing;
(10) Regulate the course of the hearing, including setting reasonable time limits on testimony or argument and restricting duplicative or irrelevant evidence or testimony;
(11) Set the time and place for continued hearings;
(12) Fix the time for filing of briefs and other documents;
(13) Direct the parties to appear and confer to consider simplification of issues, admissions of facts or documents to avoid unnecessary proof, and limitation of the number of witnesses;
(14) Issue appropriate orders that control the subsequent course of the proceeding;
(15) Dispose of motions and procedural matters;
(16) Control the decorum and conduct of the proceeding, including the reprimanding and exclusion from the hearing of any person engaging in improper or indecorous conduct; and
(17) Issue general or specific regulations in furtherance of its powers enumerated in this Section and take any other action authorized by ordinance or by rule consistent with law.
(E) All testimony shall be taken under oath or by affirmation.
(F) It shall be unlawful for any person to fail to comply with the orders of the Special Permit and License Board, including the failure to obey any subpoena issued pursuant to this Section.
(G) The proceedings of the hearing shall be recorded through tape recording, stenographic, or other verbatim reproduction, and copies of the transcriptions of the proceedings shall be available, upon payment of the reasonable costs thereof, to the parties to the hearing or any interested person.
(H) At the hearing, each side may present evidence, documentary evidence, and rebuttal evidence, and conduct such cross-examination as the Board may reasonably determine necessary for a full and true disclosure of the facts. The Board may receive all or part of the evidence in written form, if the interests of the parties will not be substantially prejudiced and if the hearing will be expedited thereby. The Board may receive and consider evidence not admissible under the civil rules of evidence if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. The Board may exclude incompetent and unduly repetitious evidence, and may receive documentary evidence in the form of a copy or excerpt if the copy is deemed reliable.
(I) No ex parte material or representation of any kind or any other communication outside the hearing shall be considered by the Board, unless it is fully disclosed on the hearing record and an opportunity is given for comment thereon at the hearing.
(J) The Board may affirm, reverse, or modify, with or without conditions, any adverse action. The Board shall issue, within a reasonable time, a final, written decision with findings of fact and conclusions of law, setting forth the grounds of the decision, based on the evidence presented at the hearing. The Board shall serve the decision on each party to the hearing by mailing it first-class mail to the last address furnished to the City Clerk pursuant to Section 5-1-4, W.M.C., by the party. The decision shall be deemed final and effective as to such party on the date mailed.
(K) The Board’s final decision shall be subject to judicial review pursuant to Colorado Rule of Civil Procedure 106(a)(4). No ground may be presented for judicial review unless it was first presented to the Special Permit and License Board prior to the decision thereof.
5-1-11: PENALTY; NUISANCE DECLARED: (3570)
(A) It is unlawful for any person to violate any of the provisions of this Title. Except as otherwise provided in this Title, any person found guilty of violating any of the provisions of this Title shall, upon conviction thereof, be punished by a fine pursuant to Section 1-8-1, W.M.C. Each day that a violation of any of the provisions of this Title continues to exist shall be deemed a separate and distinct violation.
(B) The conduct of any activity or business in violation of this Title is hereby declared to be a public nuisance, which may be abated pursuant to the provisions for the abatement of nuisance provided for in Chapter 4 of Title VIII of this Code.