§ 3-37. Challenge of suspension or revocation notification; determination by hearing officer.

(a)

Challenge of suspension or revocation notification. If a licensee decides to challenge a notice of suspension or revocation, the licensee shall, within ten (10) days after receipt or the posting of such notice, file with the tax collector a notice requesting a hearing pursuant to subsection (b). The licensee shall set forth therein the reasons why the licensee believes the suspension or revocation would be in error.

(b)

Appointment of hearing officer. From time to time, the board of county commissioners shall appoint and retain three (3) or more hearing officers to hear applications for determinations of suspensions and revocations. Each of the hearing officers shall be a licensed attorney with the Florida Bar who has practiced law in the state for at least five (5) years, and who has experience in land use law, real estate law, local governmental law, or administrative law. None of the hearing officers shall be representing clients before any agency of the county government or any agency of any municipality in the county during the period in which they serve as hearing officers. None of the hearing officers or the law firms with which they may be associated shall be representing clients in any judicial or administrative proceeding in which Orange County is an adverse party.

(c)

Terms; compensation. Each hearing officer shall serve for the term of the hearing officer's agreement with the board, may be terminated only for cause, and shall be compensated at a rate or rates to be fixed by the board.

(d)

Ex parte communication.

(1)

No county employee, elected official, or other person who is or may become a party to a proceeding before a hearing officer shall engage in an ex parte communication with the hearing officer. However, the foregoing does not prohibit discussions between the hearing officer and county staff that pertain solely to scheduling and other administrative matters unrelated to the merits of the application.

(2)

If a person engages in an ex parte communication with the hearing officer, the hearing officer shall place on the record of the pending case all ex parte written communications received, all written responses to such communications, a memorandum stating the substance of all oral communications received, and all oral responses made, and shall advise all parties that such matters have been placed on the record. Any party desiring to rebut the ex parte communication shall be entitled to do so, but only if such party requests the opportunity for rebuttal within ten (10) days after notice of such communication. If he or she deems it necessary due to the effect of an ex parte communication received by him, the hearing officer may withdraw from the case.

(3)

Any person who makes an ex parte communication prohibited by subsection 30-37(c)(1), and any hearing officer who fails to place in the record any such communication, is acting in violation of this article and may be assessed a civil penalty not to exceed five hundred dollars ($500.00).

(e)

Prohibited from acting as agent or attorney for subject matter. A hearing officer, and any firm with which he or she is or may become associated, is prohibited for a period of three (3) years after rendition of a decision on a licensee's request from acting as an agent or attorney on any matter involving property which was the subject of the proceeding in which the hearing officer presided. Violations of this subsection shall be prosecuted in the manner provided by general law.

(f)

Hearings.

(1)

All hearings shall be conducted within a reasonable time after appointment of a hearing officer, shall be open to the public, and shall be advertised in a newspaper of general circulation not less than seven (7) days prior to the date of the hearing. Hearing officers shall be appointed to suspension and revocation cases on a rotating basis.

(2)

The participants before the hearing officer shall be Orange County, Orange County's witnesses, the licensee, and the licensee's witnesses, if any.

(3)

Orange County shall present its case within a reasonable period of time, including rebuttal, as shall the licensee and the licensee's witnesses, if any.

(4)

Testimony and evidence shall be limited to matters directly relating to the pending suspension or revocation. Irrelevant, immaterial or unduly repetitious testimony or evidence may be excluded. The hearing officer may take statements from interested members of the public.

(5)

All testimony shall be under oath. The order of presentation of testimony and evidence shall be as follows:

a.

Orange County and its witnesses.

b.

The licensee and the licensee's witnesses, if any.

c.

Rebuttal and summation by Orange County, if any.

d.

Surrebuttal and summation by the licensee, if any.

(6)

To the maximum extent practicable, the hearings and admission of evidence shall be informal. Reasonable cross examination of witnesses shall be permitted, but questioning shall be confined as closely as possible to the scope of direct testimony. The decision shall be supported by competent, substantial evidence. Hearsay evidence shall be admissible, but no decision may be based entirely on hearsay evidence. The hearing officer may call and question witnesses, issue subpoenas, or request additional evidence as he or she deems necessary and appropriate. To that end, if during the hearing the hearing officer believes that any facts, claims, or allegations necessitate review and response by either Orange County or the licensee, or both, then the hearing officer may order the hearing continued until a date certain. The hearing officer shall decide all questions of procedure and standing.

(7)

Orange County shall prove by clear and convincing evidence at the hearing that the violations of article V or specified criminal acts occurred at the establishment during the period of time in question, and that the licensee was culpably responsible because the licensee or an operator of the establishment had actual or implied actual knowledge that the violations or acts were being committed, the violations or acts were fostered or condoned by the licensee or an operator, or that the violations or acts occurred because the licensee or an operator acted recklessly, carelessly, negligently, or with a lack of diligence.

(8)

It is not the intent of this chapter to suspend or revoke a license for conduct or acts containing a significant expressive element. Accordingly, the licensee may raise as an affirmative defense and prove at the hearing that the violations or acts in question contained a significant expressive element.

(9)

The hearing officer shall render a written decision on the suspension or revocation challenge within thirty (30) days after the hearing concludes.

(g)

Filing of decision. The original of the hearing officer's written decision shall be filed with the clerk to the board of county commissioners, and copies shall be mailed to the tax collector, the licensee, and to any interested member of the public who participated at the hearing and requested a copy of the written decision.

(Ord. No. 96-34, § 17, 10-29-96; Ord. No. 97-20, § 10, 12-2-97; Ord. No. 98-28, § 1, 10-20-98; Ord. No. 2002-13, § 12, 9-24-02)