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HomeMy WebLinkAbout12/01/2009, PH 2 - APPEAL BY JOSE B. VALDIVIA OF TAXI PERMIT DENIAL council M�ft°°;� , o j aGEnoA REpont �N P A CITY OF SAN LUIS O B I S P O FROM: Deborah E. Linden, Chief of Police Prepared By: John Bledsoe, Police Sergeant SUBJECT: APPEAL BY JOSE B. VALDMA OF TAXI PERMIT DENIAL RECOMMENDATION Deny the appeal and uphold the action of the Police Chief to deny Jose B. Valdivia a taxi driver's permit. CLOSED Session Hearing: Mr. Jose B. Valdivia applied to the City for a taxi driver permit, which was denied by Police Chief Deborah Linden pursuant to San Luis Obispo Municipal Code, section 5.20.210 E. Mr. Valdivia has appealed that denial pursuant to 5.20.240. California Government Code, section .54956.7 provides: Whenever a legislative body of a local agency determines that it is necessary to discuss and determine whether an applicant for a license or license renewal, who has a criminal record, is sufficiently rehabilitated to obtain the license, the legislative body may hold a closed session with the applicant and the applicant's attorney, if any, for the purpose of holding the discussion and making the determination. If the legislative body determines, as a result of the closed session, that the issuance or renewal of the license should be denied, the applicant shall be offered the opportunity to withdraw the application. If the applicant withdraws the application, no record shall be kept of the discussions or decisions made at the closed session and all matters relating to the closed session shall be confidential. If the applicant does not withdraw the application, the legislative body shall take action at the public meeting during which the closed session is held or at its next public meeting denying the application for the license but all matters relating to the closed session are confidential and shall not be disclosed without the consent of the applicant, except in an action by an applicant who has been denied a license challenging the denial of the license. Due to the nature of this appeal, Council has met in closed session to discuss Mr. Valdivia's criminal record as it pertains to his application. This closed session was held so that Mr. Valdivia was provided the opportunity to present his case in a private setting. At the conclusion of the closed session, Mr. Valdivia will have an opportunity to withdraw his application, in which case the withdrawal will be noted on the record and there should be no I ki Appeal by Jose B.Valdivia of Taxi Permit Denial Page 2 further discussion. In the event Mr. Valdivia wishes to proceed with his appeal, staff recommends denial of the appeal based upon the confidential background material reviewed by Council in closed session. Mr. Valdivia will be given the opportunity to provide any additional information in an open session that he feels may be relevant to his case or that he wishes to disclose to the public. DISCUSSION Background Pursuant to San Luis Obispo Municipal Code 5.20.210 anyone who desires to drive or operate a taxi cab within the City must first obtain a taxi driver permit from the Police Department. The department provides all applicants with instructions, an application, and a copy of the Municipal Code sections outlining the taxi driver permit process and the requirements that must be met to successfully obtain a permit. A copy of the applicable Municipal Code sections is attached (attachment 1). Once submitted to the Police Department, applications are reviewed and approved or denied by the Chief of Police. On September 16th, 2009, Mr. Jose B. Valdivia submitted a completed taxi permit application to the Police Department. In accordance with the Municipal Code (section 5.20.210 C.6.) applicants are required to disclose all criminal convictions as part of the application process. Mr. Valdivia disclosed certain criminal involvements. As part of the application process, applicants are required to submit a set of fingerprints to the California Department of Justice (DOJ) for a criminal history check. The resulting DOJ report confirmed the information provided by Mr. Valdivia; however, the report listed other involvements, which Mr. Valdivia failed to disclose. All of this information was discussed in closed session with council. Grounds for Permit Denial The municipal code outlines specific provisions where the Chief of Police shall not issue a taxi permit. Two of these provisions are: SLO Municipal Code 5.20.210 E. No permit shall be issued to any of the following persons: 3. Any person who has been convicted of a felony. 10. Any person who has had two or more moving violations as set forth in the Vehicle Code of the state occurring during any 12 month period within the past three years, or three or more total violations during the past three years. 7p� a -� Appeal by Jose B.Valdivia of Taxi Permit Denial Page 3 After reviewing the information provided by Mr. Valdivia in his permit application, his DOJ criminal history information, and his DMV history, Chief Linden denied Mr. Valdivia's request for a taxi permit as required by SLO Municipal Code section 5.20.2 10 E. Additionally, Mr. Valdivia failed fully to disclose his history on the taxi permit application. The permit application clearly states that applicants are required to list all criminal convictions. The Appeal Process Municipal Code 5.20.240 outlines an applicant's right to appeal the Police Chief s decision to Council. This section requires a hearing before Council to consider the evidence submitted and determine whether or not the denial of the permit by the Chief of Police was justified. If Council determines that good cause exists for the denial, then Council "shall affirm the action of the chief of police and order the denial" of the permit. If Council determines that the denial was not justified based on the evidence submitted, then Council shall direct the permit be issued to the applicant. Either way, Council's action is "final and conclusive." Based on the information provided above, and the fact that the basis for Chief Linden's denial of Mr. Valdivia's permit request is clearly based on articulated language in the City's Municipal Code, staff recommends that the Council deny Mr. Valdivia's appeal and affirm the Police Chief s decision. FISCAL IMPACT There is no fiscal impact. ALTERNATIVES Council could determine that the denial was not justified and direct the permit be issued to the applicant. Based on the evidence presented, staff does not recommend issuing the permit since it would be contrary to articulated language in the Municipal Code. ATTACHMENTS 1. Copy of San Luis Obispo Municipal Code 5.20.210—5.20.250. 2. Copy of Mr. Valdivia's appeal GAClosed Session ReportsUose Valdivia Adgenda Report-Abbreviated version.DOC ATTACHMENT 1 5.20.210 Driver's permit required—Application. A. No person shall drive or operate any of the vehicles mentioned in Section 5.20.010 without first obtaining a permit.in writing to do so from the chief of police, or any person designated by the chief. The permit issued will entitle the driver to work for only those employers whose names appear on the permit. A new permit will be required for each subsequent employment; provided, however, that no application shall be necessary other than a ratification of change of employment and proof of a negative test as specified in subsection (C)(4) of this section. B. Any application for a driver's permit shall be accompanied by a fee as set by resolution of the council. The application fee shall be used to defray, in whole or in part, the city and/or state costs of investigation and review of the application. C. Applicants for such permits shall file applications with the chief of police. The application shall contain the following information together with two photographs of the applicant: 1. Name, marital status, age, residence, last previous address, and the length of residence at such last address and in the city; 2. The names and addresses of two residents of the city acquainted with the applicant; 3. Complete fingerprinting of applicant; 4. Proof of a negative test for controlled substances and for alcohol which complies with the requirements set forth in Government Code Section 53075.5; 5. The name of the driver's employer or prospective employer; 6. All criminal convictions. D. The application will not be processed by the chief of police or his or her designee until the application is complete and all of the required information has been submitted. E. No permit shall be issued to any of the following persons: 1. Any person under the age of twenty-one years; 2. Any person not a citizen of the United States or who has not lawfully declared his or her intention to become such; 3. Any person who has been convicted of a felony; 4. Any person who has been convicted of a misdemeanor crime involving any of the following: sexual offense; weapons offense; robbery; manslaughter; moral turpitude; pandering; using, possessing, selling or transporting narcotics; or imparting information for obtaining narcotics; 5. Any person who, within the past seven years from the date of the application, or during the processing of said application, has been convicted of driving a vehicle recklessly or while under the influence of intoxicating liquors or narcotics; 6. Any person not possessing a valid chauffeur's license issued by the state; 7. Any person convicted of violating any provisions of this chapter or any similar ordinance of another public agency; 8. Any person who has made a material misstatement or omission in the permit application; 9. Any person who has had one or more convictions of misdemeanor hit and run within the past three years, or two or more convictions of misdemeanor hit and run within the past seven years; 10. Any person who has had two or more moving violations as set forth in the Vehicle Code of the state occurring during any twelve-month period within the past three years, or three or more total violations during the past three years; 11. Any person who has displayed a pattern of criminal conduct or driving violations that would indicate they would pose a danger to the safety of passengers or other motorists if granted a driver's permit. F. Any person whose application has been denied may appeal that denial in accordance with the provisions set forth in Section 5.20.240. (Ord. 1524 § 8, 2009) ATTACHMENT L 5.20.220 Renewal of driver's permit. A driver's permit shall be renewed annually. The renewal fee shall be set by resolution of the council and shall be used to defray, in whole or in part, the city and/or state costs of investigation of the renewal. Prior to renewal, each driver shall submit proof of a negative test for controlled substances and for alcohol which complies with the requirements set forth in Government Code Section 53075.5. The driver's permit shall be renewed unless any of the grounds for revocation set forth in Section 5.20.230 exist. (Ord. 1298 § 1, 1996) 5.20.230 Revocation of driver's permit. The chief of police may revoke or refuse to renew an operator's license if the driver or applicant has since the granting of his or her permit: A. Been convicted of a felony; B. Been convicted of a misdemeanor crime involving any of the following: sexual offense; weapons offense; robbery; manslaughter; moral turpitude; pandering; using, possessing, selling or transporting narcotics; or imparting information for obtaining narcotics; C. Been convicted of driving recklessly or while under the influence of liquors or narcotics; -D. Had his or her state driver's or chauffeur's license revoked or suspended; E. Had one or more convictions of misdemeanor hit and run within the past three years, or two or more convictions of misdemeanor hit and run, within the past seven years; F. Had two or more moving violations as set forth in the Vehicle Code of the state occurring during any twelve-month period within the past three years, or three or more total violations during the past three years; G. Displayed a pattern of criminal conduct or driving violations that would indicate they pose a danger to the safety of passengers or other motorists; H. Failed to submit proof of a negative test for controlled substances and alcohol as required in Section 5.20.210; I. Been convicted of violating any of the provisions of this chapter. (Ord. 1524 § 9, 2009) 5.20.240 Driver's permit application denial or driver's permit revocation—Appeal. Any person whose application for a driver's permit has been denied or any driver whose permit has been revoked pursuant to Section 5.20.230 by the chief of police may, within ten days of such revocation, file an appeal from such denial or revocation with the council, and a hearing shall be held before the council on such revocation. If, in the opinion of the council, the denial or revocation is not justified from the evidence submitted to it at such hearing, the permit shall be issued or reinstated. If, upon the hearing, it shall appear that good cause exists therefor, the council shall affirm the action of the chief of police and order the denial or permanent revocation of the permit..The action of the council on such a revocation shall be final and conclusive. Pending such hearing, it is unlawful for such person or driver to operate a taxicab within the city. (Ord. 1298 § 1, 1996;prior code § 6240.23) 5.20.245 Reapplication upon positive test for controlled substances and alcohol.. Any person whose permit application is denied or whose permit is revoked based on his or her failure to submit proof of a negative test for controlled substances and alcohol may reapply for a driver's permit after a period of one year from the date of the permit denial or revocation. Evidence of the absence of drug dependency from a substance abuse professional and proof of a negative drug and alcohol test will be required prior to reapplication. (Ord. 1298 § 1, 1996) 5.20.250 Return of driver's permit upon termination of employment. The driver shall notify the chief of police of his or her termination of employment with the listed employer and shall return the driver's permit to the chief of police. The driver's permit shall become null and void upon the driver's termination of employment. (Ord. 1298 § 1, 1996) P(49,,75 ATTACHMENT - Page 1 of 2 1 Firmg Fee: $250.00_ Paid Date Reoeived RECEIVED NIA OCT 0 7 2609 SM LUIS 0131sw SLO CITY CLERK APPEAL TO THE CITY COUNCIL SECTION 1' APPFu 4WMfF0R� T= Nam Marling Address and Code 7D T1 Phan Fax Representative's.Mame Mailing Address and Trp Code TdJe Phone Fax SECTION Z SUBJECT OFAPPEAL 1. In accordance with the procedures set forth in Title 1, Chapter 120 of the San Luis Obispo Municipal Code(copy attached), I hereby appeal the decision of the: 4&A1iI,L o� My 7—Pt1ci P�La.rT �hP('�-rc iso,✓. (Name of Officer, Committee or Commission decision being appealed) 2.. The date the decision beim appealed was rendered: 3. The apprication or project was entitled: 4- 1 discussed the matter with the following City staff member (StaffMerntmei Name and Qepat"ent) (per) 5. Has this matter been the subject of.a previous appeal? If so,when was it heard and by whom: Alo SECTION 3. REASON FOR APPEAL Explain specifically what adiws you are appearing and why you believe the Council should consider your appeal. Indude what evidence you have that supports your appeal. You may attach add�ftnipage,%if necessary This fomr continues on the otfrer side. Page 1 of 3 ATTACHMENT- Page 2 of: -2 Reason for Ajumd continued f �'� JA • ,/Wryex SECTION 4. APPELLANTSRESPONSIBAUTY The San Luis Obispo City Council values public participation in local government and encourages all forms of citizen involvement However,due to real casts associated with City Council consideration of anappeal,inducting public notification,aU.appeals pertaining td.a planning application or project are subject to a ' ich must accompany the appeal form Your.rght to exercise an.appeal comes with certain tesponsibiGties..If you file an appeal, please understand that it must be hearts within 45 days froth filing this form. You will be notified in writing of the exact date your appeal will be heard.before the Council. You or your representative will be expected to attend the public hearing,and to be prepared to make your case. Your testimony is limited to 10 minutes. A continuahoe may be granted under.certain and unusual circumstpnces. If you feel you . need to request a oorrUnuance,:you.must submit your rsgde tin writing to the C .y Cletic Please be advised that iP your request for continuance-ii received after the appeafrs -6 pe to fFtie`public;the Cvealal may not be a61e.to grant-the request for oorrGrwartce_ SubrtuLtrnc1 a reque for cor►tinuairce does hot gua'n3ntee Nrat wr7!be.gpat*d. lhaf anon is at e'* eDori ofthe Ciljr Corarcil [rererbyagree16 appe ajOi Benda iroproer►lat3iire,rio-appear of 01 behalf when said. es scliedi� fior :public hea'rtiN tiefore rhe.City Gvnncil J 9-1-0`� Signature of Appeltatit) (EYafcl EMWpt oM to ire fee: 1i Appeals of Tjee C«rimittee decisi,"are Olio, 2l The above-pamed appellant has ahra�dy p�'��$250 io appeal thl same maser to a CityotTlcPaf orCounct!•ad+rlsorai bodY: ' This item is hereby calendared for Cc: City Attorney City Manager Department Head Adv"Body Chairperson advisory Body Liaison City Clerk(oVnan Page 2 of 3 em I�ll 2 Filing Fee: $250.00* I-aid Date Received RECEIVED OCT 0 7 2009 *REFER TO SECTION 4 San LUIS OBISPO SLO CITY CLERK APPEAL TO THE CITY COUNCIL SECTION 1. APPELLANT INFORMATION Name Mailing Address and Zip Code 'P5-Y7;�o�q,?- 7-Zo,,51 Phone Fax Representative's Name Mailing Address and Zip Code Title Phone Fax SECTION 2 SUBJECT OF APPEAL 1. In accordance with the procedures set forth in Title 1, Chapter 1.20 of the San Luis Obispo Municipal Code (copy attached), I hereby appeal the decision of the: 4A/iAL o�- t -1 T-f%1-4, PCjtM:► /kP0Crcnr-1on/ (Name of Officer, Committee or Commission decision being appealed) 2. The date the decision being appealed was rendered: /0-05-09_ 3. The application or project was entitled: 4. 1 discussed the matter with the following City staff member. 41'.91 � t �J on (Staffers Name and Department) (Date) 5. Has this matter been the subject of a previous appeal? If so, when was it heard and by whom: it o SECTION 3. REASON FOR APPEAL Explain specifically what action/s you are appealing and why you believe the Council should consider your appeal. Include what evidence you have that supports your appeal. You may attach additional pages, if necessary. This form continues on the other side. Page 1 of 3 C Reason for Appeal continued 6.1 G SECTION 4. APPELLANT'S RESPONSIBILITY The San Luis Obispo City Council values public participation in local government and encourages all forms of citizen involvement. However, due to real costs associated with City Council consideration of an appeal, including public notification, all appeals pertaining to a planning application or project are subject to a , hich must accompany the appeal form. Your right to exercise an appeal comes with certain responsibilities. If you file an appeal, please understand that it must be heard within 45 days from filing this form. You will be. notified in writing of the exact date your appeal will be heard before the Council. You or your representative will be expected to attend the public hearing, and to be prepared to make your case. Your testimony is limited to 10 minutes. A continuance may be granted under certain and unusual circumstances. If you feel you need to request a continuance, you must submit your request in writing to the City Clerk. Please be advised that if your request for continuance is received after the appeal is noticed to the public, the Council may not be able to grant the request for continuance. Submitting a request for continuance does not guarantee that it will be granted, that action is at the discretion of the City Council. I hereby agree to appear and/or send a representative to appear on my behalf when said ap I is scheduled for public hearing before the.City Council. Signature of Appellant) (Date) Exceptions to the fee: 1)Appeals of Tree Committee decisions are$100. 2)The above-named appellant has already paid the City$250 to appeal this same matter to a City official or Council advisory body. This item is hereby calendared for / eC/Y1 cc: City Attorney City Manager Department Head -TA%i A)A1-7Z-2 n AdviseFy n City Clerk(original, r_!i-lkr or DL/Cf Page 2 of 3 8109 ASS?, (moi ry �Iiit/siG�re- Chapter 1.20 APPEALS PROCEDURE Sections: 1.20.010 Title. 1.20.020 Right to appeal. 1.20.030 Time within which to file an appeal. 1.20.040 Hearing - Notice. 1.20.050 Hearing -Appellant to show cause-Council's determination final. 1.20.010 Title. This chapter shall be known as the"Appeals Procedure"for the city. (Prior code § 1400) 1.20.020 Right to appeal. A. Except where an appeals procedure is otherwise specifically set forth in this code, any person objecting to the approval, denial, suspension or revocation of a license, permit or entitlement of any nature, the determination or issuance of which is under any of the provisions of this code, or to any administrative decision made by any city official, if the approval, denial, suspension or revocation of such .license, permit or entitlement or the determination of such administrative decision involves the exercise of administrative discretion or personal judgment exercised under any of the provisions of this code, may appeal in writing to the council by filing with the city cleric a written notice of such appeal, stating the specific grounds for the appeal. B. No appeal may be taken to any such administrative decision made by a city official under the provisions of this chapter unless such decision to appeal has been first taken up with the department head concerned, and where an appeals board is empowered to consider interpretation and enforcement questions, unless such decision to appeal has been considered by such appeals board. C. No right of appeal to the council from any administrative decision made by a city official under any of the provisions of this code shall exist when such decision is ministerial and thus does not involve the exercise of administrative discretion or personal judgment exercised under any of the provisions of this code, whether the administrative decision involves the approval, denial, suspension or revocation of a license, permit, entitlement or any other administrative decision. (Ord. 1044§ 1, 1985: prior code§ 1401) 1.20.030 Time within which to file an appeal. The appellant shall file a notice of appeal with the city clerk within ten calendar days after the date upon which the administrative decision appealed from is made. In the event the last day of the filing period falls on a nonbusiness day, the appeal period shall be extended to include the next business day, and this rule shall apply whenever an appeal procedure is specifically set forth elsewhere in this code. (Prior code § 1402) 1.20.040 Hearing- Notice. Upon receipt of the filing of the notice of appeal in its proper form, the city clerk shall place the matter on the council agenda. Except in cases of emergency, when the council may determine the matter immediately, or where state law prescribes a different appeal process, the clerk shall set the matter for hearing at the next reasonably available council meeting, but in no event later than forty-five calendar days after the date of the filing of such notice of appeal with the city cleric. The city cleric shall cause written notice of such hearing to be given to the applicant not less than five business days prior to such hearing, unless such notice is waived in writing by the applicant. (Ord. 1252 § 1, 1994: prior code § 1403) 1.20.050 Hearing -Appellant to show cause-Council's determination final. At such hearing the appellant shall show cause on the grounds specified in the notice of appeal why the action appealed from should not be approved. The council may continue the hearing from time to time, and its findings on the appeal shall be final and conclusive in the matter. (Prior code § 1404) 8109 Page I of 3 Chippendale, Sue From: Cano, Elaina Sent: Wednesday, October 07, 2009 4:01 PM To: Linden, Deborah Cc: Lowell, Jonathan P; Chippendale, Sue Subject: RE: Taxi Driver Appeal Hi, again! I just spoke with Mr. Valdivia and informed him that the appeal will be heard at the December 1St Council meeting. He wasn't jumpin'for joy but nonetheless, he was ok. I will have Sue put it on the 6o day for December 1st for 30 minutes. Please adjust the time if necessary. Thanks, Elaina From:Linden, Deborah Sent: Wednesday, October 07, 2009 3:44 PM To: Cano, Elaina Subject: Re: Taxi Driver Appeal It would be hard because I was the decision maker. Can you please ask him if he would agree to extend the deadline for a week to december 1?We have done this before. From: Cano, Elaina To: Linden, Deborah Sent: Wed Oct 07 15:22:25 2009 Subject: RE: Taxi Driver Appeal Hi Deb, The Muni Code states that all appeals must be heard within 45 days,which in this case would November 21st. Could you delegate this task to someone else? Elaina From: Linden, Deborah Sent: Wednesday, October 07, 2009 2:47 PM To: Cano, Elaina Subject: RE: Taxi Driver Appeal Hi Elaina, I will be out of the country on both November 3 and November 17, so the first possible meeting will be December 1. 10/7/2009 Page 2 of 3 Deb From: Cano, Elaina Sent: Wednesday, October 07, 2009 11:32 AM To: Linden, Deborah Cc: Webster,John; Lawson, Dee; Walter, Jay; Lowell, Jonathan P; Dietrick, Christine; Chippendale, Sue Subject: RE: Taxi Driver Appeal Attached is Mr.Valdivia's appeal. Just to give you a couple of deadlines: Today— Reports due to City Attorney for October 20th Council meeting. October 21St-reports due to the City Attorney for November 3rd Council meeting. November 4th -reports due to the City Attorney for November 17th Council meeting. Let us know which meeting works best for you. Thanks, Elaina From: Linden, Deborah Sent: Wednesday, October 07, 2009 10:58 AM To: Cano, Elaina Cc: Webster, John; Lawson, Dee; Walter, Jay; Lowell, Jonathan P; Dietrick, Christine Subject: RE: Taxi Driver Appeal Thanks. Once he fills out the appeal paperwork, let's collaborate on an Council date since I'll be on vacation for much of November. I'd be the one bringing the appeal to Council since it involves a driver permit, which the PD is in charge of. From: Cano, Elaina Sent: Wednesday, October 07, 2009 10:31 AM To: Linden, Deborah Subject: FW: Taxi Driver Appeal Hi Deb, Sorry, I inadvertently did not email this info to you. Elaina From: Cano, Elaina Sent: Wednesday, October 07, 2009 1029 AM To: Webster, John Cc: Lawson, Dee; Walter, Jay; Lowell, Jonathan P; Dietrick, Christine Subject: Taxi Driver Appeal 10/7/2009 Page 3 of 3 Good Morning! Just wanted to give you a heads up that a gentleman (sorry don't know his name) came in this morning to appeal his denial of a taxi driver permit. He would like to go before Council as soon as. I explained to him that we can not schedule a public hearing until all his paper work is turned in and staff has time to review and write a report. I'm sure he will be back within the next day or two. I'll keep you posted. Elaina 10/7/2009