HomeMy WebLinkAbout38- City Attorney YMfliliY- IMMNY ®Y.. rp
CITY 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/Showcase Theater Challenging the
Denial of Request for Parking for June 2000, by Annie Ramos,
Dept: CITY ATTORNEY Parks, Recreation and Community Services Director and
Directing the City Clerk to Give Notice Thereof.
Date: July 20, 2000
Synopsis of Previous Council action:
07/10/00 - Council voted 5 to 1 to deny appeals and uphold the actions taken by
Director Annie Ramos.
Recommended motion:
Adopt Resolution.
Signature
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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.
/?b(/ 00
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 439 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.
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.
RESOLUTION NO.
RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING THE FINDINGS
OF FACT ON THE APPEAL HEARING OF EZZAT SOLIMAN/SHOWCASE THEATER
CHALLENGING THE DENIAL OF REQUEST FOR PARKING FOR JUNE 2000, BY
ANNIE RAMOS, PARKS, RECREATION AND COMMUNITY SERVICES DIRECTOR
AND DIRECTING THE CITY CLERK TO GIVE NOTICE THEREOF.
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2 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
3 SAN BERNARDINO, AS FOLLOWS:
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5 SECTION 1: The Findings of Fact on the Appeal Hearing of Mr. Ezzat Soliman/Showcase
Theater challenging the denial of request for parking for June 2000, by Annie Ramos, Parks,
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Recreation and Community Services Director(a true and correct copy is attached hereto as Exhibit
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8 "A" and by this reference is incorporated in its entirety herein) are hereby adopted.
9 SECTION 2: The City Clerk is hereby directed to immediately send upon execution a copy
10 of this resolution and the attached Findings of Fact to appellant.Ezzat Soliman/Showcase Theater and
11 to the appellant's attorney of record, Mr. Roger Jon Diamond.
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FrrC[EZZAnj 1
RESOLUTION OF THE CITY OF SAN BERNARDINO ADOPTING THE FINDINGS
OF FACT ON THE APPEAL HEARING OF EZZAT SOLIMAN/SHOWCASE THEATER
CHALLENGING THE DENIAL OF REQUEST FOR PARKING FOR JUNE 2000, BY
ANNIE RAMOS, PARKS, CREATION' COMMUNITY SERVICES DIRECTOR
AND DIRECTING THE CITY CLERK TO GIVE NOTICE THEREOF.
I I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
2 Common Council of the City of San Bernardino at a meeting thereof,
3 held on the day of , 2000, by the following vote,to wit:
4 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
ESTRADA
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6 LIEN
MCGINNIS
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8 SCHNETZ
9 SUAREZ
10 ANDERSON
11 MCCAMMACK
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13 CITY CLERK
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15 The foregoing Resolution is hereby approved this day of 32000.
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18 JUDITH VALLES, Mayor
City of San Bernardino
19 Approved as to form and
20 legal content:
JAMES F. P4NMAN,
21 City Atto
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23 By:
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HTC(EZZAT21 2
1 FINDINGS OF FACT ON APPEAL HEARING
OF EZZAT SOLIMAN/SHOWCASE THEATER
CHALLENGING THE DENIAL OF REQUEST
FOR PARKING FOR JUNE 2000, BY ANNIE RAMOS,
PARKS, RECREATION AND COMMUNITY SERVICES DIRECTOR
4 The above-indicated matter concerning the appeal hearing of Mr. Ezzat Soliman/Showcase
5 Theater(hereinafter collective referred to as appellant) challenging the denial of request for parking
6 for June 2000, by Annie Ramos, Parks, Recreation and Community Services Director, came on for
7 hearing on June 19, 2000 before the Mayor and Common Council of the City of San Bernardino in
8 the City Hall Council Chambers at 300 North "D" Street, San Bernardino, California 92418.
9 Appellant was represented by attorney of record Roger Jon Diamond. The validity of
10 denying the request for parking for June 2000 by Director Annie Ramos was defended by the City
11 Attorney's office,to wit: City Attorney James F. Penman and Deputy City Attorney Jolena Barnes.
12 The Mayor and Common Council heard the testimony of all witnesses presented, the arguments of
13 counsel for both sides, and received into evidence Mr. Diamond's remarks concerning the first
14 reading of an ordinance on the agenda which would implement by legislative Executive Order 2000-
15 2,as well as the Request for Council Action, Staff Report,Executive Order 2000-1,Executive Order
16 2000-2, letter dated June 1,2000 from Roger Jon Diamond to Robert L. Simmons, Sr. Assistant City
17 Attorney, letter dated June 2, 2000 from Roger Jon Diamond to Robert L. Simmons, Sr. Assistant
18 City Attorney, letter dated June 1, 2000 from Annie Ramos, Director of Parks, Recreation and
1 19 Community Services Department to Mr. Ezzat Soliman denying his application request to use the
20 City of San Bernardino Stadium parking lot on various dates in June, 2000, with attachments, letter
21 dated June 2, 2000 from Roger Jon Diamond to Ms. Annie Ramos, Director, letter dated June 9,
22 2000 from Rachel Clark, City Clerk, to Roger Jon Diamond, and copy of ordinance amending
23 Chapter 2.64 of the San Bernardino Municipal Code.
24 The appeal hearing was continued to July 10, 2000 so that the Common Council could read
25 the entire deposition of Mayor Judith Valles(which was introduced in its entirety as evidence)which
26 had been taken by Mr. Diamond in a related federal court lawsuit. On July 10, 2000, Mr. Diamond
27 was once again present with appellant and presented further arguments in support of his appellant's
18 position. The City Attorney's office again defended the denial of request for parking for June 2000,
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I by Director Annie Ramos. After due consideration of arguments, testimony, and all evidence
presented as part of the record by both sides at these two appeal hearings, it is the 5-1 vote of the
Common Council in favor of the following Findings of Fact:
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FINDINGS OF FACT
6 1. The Mayor has the power and authority to issue Executive Orders pursuant to the
7 Charter of the City of San Bernardino;
8 2. Any Executive Order, of the Mayor may be overridden, amended, revised or
9 withdrawn by two-thirds (2/3) vote of the Common Council;
10 >. Executive Order 2000-2 is applied equally to all concerned and limits San Bernardino
11 Baseball Stadium parking to events being held on the Baseball Stadium premises;
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12 4. Appellant has not demonstrated that he is being irreparably harmed by the existence
13 and enforcement of Executive Order 2000-2;
14 5. Appellant has not demonstrated that being unable to use the parking facilities at the
15 Baseball Stadium has resulted in a lack of parking for patrons, thus directly adversely affecting
16 appellant's business operations;
17 6. Appellant has not demonstrated that being unable to use the parking facilities at the
18 Baseball Stadium has resulted in any directly-demonstrated financial loss;
19 7. Appellant has not demonstrated that the City of San Bernardino is required to provide
20 available parking for his business;
21 8. The sole reason for Director Ramos' denial of appellant's request for parking for June
22 2000, as stated in her letter to Mr. Ezzat Soliman dated June 1, 2000, was Executive Order 2000-2;
23 therefore
24 9. The appeal of Ezzat Soliman/Showcase Theater challenging the denial of request for
25 parking for June 2000, by Annie Ramos, Parks, Recreation and Community Services Director, is
26 hereby DENIED.
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28 DATED: July 24, 2000
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1 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.
11 "(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.
16 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 tiles 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
2%' personally delivered or mailed to the petitioner or his attorney of record,
28 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
an
�ernardin
R A C H E L C L A R K
C I T Y C L E R K
August 2, 2000
Mr. Roger Jon Diamond
2115 Main Street
Santa Monica, CA 90405
Re: Our letter dated July 27, 2000 regarding Appeal Hearing - Ezzat
Soliman/Showcase Theater - denial of request for parking for June 2000, by
Annie Ramos, Director of Parks, Recreation and Community Services
Dear Mr. Diamond:
In our letter of July 27, 2000, we erroneously indicated that the resolution noted below
was adopted at the June 19, 2000, meeting of the Mayor and Common Council. In
fact, said resolution was adopted at the Mayor and Council meeting of July 24, 2000.
Resolution No. 2000-226 - Resolution of the City of San Bernardino
adopting the Findings of Fact on the appeal hearing of Ezzat
Soliman/Showcase Theater challenging the denial of request for parking
for June 2000, by Annie Ramos, Parks, Recreation and Community
Services Director and directing the City Clerk to give notice thereof.
If you have any questions regarding this matter, please do not hesitate to contact this
office.
Sa ncerely,
-EL G. CLARK, CMC
City Clerk
cc: City Attorney
E. Soliman
P . O . B O X 1 3 1 8 S A N B E R N A R D I N O , C A 9 2 4 0 2
3 0 0 N O R T H 1) S T R E E T S A N 8 E R N A R D I N O ,
C A L I F O R N I A 9 2 4 1 8 - 0 0 0 1 ( 9 0 9 ) 3 8 4 - 5 0 0 2
( 9 0 9 ) 3 8 4 - 5 1 0 2 F A X - ( 9 0 9 ) 3 8 4 -5 1 5 8
T D D/T T Y - (9 0 9 ) 3 8 4 -5 5 4 0
C I T Y O F
an 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/Showcase Theater - denial of request for
parking for June 2000, by Annie Ramos, Director of Parks, Recreation and
Community Services
Dear Mr. Diamond:
a y
At the meeting of the Mayor and Common Council held on June-9, 2000, the
following resolution was adopted:
Resolution No. 2000-226 - Resolution of the City of San Bernardino
adopting the Findings of Fact on the appeal hearing of Ezzat
Soliman/Showcase Theater challenging the denial of request for parking
for June 2000, by Annie Ramos, Parks, Recreation and Community
Services Director and directing the City Clerk to give notice thereof.
Enclosed is an executed copy of Resolution No. 2000-226 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,
1
RACHEL G. CLARK, CMC
City Clerk
cc: City Attorney
E. Soliman
P . O . B Ox 1 3 1 8 S A N B E R N A R D I N O , CA 9 2 4 0 2
3 0 0 N O R T H D S T R E E T S A N B E R N A R D I N O ,
C A L I F O R N I A 92 4 1 8 - 0 0 0 1 ( 9 0 9 ) 3 8 4 - 5 0 0 2
(9 0 9 ) 3 8 4 - 5 1 02 F A X - ( 9 0 9 ) 3 8 4 -5 1 5 8
T D D /T T Y -( 9 0 9 ) 3 8 4 -5 5 4 0