§ 1120.

ADMINISTRATIVE HEARINGS

a.

A Permit Holder or an applicant who receives an SFMTA Citation for a violation listed in Section 1118(a), Notice of Nonrenewal under Section 1105(a)(5)(B), Notice of Inactive Status under Section 1103(b)(4), Notice of Summary Suspension under Section 1121, or a non-permit holder who receives a Citation under Section 1119 may request a hearing by submitting to SFMTA a request for hearing, in writing, within 20 business days of the date that the Citation, Notice of Nonrenewal, Notice of Inactive Status under Section 1103(b)(4), or Notice of Summary Suspension was personally delivered or sent by first-class U.S. Mail. A Notice of Nonrenewal, Inactive Status under Section 1103(b)(4), or Summary Suspension, or a Citation issued under Section 1119(a) or for a violation listed under Section 1118(a) shall include:

1.

The name of the person or entity to whom the Notice or Citation is issued,

2.

The disciplinary measure to be imposed, including the length of any suspension and the amount of any administrative fine, or the action taken (summary suspension) or to be taken (nonrenewal or placement on inactive status),

3.

The date by which any administrative fine must be paid, the procedure for making payment, and the consequences of failure to pay the fine,

4.

The provision(s) of this Article upon which the discipline or action is based, including, where applicable, the date and the address or location of the violation, the signature of the individual who issued the Citation, Notice of Nonrenewal, Notice of Inactive Status, or Notice of Summary Suspension, and

5.

Notice of the right to request a hearing, the procedure for requesting a hearing, and notice that failure to request a hearing will result in imposition of the proposed discipline or taking of the proposed action, either of which will be a final action of the SFMTA that is not subject to further administrative or judicial review.

b.

Complaint. Within five business days of receipt of the request for a hearing, the SFMTA must provide any Respondent who received an SFMTA Citation for a violation listed under Section 1118(a), a Citation issued under Section 1119(a), Notice of Nonrenewal under Section 1105(a)(5)(B), Notice of Inactive Status under Section 1103(b)(4), or Notice of Summary Suspension under Section 1121, with a written Complaint consisting of a list of each alleged violation or the basis for nonrenewal, inactive status, or summary suspension, the alleged facts that establish each violation or support nonrenewal, inactive status or summary suspension, and any argument in support of requested disciplinary measure(s), administrative fine(s), or determination(s) made by the SFMTA. The Complaint shall not exceed ten double-spaced pages, excluding exhibits, unless the Hearing Officer approves the filing of a longer Complaint. In addition to the Complaint, the SFMTA may submit proposed findings to the Hearing Officer.

c.

Scheduling an Administrative Hearing. The administrative hearing shall be scheduled no sooner than 30 calendar days after Respondent receives the Notice of Nonrenewal, Notice of Inactive Status, Notice of Summary Suspension or Citation, unless the parties agree to a different schedule. Respondent may request a continuance of the hearing by submitting a written request to the Hearing Officer at least five business days prior to the scheduled hearing. The Hearing Officer must grant or deny the request for continuance within three business days, and must deliver the final decision on the request for continuance to the Respondent by personal deliver or first-class U.S. Mail, and must post the final decision on the SFMTA’s website. No continuance of the administrative hearing may exceed 60 days. If there is a pending criminal proceeding against the Respondent, the Hearing Officer may continue the hearing pending final resolution of the criminal case; provided that such continuance of the hearing shall not affect a summary suspension under Section 1121.

d.

Response to Complaint. No later than ten business days prior to the hearing, the Respondent may provide the SFMTA and the Hearing Officer with a written response to the Complaint, along with any additional information that the Respondent considers relevant to the case. The response shall not exceed ten double-spaced pages, excluding exhibits, unless the Hearing Officer approves the filing of a longer response, and shall include a list of the witnesses, if any, that the Respondent will present at the hearing. In addition to the response, the Respondent may include as a part of the response any proposed findings that the Respondent proposes be adopted by the Hearing Officer.

e.

Presentation of the Case.

1.

The SFMTA shall make the initial presentation of its case at the hearing, and shall have the burden of proving, by a preponderance of the evidence, the facts alleged in the Complaint. The Respondent may present evidence following the SFMTA’s presentation.

2.

Following presentation of evidence, each party shall have at least five minutes to present their rebuttal arguments, if any.

3.

In any hearing, subject to the Hearing Officer’s discretion to limit evidence to evidence that is relevant to the proceeding, either party may present its case by means of oral or documentary evidence, may submit rebuttal evidence, and may conduct cross-examination of adverse witnesses.

f.

Notice of Decision.

1.

The Hearing Officer shall issue a written Notice of Decision within ten business days of the date of the hearing upholding or overturning the Citation, Notice of Nonrenewal under Section 1105(a)(5)(B), Notice of Inactive Status under Section 1103(b)(4), or Notice of Summary Suspension under Section 1121. No later than three business days following issuance of the Hearing Officer’s Notice of Decision, the SFMTA shall post the results of any disciplinary case against a Permit Holder in accordance with Section 1123, referenced by the date of hearing, the name of the Respondent. the type of permit, and the action taken. The Hearing Officer shall send the full text of the Notice of Decision to Respondent by first-class U.S. Mail or shall deliver it to Respondent by personal service no later than the business day following the issuance of the Notice of Decision. The deadline for the issuance of a decision may be extended if the Hearing Officer requests additional evidence from the parties subsequent to the hearing. If additional evidence is submitted, then the decision will be issued within ten business days of the last submittal.

2.

The Hearing Officer’s decision shall take effect on the date that the Notice of Decision is delivered to the Respondent by personal service or is sent to the Respondent by first-class U.S. Mail.

g.

Ex Parte Communications.

1.

No person or agency may communicate directly or indirectly with a Hearing Officer at any time while a case is pending unless there is notice and an opportunity for the other party to participate.

2.

Any correspondence regarding the substance of a case directed to or received by any Hearing Officer shall become part of the case record file and shall be copied to both parties within 48 hours of the communication. If the communication received is oral, the Hearing Officer shall prepare a memorandum for the record stating the substance and the date of the communication, any response made, and the identity of the person from whom the communication was received. If a communication is received within 48 hours of a scheduled hearing, the Hearing Officer must immediately provide copies of the communication to the parties.

3.

Except as permitted by these procedures and any applicable laws and regulations, there shall be no contact between the SFMTA and the Hearing Officer with respect to any pending case. This prohibition does not preclude communications about administrative or procedural matters, or policy matters that do not involve any pending case regarding any individual permit or permit application.

h.

Hearings Open to Public. Hearings under this Section 1120 shall be open to the public, and public comment may be permitted in the sole discretion of the Hearing Officer, but the public may be excluded from all or a portion of the hearing when, in the sole and absolute discretion of the Hearing Officer, exclusion is necessary to protect the privacy of the applicant or a third party. The Hearing Officer may also determine that documents submitted to the Hearing Officer will not be disclosed to the public in order to protect the privacy of the applicant or a third party.

i.

Settlement.

1.

After issuance of an SFMTA Complaint, Notice of Nonrenewal, Inactive Status under Section 1103(b)(4), or Summary Suspension, or a Citation issued under Section 1119(a) or for a violation listed under Section 1118(a), the SFMTA may enter into a settlement with the Respondent or person cited. The parties may reach a settlement before, during, or after the hearing, but may not enter into a settlement after the Hearing Officer issues the Notice of Decision in accordance with subsection (f)(2).

2.

A settlement need not be read into the record of the hearing, or approved by the Hearing Officer, but must be reduced to writing, and signed and dated by the SFMTA and Respondent or his or her legal counsel or other authorized representative.

3.

By entering into a settlement agreement, Respondent waives any right to appeal to the City’s Board of Appeals, and Respondent waives any right to seek judicial review with respect to the subject of the settlement agreement.

4.

No evidence of an offer of settlement or of any statement made during settlement negotiations is admissible in a future proceeding under this Article.

j.

Notices.

1.

Any notice, filing or other communication required to be provided to any person or entity by Sections 1117, 1118, 1119, 1120, 1121 or 1122 shall be delivered by personal delivery or first-class U.S. Mail to the last known address of the intended recipient that is on file with the SFMTA.

2.

If the SFMTA is unable to determine the intended recipient’s mailing address, the local agency shall post the notice in accordance with Section 1123(a), and shall maintain the posting on its website for at least 10 calendar days.

(3) 1 The date of any notice, filing or other communication directed to the SFMTA or a Hearing Officer shall be the date that it is received.

k.

Failure to Appear. Respondent’s failure to appear at a scheduled administrative hearing in person, through a representative, or by written submission, except upon twenty-four (24) hours’ prior notice to the SFMTA, will result in imposition of the proposed discipline or taking of the proposed action, either of which will be a final action of the SFMTA that is not subject to further administrative or judicial review; provided, however, that the Hearing Officer shall have the discretion, upon Respondent’s showing of good cause, to excuse such failure to appear.

CODIFICATION NOTE

1. The designation of this division (j)(3) was corrected by the codifier.

History

(Added as Sec. 1118 by SFMTA Bd. Res. No. 09-077, 5/19/2009; SFMTA Bd. Res. No. 10-149, 11/16/2010; SFMTA Bd. Res. No. 11-017, 2/1/2011; redesignated and amended by SFMTA Bd. Res. No. 12-111 , Ad. 8/21/2012, Eff. 9/21/2012)

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