HomeMy WebLinkAbout18A - HEARING OFFICER'S DECISIO
REQUEST FOR
COUNCIL ACTION
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CITY COUNCIL MEETING DATE:
CLERK OF COUNCIL USE ONLY:
SEPTEMBER 7, 2004
TITLE:
APPROVED
D As Recommended
D As Amended
0 Ordinance on 151 Reading
0 Ordinance on 2nd Reading
D Implementing Resolution
D Set Public Hearing For
HEARING OFFICER'S DECISION ON
CHAPTER 3 APPEAL
CONTINUED TO
FILE NUMBER
CITY MANAGER
RECOMMENDED ACTION
Adopt hearing officer's proposed decision.
DISCUSSION
La Calle Cuatro de Santa Ana Association, through its President, Elsa
Gomez, has appealed the denial of its application to the City for a
special events permit. A hearing has been held on this appeal under the
procedures set forth in Chapter 3 of the Santa Ana Municipal Code. The
hearing officer, the Honorable Raul Rosenthal, Judge of the Orange County
Superior Court (Retired), has issued a proposed decision denying this
appeal. The proposed decision is attached.
Pursuant to section 3-10 of the Santa Ana Municipal Code, the City Council
must adopt, reject or modify the hearing officer's proposed decision. If
rejected, the Council must either refer the matter back to the hearing
officer with directions, or decide the matter itself after a full review
of the record.
Æ~ ~JJ~
l~ patricia E. Healy
~ Clerk of the Council
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HON. PAUL ROSENTHAL (RET.)
JAMS
500 N. State College Blvd.
Suite 600 .
Orange,C~ 92868
Telephone: (714) 939-1300
Fax: (714) 939-8710
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6 HEARING OFFICER
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THE CITY OF SANTA ANA, CALIFOR..N"IA
HEARING ON DENIAL OF SPECIAL EVENTS PERMIT
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In Re: Appeal of the Denial of a Special
11 Events Permit for Fiestas of the Amëncas by:
JAMS Ref. No.1200035485
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Le Calle Cuatro de Santa Am.
Association,
REPORT AND PROPOSED DECISION OF
HEARING OFFICER
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Applicant! Appellant.
16 By application dated on or about June 8, 2004, Ms. Elsa M. Gomez, President of Le
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17 Calle Cuatro de Santa Ana Association (LACCSA), sought a special events permit for LACCSA
18 from the City of Santa Ana, California (Respondent). By letter of July 19 t 2004, the City
19 Manager, David N. Ream, notified Ms. GOmez that her application was denied, setting forth the
20 grounds therfore. By letter of July 27,2004, Ms. Gomez appealed the denial to the Clerk of the
21 City's Council pursuant to the City's Municipal Code.
22 Thereafter, the undersigned hearing officer was appointed by the Council to hear this
23 matter and to prepare a report and proposed decision to be submitted to the Council in accord
24 with Chapter 3 of the Code. The hearing was held on August 24, 2004, at the facilities of
25 JAMS, 500 N. State College Blvd., Suite 600, Orange, California 92868. Respondent was
26 represented by Michael Vigliotta, Deputy City Attorney. Ms. Gomez, a non-attorney,
27 represented LACCSA.
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REPORT AND PRO~ION OF HEARING OFFICER
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Based on the record herein, the undersigned submits the following summary, discussion
2 and proposed decision.
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BACKGROUND
Since 1988, downtown Santa Ana has been the location for an event known as The
5 Fiestas Patrias (also lmown as Fiestas de Americas). The event is considered to be a celebration
6 ofLarino culture specifically recognizing the independence of several Central American
7 countries, including Mexico, from their historical European governance. The Fiestas Patrias
8 event has included traditional foods, folklorico dancing. musical entertainment, and, for most of
9 its history, the formal EI Grlto ceremony generally recognized throughout Mexico to be a
10 patriotic affirmation of their struggle for independence.' Since the event's inception, the
11 Downtown Santa Ana Business AssóCÏation (DSABA). an unincorporated association of
12 business owners, has sponsored the event, \VÎth The City providing crucial support in planning
13 the event, such as organizing and securing all services for the event, including entertainment,
14 carnival rides, vendor booths, revenue and expense collection/management, trash disposal and
15 bathroom-type facilities. Over the past two years, DSABÄ had hired a professional, outside
16 event management company, All Access Entertaimnent (All Access), to produce the event in
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17 order to help alleviate the amount of time City staff had to spend organizing and running the
18 event. but City staff still spent considerable time and effort in its coordination of activities. In
19 2003, DSABA essentially disbanded, and splinter factions thereof have fonned. According to a
20 City official, different associations. including Appellant, "are vying for economic and political
21 control of the City's downtown area."
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This year, 2004, three different groups have submitted special event pemrit applications
23 to sponsor the Fiesta to take place on the same days, September 9-12,2004, and in the same
24 location of the City. The first application was filed on May 3, 2004, on behalf of Comite Fiestas
25 Patrias de Orange County (Comite); the second application was tiled on May 13, 2004, by All
26 Access; and the third application was filed on June 8, 2004, by LACCSA (Appellant herein).
27 All three applications were distributed to appropriate City agencies, and it was determined that
28 key information was missing from each application. In the circumstances, the City, through
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REPORT AND PROt8J\!310N OF HEARING OFFICER
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1 certain officials, contacted the competing groups to reach a compromise whereby all three could
2 work together to host the event. However, Appellant allegedly declined, and, accordingly, the
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City Manager detennined that it would be in the City's best interest, as well as the parties
4 involved, if the City sponsored the Fiesta for 2004, and recommended such sponsorship to the
5 City Counsel. In that connection, the City would contact the same promoter used in previous
6 years, and all proceeds would be held for the benefit of the downtown area consistent with past
7 practices; thus, the City would be Uensuring that this very popular community event win go
8 forward without potential disruption that could result tram choosing one community sponsor
9 over another."
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HEARING
At the hearing, the involved pårties produced testimony under oath, and presented
12 relevant documentation to support their positions. Two witnesses appeared on behalf of
13 Appellant, viz., Jose Ortiz, business owner and treasurer for LACCSA and Esther Andrade,
14 Secretary for Ms. Gomez. Mr. Ortiz testified concerning meetings with representatives of the
15 associations seeking special events pennits to sponsor the Fiesta. He stated that there was some
16 agreement among the groups to work out some arrangement between them for running the
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17 Fiesta. However, he could not recall the details. Ms. Andrade testified in relation to a City
18 official's visit to Ms. Gomez' office to talk ofworlång out an agreement between the various
19 associations.
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Two witnesses also testified on behalf of the City. Matthew T. Lamb is employed by tho
21 City as the Downtown Development Manger for the Community Development Agency, and has
22 been so employed since September 17, 2001. His duties include responsibility for the
23 "downtown" area of the City, including acting as Executive Director of the former a'BID
24 advisory body" known as DSABA. His testimony was consistent with his submitted written
2S declaration and fonned the bases ofmuch of the information covered in the background portion
26 of this report. Officer Mike McCoy also testified and submitted a written declaration on behalf
27 of the City. Officer McCoy is employed by the City as a Police Comnumity Services Specialist,
28 and has been so employed since October 13, 1980. His duties include responsibility for the
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REPORT AND PR.O~SION Of" HEARING OFFICER
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1 pr-ocessing and issuing of special event pennits. Some of his statements are also incorporated in
2 the background portion of this decision. He avers that the special events pennit process is used
3 ''to insure a safe event and to prevent conflicts with other special events." Officer McCoy
4 affirmed that Appellant. subsequent to the initial denial of its pennit, did attempt to rectify SOme
5 of the deficiencies in its application.
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In a letter dated July 2, 2004, by Ms. Gomez to the City Manager, prior to the latter's
denial of the permit, Ms. Gomez stated, as pertinent:
As you know the association has had contact with AU Access
Entertainment and the Comite Fiestas Patrias de Orange County the other
two applicants for the same event. A verbal agreement was reached with
both entities. Comite FiestasPatrias is to amend it's (sic] permit request
ana not include a festiva1. The. association will make accoÍnmodations to
Comite Fiestas Patrias de Oræ1ge County in the Fiestas de las Americas
event. In regards to All Access Entertairunent, the association will grant a
license agreement for this year's event to All Access Entertainment to
produce the event.
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Despite the assertions of an oral agreement between Appellant and the other similar
groups, there was no written declaration nOr any testimony by representatives of the other
groups to corroborate Appellant's assertions.
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ARGUMENTS
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In its pre~hearing brief, Appellant argues that the City Manager "failed to exercise sound
reasonable and legal decision-making skills in the handling of LACeS A's application for a
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Special Event Permit." In that regard, it contends that it should have been informed of
deficiencies in its application and given the time to rectify the problem; that, since Respondent
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has not issued any permit for the event prior to accepting Appellant's application, the latter has a
legal right to apply and have its applica.tion processed; and that Appellant is entitled to a fair
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process. It also argues that Respondent has abused its discretion and "has placed itself in a
conflict of interest" situation. In its Appeal dated July 27, 2004, AppeUànt also contends that
the denial of its requested pennit application was not within the required IS-day time period as
set forth in Section 10-22.7 of the Code.
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Conversely, Respondent contends that its decision to deny Appellanfs permit
application must be upheld since the City is hosting the Fiestas event on the same days and in
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1ŒPORT A.""ID PRo18MI0N OF HEhR1NG OFFICER
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1 the same location as proposed by Appellant. Also, it asserts that, in light of three competing
2 permit applications, and the lack of wil1ingness by Appellant to work with other groups to host
3 the event together, the City decided to host the event itself; accordingly, the pending
4 applications became '~ootn because the City, utilizing its implied police powers, "becomes the
5 default 'first in line.'" In relation to Appellant's citing Section 10-22.7 of the Code,
6 Respondent argues that the Code does not provide any consequence for fai1ing to act within 15
7 days. Further, Respondent contends that the language utilized in the Code "should be read as
8 directory and not- mandatory," citing In re C.T. (2002) 100 Cal.App.4ch 101, 111.
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mSCUSSION AND~CLUSIO~
The undersigned hearing officer has considered all of the evidence ofrecord and
11 arguments made by the parties. The City's Code provides a process by which an individual may
12 apply for a pennit to conduct special events, subject to meeting specified conditions. Further,
13 Chapter 3, Section 3-5 of the Code provides that the burden of proof in this type of proceeding
14 "is on the applicant/appellant... to prove that he is entitled to that for which he is applying.. .or
15 that the detennination...is unreasonable, erroneous or clearly abusive of discretion."
As noted, DSABA has previously sponsored the Fiesta event, with the City's
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17 participation and, over the past tWo years, DSABA hired a professional, All Access, to produce
18 the event to reduce the City's participation to some extent. In 2003, DSABA disbanded,
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19 resulting in the formation of three groups. including Appellant herein. Two of those groups
20 filed for special events pennits to sponsor the Fiesta before Appellant's application was filed,
21 thus gÍ"áng the two previous applications priority consideration. As the City Manager stated in
22 his July 19, 2004, letter of denial, all three applications were incomplete and, therefore, no
23 permit has been issued or denied as of the date of the letter. However, even if all applications
24 were cOITected, LACCSA's application "would still be third in linen and subject to denial.
25 However, in light of the three competing applications, and the conflicts between the competing
26 groups possibly adversely impacting the businesses in the proposed downtown location of the
27 Fies~ the City Manager has opted for a recommendation to the City Council that the City
28 sponsor the event for 2004. In relation thereto, he stated:
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REPORT AND PR.OP~lON OF HEARtNG OFFICER.
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- The City will contract with the same promoter used in previous
years, and all net proceeds will be held for the benefit of the downtown
area consistent with past practices. In this way, the City will be ensuring
that this very popular community event win go fOIWard without potential
disruption that could result from choosing One conunwùty sponsor over
another.
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The City Manager also indicated that similar denial notices had been sent to the other
6 applicants. Further, while Appellant contends that it has reached a verbal agreement with the
other permit applicants for the same event, it failed to produce probative evidence to that effect.
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In the circumstances presented, it is clear that the denial ofLACCSA's application has
been in the best interest of the City, as well as the business community located in the downtown
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] 0 area of the City. As. such, the undersi~ed cannot find that the City's denial. of Appellant's
special events application was "unrea$onable, erroneous or clearly abusive of discretion."
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Similarly, it is also apparent that, in these circumstances, Appellant has not demonstrated, by
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convincing evidence, that it is entitled to the pennit wmch it seeks.
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As for Appellant's statement that the City Manager did not act within the time period
prescribed in the relevant section of the Code, Appellant offers no specified solution.
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Presumably, that statement is offered as one of the elements of its overall request for approval of
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its application for a fpennit. The undersigned agrees with the City's positio~ that, since there is
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no prescribed consequence for failure to act within a specified time period, the language should
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be construed as "directory" rather than "mandatory." This is especially true where the City has
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20 the implied authority to grant extensions, as done here, to permit an opportunity to rectify
deficiencies, thus extending the time period for definitive action.
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R£pOltT AND PRO~ION OF HE.ARlNG OFFICER
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PROPOSED DECISION
In the circwnstances, the undersigned hearing officer recommends that the City Council
3 affirm the de:nial by the City Manager1 in relation to the application dated June 8, 20041 by
4 LACCSA, for a special events pennit.
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Hon. Paul Rosenthal (Ret.)
Hearing Officer
7 DATED: August 30, 2004
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REPORT N4D PRotaAiSSION OF HE.AR1NG OFFICER
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PROOF OF SERVICE BY FACSIMILE
(C.C.P. § 1012.5 et sea.)
I, Lori Varisco, not a party to the within action hereby declare that on August 30, 2004, I
setVed the following document: REPORT AND PROPOSED DECISION OF HEARING
OFFICER, On the parties listed below regarding the within action, In Re: Appeal of Special
Events Permit Application for Fiestas of the Americas vg. (JAMS Reference No. 1200035485),
by FACSIMILE trom the offices of JAl\1S located at 500 N. State College Blvd., Suite 600,
Orange, CA 92868, (714)939-1300, FACSIMILE (714)939-0869.
Elsa Gomez
La Calle Cuatro De Santa Ana Association
110 liB" E. 4th St.
Suite 102
Santa Ana, CA 92701
Tel: 714-543..5386
Fax: 714-245-2.422
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Mike Vigliotta Esq.
City of Santa Ana
20 Civic Center Plaza M-29
PO Box 1988 M-29
Santa Ana, CA 92702
Tel: 714-647..5201
Fax: 714-647-6515
Matthew T. Lamb
City of Santa Ana
Downtown Development Division
305 E.' Fourth St., Suite 201
Santa Ana, CA 92701
Tel: 714-565-4002
Fax: 714-647-6939
I declare under penalty of perjury the foregoing to be ~e and correct. Executed at
Orange, California on August 30, 2004. " -
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