HomeMy WebLinkAbout37- City Attorney CTFY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: HUSTON T. CARLYLE, JR. Subject: Resolution Adopting the Findings of Fact on the Appeal
Sr. Assistant City Attorney Hearing of Ezzat Soliman Challenging the Validity of Executive
Order 2000-2 and Directing the City Clerk to Give Notice Thereof.
Dept: CITY ATTORNEY
Date: July 20, 2000
Synopsis of Previous Council action:
07/10/00 - Council voted 5 to I to deny appeals and uphold the actions taken by Mayor Valles.
Recommended motion:
Adopt Resolution.
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Signature 9
Contact person: Huston T. Carlyle, Jr. Phone: 5355
Supporting data attached: Resolution& Staff Report Ward: All
FUNDING REQUIREMENTS: Amount: None at this time.
Source:
Finance:
Council Notes:
Agenda Item No.
STAFF REPORT
Council Meeting Date: July 24,2000
TO: Mayor and Common Council
FROM: City Attorney's Office
DATE: July 20, 2000
AGENDA: July 24, 2000
On June 19, 2000, the combined appeal hearings of Mr. Ezzat Soliman/Showcase Theater
were heard. Specifically, at the June 19, 2000 meeting, Agenda Item #39 concerned the appeal
hearing of Mr. Ezzat Soliman challenging the validity of Executive Order 2000-2 and Agenda Item
#40 concerned the appeal hearing of Mr. Ezzat Soliman/Showcase Theater challenging the denial
of request for parking for June 2000, by Annie Ramos, Parks Recreation and Community Services
Director.
For both hearings,the appellants were represented by their attorney of record, Mr. Roger Jon
Diamond. For both hearings, the City's positions were represented by the City Attorney's office.
Mr. Diamond spoke at length on behalf of the appellants. Mr. Soliman answered the questions
which were asked of him. Mr. Diamond also spoke at length on an ordinance on the agenda for a
first reading which would implement by legislation Executive Order 2000-2. Mr. Diamond's
remarks on the ordinance were made part of the record on the appeal hearings at his request. The
City's positions were presented by Deputy City Attorney Jolena Barnes, as well as testimony by
Capt. Michael Billdt of the San Bernardino Police Department. The hearings were continued to the
next regularly scheduled Mayor and Common Council meeting of July 10, 2000 so that the Council
members could read in its entirety the deposition of Mayor Valles which had been taken by Mr.
I, Diamond in a related federal court lawsuit.
At the July 10,2000 meeting,Agenda Items#31 and#32 reflected the prior continued appeal
hearings previously designated as# 39 and#40,respectively. Mr. Diamond was once again present
with the appellants and spoke on behalf of his clients. The City's positions were represented by
City Attorney James F. Penman. After due consideration of arguments,testimony,and all evidence
presented as part of the record by both sides at the two appeal hearings,the Common Council voted
5-1 (Council member Estrada was absent and Council member McGinnis voted"no")to deny both
appeals and to uphold the actions taken by Mayor Valles and Director Annie Ramos.
Findings of Fact have now been prepared to reflect these past actions of the Common
Council, as well as Resolutions adopting said Findings. These are Agenda Items # 37 and #38 for
the July 24, 2000 meeting.
I RESOLUTION NO.
2 RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING THE
FINDINGS OF FACT ON THE APPEAL HEARING OF EZZAT SOLIMAN
3 CHALLENGING THE VALIDITY OF EXECUTIVE ORDER 2000-2 AND
4 DIRECTING THE CITY CLERK TO GIVE NOTICE THEREOF.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO, AS FOLLOWS:
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8 SECTION 1: The Findings of Fact on the Appeal Hearing of Mr. Ezzat Soliman challenging
the validity of Executive Order 2000-2(a true and correct copy is attached hereto as Exhibit"A' and
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10 by this reference is incorporated in its entirety herein)are hereby adopted.
SECTION 2: The City Clerk is hereby directed to immediately send upon execution a copy
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12 of this resolution and the attached Findings of Fact to appellant Ezzat Soliman and to his attorney of
record, Mr. Roger Jon Diamond.
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HTC[=AT 1] 1
I RESOLUTION OF THE CITY OF SAN BERNARDINO' ADOPTING THE
FINDINGS OF FACT ON THE APPEAL HEARING OF EZZAT SOLIMAN
2 CHALLENGING THE VALIDITY OF EXECUTIVE ORDER 2000.2 AND
3 DIRECTING THE CITY CLERK TO GIVE NOTICE THEREOF.
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
5 Common Council of the City of San Bernardino at a meeting thereof,
6 held on the day of 2000, by the following vote, to wit:
7 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
ESTRADA
8
LIEN
9
MCGINNIS
10
SCHNETZ
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SUAREZ
12
ANDERSON
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MCCAN PAACK
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16 CITY CLERK
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18 The foregoing Resolution is hereby approved this day of 52000.
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20
JUDITH VALLES, Mayor
21 City of San Bernardino
22 Approved as to form and
legal content:
23
JAMES F. PENMAN,
24 City Attorn y
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26 By:
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HTC[EZZAT 1] 2
1 FINDINGS OF FACT ON APPEAL HEARING
OF EZZAT SOLIMAN CHALLENGING THE
2 VALIDITY OF EXECUTIVE ORDER 2000-2
The above-indicated matter concerning the appeal hearing of Mr. Ezzat Soliman (appellant)
4 challenging the validity of Executive Order 2000-2 came on for hearing on June 19, 2000 before the
5 Mayor and Common Council of the City of San Bernardino in the City Hall Council Chambers at
6 300 North "D" Street, San Bernardino, California 92418.
7 Appellant was represented by his attorney of record, Mr. Roger Jon Diamond. The validity
8 of Executive Order 2000-2 was defended by the City Attorney's office,to wit: City Attorney James
9 F. Penman and Deputy City Attorney Jolena Barnes. The Mayor and Common Council heard the
10 testimony of all witnesses presented, the arguments of counsel for both sides, and received into
11 evidence Mr. Diamond's remarks concerning the first reading of an ordinance on the agenda which
12 would implement by legislation Executive Order 2000-2, as well as the Request for Council Action,
13 Staff Report, Executive Order 2000-1, Executive Order 2000-2, letter dated June 1, 2000 from
a
14 Roger Jon Diamond to Robert L. Simmons, Sr. Assistant City Attorney, letter dated June 2, 2000
15 from Roger Jon Diamond to Robert L. Simmons, Sr. Assistant City Attorney, letter dated June 7,
16 2000 from Rachel Clark, City Clerk, to Roger Jon Diamond, and copy of ordinance amending
17 Chapter 2.64 of the San Bernardino Municipal Code.
18 The appeal hearing was continued to July 10, 2000 so that the Common Council could read
19 the entire deposition of Mayor Judith Valles(which was introduced in its entirety as evidence)which
20 had been taken by Mr. Diamond in a related federal court lawsuit. On July 10, 2000, Mr. Diamond
21 was once again present with appellant and presented further arguments in support of his client's
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22 position. The City Attorney's office once again defended the validity of Executive Order 2000-2.
23 After due consideration of arguments,testimony, and all evidence presented as part of the record by
24 both sides at these two appeal hearings, it is the 5-1 vote of the Common Council in favor of the
25 following Findings of Fact:
26 FINDINGS OF FACT
27 1. The Mayor has the power and authority to issue Executive Orders pursuant to the
28 Charter of the City of San Bernardino;
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1 2. Any Executive Order of the Mayor may be overridden, amended, revised or
2 withdrawn by two-thirds (2/3) vote of the Common Council;
3. Executive Order 2000-2 is applied equally to all concerned and limits San Bernardino
4 Baseball Stadium parking to events being held on the Baseball Stadium premises;
5 4. Appellant has not demonstrated that he is being irreparably harmed by the existence
6 and enforcement of Executive Order 2000-2;
7 5. Appellant has not demonstrated that being unable to use the parking facilities at the
8 Baseball Stadium has resulted in a lack of parking for patrons, thus directly adversely affecting
9 appellant's business operations;
10 6. Appellant has not demonstrated that being unable to use the parking facilities at the
1 1 Baseball Stadium has resulted in any directly-demonstrated financial loss;
12 7. Appellant has not demonstrated that the City of San Bernardino is required to provide
13 available parking for his business; therefore
14 8. The appeal of Ezzat Soliman challenging the validity of Executive Order 2000-2 is
15 hereby DENIED.
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17 [WATER: July 24, 2000
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NOTICE OF RIGHT TO APPEAL
2 PLEASE TAKE NOTICE that the time within which judicial review of the decision in
3 this matter must be sought is governed by the provisions of Section 1094.6 of the California
4 Code of Civil Procedure, which provides, in part, as follows:
5 "(a)- Judicial review of any decision of a local agency, other
6 than school district, as the term local agency is defined in Section 54951
7 of the Government Code, or of any commission, board, officer or agent
8 thereof, may be had pursuant to Section 1094.5 of this Code only if the
9 petition for Writ of Mandate pursuant to such Section is filed within the
10 time limits specified in this Section.
"(b) Any such petition shall be filed not later than the 90th day
12 following the date on which the decision becomes final . . .
13 "(c) The complete record of the proceedings shall be prepared by the local
14 agency or its commission, board, officer or agent which made the decision and shall be
15 delivered to the petitioner with 90 days after he has filed a written request therefore.
15 The local agency may recover from the petitioner its actual costs for transcribing or
17 otherwise preparing the record. Such record shall include the transcript of the
18 proceedings, all pleadings, all notices and orders, any proposed decision by a hearing
19 officer the final decision, all admitted exhibits, all rejected exhibits in the possession of
20 the local agency or its commission, board, officer or agent, all written evidence, and
21 any other papers in the case.
22 "(d) If the petitioner files a request for the record as specified
23 in subdivision (c) within 10 days after the date of the decision becomes
24 final as provided in subdivision (b), the time within which a petition
25 pursuant to Section 1094.5 may be filed shall be extended to not later
26 than the 30th day following the date on which the record is either
27 personally delivered or mailed to the petitioner or his attorney of record,
23 if he has one."
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1 PLEASE ALSO TAKE NOTICE that Section 1.26.030 of the San Bernardino Municipal
2 Code provides as follows:
3 "1.26.030 Preparation and Payment for Record and Reporter's
4 Transcript.
5 "Upon the filing of a written request for the record of the
6 proceedings or any portion thereof, an amount estimated to cover the
7 actual cost of preparing the record shall be deposited in advance with the
8 City official preparing the record. The record prepared by the City
9 official shall include the transcript of the proceedings, other than a
10 reporter's transcript; all pleadings, notices, orders, final decision,
11 exhibits admitted or rejected, all written evidence, and any other papers
12 in the case. When a hearing has been reported by a court reporter and
13 the petitioner desires a reporter's transcript, the petitioner shall arrange
14 directly with the court reporter for the transcript, pay the reporter
15 directly, and lodge the transcript with the court, serving notice of the
16 lodging to the City Attorney."
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C I T Y O F
5an Bernardino
R A C H E L C L A R K
C I T Y C L E R K
July 27, 2000
Mr. Roger Jon Diamond
2115 Main Street
Santa Monica, CA 90405
Re: Appeal Hearing - Ezzat Soliman - Executive Order 2000-2
Dear Mr. Diamond:
At the meeting of the Mayor and Common Council held on July 24, 2000, the
following resolution was adopted:
Resolution No. 2000-225 - Resolution of the City of San Bernardino
adopting the Findings of Fact on the appeal hearing of Ezzat Soliman
challenging the validity of Executive Order 2000-2 and directing the City
Clerk to give notice thereof.
Enclosed is an executed copy of Resolution No. 2000-225 and a copy of the Findings of
Fact for your use.
If we can be of further assistance, please do not hesitate to contact this office.
Sincerely,
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RACHEL G. CLARK, CMC
City Clerk
cc: City Attorney
E. Soliman
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