SR-7-A (38)
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CA:RMM:bencke9/adv
City Council Meeting 9-15-92
SEP 1 ~ '992
Santa Monica, California
STAFF REPORT
TO:
Mayor and city Council
FROM:
City Attorney
SUBJECT:
Appeal of business license denial,
David Beneke, Case No. HE 92-2
A. DENIAL AND HEARING
Appellant David Bencke was cited by a City inspector in late
1991 for conducting a mail order business without a license.
Thereafter, Beneke met with City representatives and argued that
he already had a business license for a travel agency, and did
not need a separate business license to sell mail order goods.
He was informed that he needed the separate license.
Beneke then filed a business license application in December
1991 to sell f1general merchandise" by mail order.
On his
application, Beneke inserted the fOllowing statement:
"This
application
is
being
filed
with
all
reservation of rights to contest ies necessity and
is not an admission.1I
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7-P,
St.~ 1 J '991
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The Licensing Department denied Beneke's application as
improper because of this clause. Beneke appealed the denial.
B. DECISION OF HEARING EXAMINER
Beneke's appeal was heard by the City Hearing Examiner. A
full evidentiary hearing was held, at which Beneke was the sole
witness. Beneke testified that he inserted the ureservation of
rightst1 clause because his lawyer believed the license was
unnecessary.
The Hearing Examiner noted that under Municipal Code section
6006, a separate license is needed for each business. Thus, he
held, the reservation of rights clause was improper and the City
was justified in denying the application.
RECOMMENDATION
The appeal should be denied.
.
PREPARED BY: Robert M. Myers, City Attorney
Adam Radinsky, Deputy City Attorney
bencke9jadv
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CI]1Y OF
S AN'T.1\.
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CALIFORNIA
MONICA
Cln HALL. 39.H1975
NOTICE OF APPEAL FROM DECISION OF HEARING EX~~INER
The undersigned does hereby appeal to the City Council
from the decision of the Hearing Examiner made in HE- 92-2
This notice of appeal 1S requested by:
Dav,d Benc;ke
(Kame of Person)
Law Off1ces of Thomas A. N~tt1
(~arne of Business or Other Entity>
1255 Llncoln Blvd., Third Floor
(Mal1ing Address)
Santa Monlca
(CI ty )
rA
(State)
';10401 ,
(Zlp Code)
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\iln'
":\Q'1-I'i24 _
T;c.~etlhonC:' -Nur.-,~er)
The right to appeal to the City Council is conditioned
upon the payment of fees to the City of Santa Monica in an
amount sufficient to recover the cost to the Clty incurred in
preparation of the record and transcript of the proceedings
before the hearing exarriner. An estimate of the cost of the
preparation of the record and transcript will be mailed to
you within 5 days. Failure to deposit fees in the time set
forth in the notlce of estimate will result in the dismissal
of your appeal.
()~~
Signature of Appellant
FIle th1S form with:
City Clerk
Sdn&& ~on~ca C1ty Hall
1685 Main Street
Santa Monica, CA 90401
(CIty Clerk will transn1t form to City Attorne~)
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SANTA MONICA
CALIFORNIA
OFFICE OF THE en\ "TTORr\EY
NOTICE OF DECISION OF HEARING
TO: ......ADAM RADINSKY,
Deputy City Attorney
The accompanying decision of the hearing examiner has
been rendered in HE- 92-2 .
The decision of the hearing examiner is final unless
a notice of appeal is filed with the City Clerk within 10
days of the date of mailing of this decision. Appeal forms
may be obtained in the office of the City Clerk, 1685 Main
Street, Santa Monica, California.
An appeal does not stay the decision of the hearing
examiner. The decision of the hearing examiner is effective
immediately.
MICHAEL E. WINE
HEARING EXAMINER
DATE MAILED: APRIL 10, 1992
CITY HALL. 1685 M"J.... STREET, SA'..:T A MO~lCA, CALlFORSIA 90401.n9S
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CITY OF SANTA MONICA
DECISION OF HEARING EXAMINER
1685 MAIN STREET, SANTA MONICA, CA 90401
In re ) NO. HE 92-2
the Appeal of )
) APPEAL FROM DENIAL
) OF BUSINESS LICENSE
DAVID BENeKE, ) APPLICATION
)
Appellant, )
)
vs. )
)
CITY OF SANTA MONICA, )
)
Respondent. )
)
)
PROCEDURAL HISTORY
On or about December 7, 1991, Appellant DAVID BENeKE
(hereafter "APPELLANT") applied for a business license (Exhibit 1)
with the city of Santa Monica (hereafter nCITY"). This application
was denied by the CITY in a letter dated January 15, 1992, signed
by DEBBIE SOWERS, License and Permit Supervisor because APPELLANT
had placed a "reservation of rights" in his application (Exhibit 2,
page 2). Thereafter, APPELLANT on January 21,1992 filed a Request
for Hearing by Hearing Examiner to review this denial (Exhibit 2,
page 1).
Subsequently, on January 27, 1992, the CITY sent by
facsimile transmission a Notice of Action to APPELLANT through his
attorney, denying APPELLANT's business license application, and
citing as authority therefor Santa Monica Municipal Code Sections
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6024, 33940 and 4231; Business and Professions Code Sections 17200
and 17500; and civil Code Section 1770 (e) (Exhibit 3). Notice of
Hearing setting a hearing date in this matter for February 19, 1992
was mailed on January 28, 1992 (Exhibit 4). Subsequently, a Notice
of Continued Hearing setting a hearing date of March 25, 1992 was
mailed on February 25, 1992 (Exhibit 5). A hearing was held on
March 25, 1992 in Santa Monica, California. ADAM RADINSKY appeared
as attorney for the CITY, and THOMAS NITTI appeared as attorney for
APPELLANT.
ISSUECS) PRESENTED
Is the denial of APPELLANT's business license
application appropriate?
SUMMARY OF EVIDENCE
other than the Exhibits referred to above, the only other
evidence offered into the record was the testimony of APPELLANT,
who testified under oath.
Prior to APPELLANT testifying, APPELLANT's motion to dismiss
the action taken pursuant to Santa Monica Municipal Code Section
6024, (all references are to the Santa Monica Municipal Code unless
otherwise noted) was granted on the ground that such section by its
own terms is limited to license revocations or suspensions, and is
not applicable to license denials. Thereafter, the parties spent
most of the hearing arguing various other jurisdictional and
procedural points raised by APPELLANT which were denied without
prejudice to APPELLANT's ability to raise the same in closing.
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APPELLANT was called by the CITY pursuant to Evidence Code
section 776 and testified that he filed the original of Exhibit 1
with the CITY; and that it was his writing and his signature
contained thereon. Objections to questions relating to the alleged
operation of a parking meter cover business by APPELLANT were
sustained on Fifth Amendment and Evidence Code Section 940 grounds.
APPELLANT further testified that he lives at 1323 12th street;
that he recalled an inspector from the CITY giving him a document
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toward the end of last year; that the document was a citation which
said he violated section 6001; that the inspector did not explain
how he was in violation; and that he had no discussions with the
inspector regarding the violation.
Additionally, APPELLANT stated he had previously met with
representatives of the CITY regarding violations of the law; that
he filed a business license application so he could conduct a mail
order business; and that he had been cited for conducting a
business without a license under section 6001.
APPELLANT also testified that he intended to sell computers,
monitors, modems, software, books and travel-related supplies by
mail. He stated he has a business license for a travel agency in
Santa Monica. With respect to the following language contained in
Exhibi t 1, that is "THIS APPLICATION IS BEING FILED WITH ALL
RESERVATION OF ALL RIGHTS TO CONTEST IT'S (sic) NECESSITY, UNDER
PROTEST, AND IS NOT AN ADMISSION," APPELLANT stated he filled the
application out at his attorney's direction. At this point in the
hearing, Mr. Nitti stated that what this language meant was: nis
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not an admission" referred to the CITY's use of the application as
an admission by APPELLANT in any criminal or civil proceeding; and
that APPELLANT reserved his rights to contest the necessity of this
license application because he already had a business license and
could conduct additional business thereunder which was ancillary to
his licensed business.
APPELLANT then testified that he attended a meeting late last
year within one or two days before being cited, and that his
current application was filed the same day he was cited. On
examination by Mr. NITTI, APPELLANT stated he had picked up the
application the day before he was cited. Finally, in response to
an additional question from Mr. RADINSKY, APPELLANT stated he had
filed the application because of the meeting.
Mr. NITTI then took APPELLANT on direct examination, wherein
APPELLANT stated he submitted Exhibit 1 to the CITY on December 7,
1992; that it had "Mail Order" written on it as the type of
business; that the application was not accepted at the window until
APPELLANT added the words "General Merchandise" thereto; that no
one asked him nor did he tell anyone what he intended to sell; and
that he was and remains ready to tender the applicable business
license fees for this business. On cross-examination, APPELLANT
stated he never discussed with anyone from the CITY what he
intended to sell.
At this point, both sides rested.
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EVALUATION OF THE EVIDENCE
Initially, it should be pointed out that there is absolutely
no evidence in the record to support any violation by APPELLANT of
Sections 3934 D or 4231, Sections 1770 (e) of the civil Code, or
Sections 17200 and/or 17500 of the Business and Professions Code.
As such, on the record before the Hearing Examiner neither those
sections nor Section 6024 affords the CITY a basis for denying
APPELLANT's application of December 7, 1991. Having stated that
proposition, however, it does not necessarily follow that APPELLANT
is entitled to the issuance of a license based on that application.
wi th respect to APPELLANT's pending application, APPELLANT
makes several arguments as to why the same should have been granted
in the first instance, or why the Hearing Examiner cannot deny the
same at this instant. Each argument will be dealt with separately.
A. The issuance of a business license
is not ministerial.
Section 6003 (a) states that the licenses required by the
Municipal Code shall be issued by the Director of Finance. From
this language, APPELLANT apparently divines that the action of the
Director is ministerial affording no discretion to him/her,
assuming that the application is in proper form.
This is an unreasonable interpretation of this language, and
would render meaningless the appeal rights granted to applicants
whose applications have ben denied, and the discretion conferred by
the Code to the Hearing Examiner in ruling on such appeals (See
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Sections 6070 (a] and 6072 (bJ). A more reasonable interpretation
of this language is that the Director of Finance shall be the
designated CITY official to issue licenses if the issuance thereof
under the circumstances of the particular application would be
warranted. APPELLANT's contention in this regard is deemed to be
without merit.
B. Reliance by the CITY OD the oriainal around
tor the denial of ~PPELLANT's aDDlication
miqht violation due process.
APPELLANT contends that once the CITY amended its Notice of
Action (Exhibit 3) to state new grounds for the denial, it could
not at the hearing rely on the original ground for such denial
(Exhibit 2) for to do so would violate APPELLANT's due process
rights since he did not conduct discovery on the issue of the
CITY's policy on "reservation of rights" in reliance on the CITY's
issuance of the new Notice of Action and the grounds stated therein
(Exhibit 3). At first blush, this contention would appear to have
some merit. However, in light of the disposition below, the
Hearing Examiner need not decide this issue.
C. The &oplication of December 7, 1991
is properly before the Hearinq Examiner.
Regardless of whether or not the Hearing Examiner may consider
the original ground per se of the CITY's denial of APPELLANT's
application (see discussion under point B, supra), the Hearing
Examiner properly has before him APPELLANT's December 7, 1991
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application.
It was admitted into the record (Exhibit 1), and
without consideration of the same there would be nothing pending
for the Hearing Examiner to rule upon.
D. section 60728 is the standard to be
a~Dlied bv the Hearina Examiner.
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Section 6072B (entitled "Standards") states that II (t)he
Hearing Examiner may .
. .
deny a license . . . whenever, in the
reasonable judgment of the Hearing Examiner, the
. .
. denial is
in accordance with any applicable law. JI APPELLANT argues that
since the CITY did not rely on this Section in its Notice of
Action, the Hearing Examiner may not apply this standard in the
current matter. This argument must fail.
APPELLANT cited Section 6070 as the basis for his appeal.
(Exhibit 2) APPELLANTls attorney at the hearing demonstrated a
thorough and exhaustive familiarity with the regulatory scheme in
the Code dealing with business license applications, denials,
appeals, and hearings. Section 6072B is merely a statement of the
substantive framework under which the Hearing Examiner is
coustrained to act in appeals such as APPELLANTls, or any appeal
brought pursuant to the regulatory scheme. It is not a basis for
the action taken by the CITY, and failure to state this Section in
the Notice of Action cannot in the abstract be said to be
prejudicial to this APPELLANT or any particular appellant.
* * * *
In applying section 6072B, the Hearing Examiner notes that
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Section 6006 requires a separate business license for each business
activity which comes within any of the business classifications
described in Chapter lB of Article VI (commencing with Section
6050).
APPELLANT holds a valid business license for a travel agency
(presumably a service';' business under Section 6052L). He now wishes
to sell general merchandise by mail order (Section 6052K). The
mandate of section 6006 requires APPEl.I,ANT to hold two separate
licenses.
APPELLANT argues additionally that for the Hearing Examiner to
consider denying the December 7, 1991 application under section
6072B without giving APPELLANT an opportunity to discover from the
CITY what ancillary activity by administrative practice is
permi tted under his existing license violates his due process
rights. He cites as an example that barber shops are permitted to
sell combs as activity ancillary to the provision of barber
services without obtaining a separate sales license. However
appealing that argument might appear at first, it stretches
credulity to the breaking point to assert that selling computers,
monitors, modems and software can in any sense be said to be
ancillary to the services provided by a travel agency. This
argument is therefore meritless.
That being the case and with the foregoing in mind, the
Hearing Examiner now considers APPELLANT's application to determine
in his reasonable judgment whether the denial is in accordance with
any applicable law.
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The evidence establishes that the application was made by
APPELLANT with a reservation of all rights to contest the necessity
of such an application. According to the legal analysis of counsel
for APPELLANT, this was done because APPELLANT had an existing
license and counsel had opined that he could conduct ancillary
ac1.ivity under such a license without a new application. The
evidence further establishes that the activity APPELLANT
contemplated (mail order sales of computers, monitors, modems,
software) can in no reasonable way be construed to be ancillary to
the business of a travel agency. That being the case, under
Section 6006, APPELLANT was required to file a new application, and
his reservation of rights under the theory that computer sales was
ancillary to the travel business was improper. As such, the denial
of APPELLANT's December 7, 1991 application is in accordance with
the provisions of Section 6006.
FINDINGS OF FACT
1. On December 7, 1991, APPELLANT held a business license as
a travel agency in the city of Santa Monica.
2. On December 7, 1991 APPELLANT filed an application for a
business license for "Mail Order-General Merchandise," reserving
his rights to contest the necessity of any such new license.
3. APPELLANT intended to sell computers, monitors, modems,
software and also books and travel related supplies in connection
with such mail order business.
4. Any Finding of Fact which is more appropriately a
Conclusion of Law is deemed to be a Conclusion of Law.
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CONCLUSIONS OF LAW
1. section 6006 requires separate business licenses for each
business activity which comes within any ,of the business
classifications described in Chapter lB of Articles VI (commencing
with section 6050) of the Santa Monica Municipal Code.
2. Travel agencies are subject to licensure under section
6052L.
3. Hail order sales of general merchandise are subject to
licensure under Section 6052K.
4. The sale of computers, monitors, modems and software is
not ancillary to the service provided by a travel agency.
5. It was necessary for APPELLANT to hold two separate
licenses to operate as a travel agency and to sell computers,
monitors, modems and software in the City of Santa Monica.
6. APPELLANT's reservation of rights and contest of the
necessity of his December 7, 1991 application was improper.
7. Any Conclusion of Law which is more' appropriately a
Finding of Fact is deemed to be a Finding of Fact.
DECISION
APPELLANT's December 7, 1991 business license application is
denied.
Dated: April 8, 1992
"-Jt~~~o__
MICHAEL E. WI~E, Hearing Examiner
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EXHIBIT LIST
Denial of
Business License Application
(Nature of Hearing)
.,March 25. 1992
(Date of Hearing)
HE-92-2
(File NO.)
DAVID BENCKE
(Appellant)
MICHAEL E. WINE
(Hearing Examiner)
Exhibit Description of No. of Offered Objection Ruling
No. Document Pages by
1 Business License 1 City
Application
2 Request for Hearing 2 City
3 Notice of Action 4 City
4 Notice of Hearing 2 City
5 Notice of Hearing 2 City
(Continuance)
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1 FROOF OF SERVICE BY MAIL
2 I am employed in the County of Los Angeles, state of
3 California, and I am over the age of eighteen years and not a party
4 to this action.
5 My business address is 3218 East Holt Avenue, suite 100, West
6 Covina, CA 91791.
7 On April 10, 1992, I served the foregoing documents described
8 as APPEAL FROM DENIAL OF BUSINESS LICENSE APPLICATION on the
9 interested parties in said action by placing a true and correct
10 copy thereof enclosed in a sealed envelope with first class postage
11 thereon fully prepaid, in the united states mail addressed as
12 follows:
13
14
Mr. Adam Radinsky
Deputy city Attorney
CITY OF SANTA MONICA
1685 Main Street
santa Monica, CA 90401
Hr. Tom Nitti
Attorney at Law
1255 Lincoln Boulevard
Third Floor
Santa Monica, CA 90401
15
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17 I am readily familiar with the office practice of collection
18 and processing correspondence for mailing. Said correspondence is
19 deposited with u.S. Postal service on that same day in the ordinary
20 course of business. I am aware that on motion of party served,
21 service is presumed invalid if postal cancellation date or postage
22 meter date is more than 1 day after date of deposit for mailing in
23 affidavit.
24 I declare under penalty of perjury under the laws of the state
25 of California that the above is true and correct and that this
26 Proof of Service was
11 10, 1992, at West Covina,
27 California.
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OU~1r r r- ^JE
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1 BEFORE THE HEARING EXAMINER FOR THE
2 CITY OF SANTA MONICA
3
4 DAVID BENeKE, ) No. HE-92-2
)
5 Appellant, )
)
6 vs. )
)
7 CITY OF SANTA MONICA, )
)
8 Respondent. )
)
9
10
1 1
Office of the Clty Attorney
Santa Monlca Clty Hall
1685 Maln Street
Thlrd Floor Conference Room
Santa Monlca, Callfornla
12
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Wednesday,
14 March 25, 1992
15 The above-entltled proceedlngs were convened,
16 pursuant to Notice, at 10:10 a.m.
17
BEFORE: MICHAEL WINE
Hearlng Examlner
18
APPEARNCES:
19
For the Respondent:
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ADAM RADINSKY, ESQ.
Deputy Clty Attorney
1685 Maln Street
Santa Monlca, Cal1fornla
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FORM 2
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For the Appellant:
THOMAS A. NITTI, ESQ.
1821 Wilshire Boulevard, Suite 230
Santa Monlca, Callfornia
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IN~~K
OPENING STATEMENTS
On behalf of Respondent
By Mr. Radinsky
On behalf of Appellant
By Mr. Nitti
WITNESSES
DIRECT
CROSS
66
PAGE
10
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REDIRECT
RECROSS
66
70
68
DaVId Beneke
44
IDENTIFIED
RECEIVED
7 7
7 7
7 10
7 7
7 7
PAGE
72
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FORItI2
EXHIBITS
Respondent's:
1 Business license application
2 Denial of business license
3 Notlce of Action. dated
January 27, 1992
4
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CLOSING ARGUMENTS
On behalf of the Appellant
By Mr. Nittl
On behalf of the Respondent
By Mr. Radinsky
Rebuttal on behalf of the Appellant
By Mr. NittJ.
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r.B.O~~~~ING~
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HEARING EXAMINER WINE: It's approximately
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10:10 a.m. on Wednesday, March 25, 1992, in the City of
4 Santa Monica. This an administrative hearing in the Matter
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of David Beneke, B-E-N-C-K-E, and the City of Santa Monica.
6 I believe this is Case Number HE-92-2. My name is Michael
7 E. Wine. I'm the City -- I'm the Hearing Examiner appointed
8 by the City of Santa Monica to hear this instant matter.
9 Other than being handed some exhibits prior to
10 g010g on the record a couple of minutes ago, I have no
11 previous knowledge of this particular matter.
12 While I have been appointed by the City of
13 Santa Monica, I am independent of the City, and I will be
14 making a determination based upon the evidence that's
15 produced at this hearing and any -- the applicable law.
16
This hearing is being tape recorded. Actually,
17 it's being tape recorded both by the Hearing Examiner and by
18 Counsel for Mr. Bencke. I would just, as a cautionary
19 statement since it's belng recorded, there are some rules
20 that we need to try to observe, and that is, we try to talk
21 one at a time, and try to speak up and wherever a response
22 is requlred by anyone who might be testlfying, that response
23 should be given audibly as opposed to a nod or a shake of
24 the head.
25 The hearing will be governed by the provlsions
FOFlM2
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1 of the Santa Monica Municipal Code and applicable provisions
2 of the Administrative Procedure Act.
3 Before we do anything further, are therp any
4 questions about the proceeding today?
5 MR. NITTI: Well, the only question is, the
6 City of Santa Monlca and the rules on appeal provides that
7 the City Council can establish rules for these type of
8 proceedings by resolution. I'm not aware of the City
9 Council adopting any such resolutIon, and I'd just ask if
10 Mr ~ Radinsky or the Examiner is r becallse otherwise we're
11 Just going to go by the APA, as I understand 1 t.
12 HEARING EXAMINER WINE: Well, it's -- I'm
13 sorry.
14 MR. RADINSKY: Well, actually, our
15 understanding is that the APA applies only to certaln
16 aspects of the procedure of the hearing, such as discovery
17 and other items that are not covered by the Municipal Code,
18 so that any procedural thing, not reflected in the Code,
19 that you have, J would agree. But no resolution other than
20 what's now an active Code.
21 MR. NITTI: Right. What I'm originally
22 referrIng to is Municipal Code 6072(c),
23 "The City Council may by
24 resolution establish rules for the
25 conduct of the hearing before the
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Hearing Examiner. In the absence
of such rules, the Hearing
Examiner shall be governed by
those rules generally only
applicable to administrative
proceedings conducted under the
AdmInistrative Procedures Act of
the State of California."
So if I understand correctly, Mr. Radlnsky, the
City Council hasn't adopted rules by resolution, but the
ordinance is control, and to the extent that the ordinances
are silent, then we go to the APA, is that correct?
MR. RADINSKY: That's how we.ve operated.
MR. NITTI: Fine.
HEARING EXAMINER WINE: Anything further?
MR. NITTI: Nothing further.
HEARING EXAMINER WINE: Okay. Why don't you
state your appe_arances for the record?
MR. RADJNSKY: Adam Radinsky for the City.
MR. NITTI: Thomas Nitti for Appellant, David
Beneke, and David Beneke is with me on my right.
HEARING EXAMINER WINE: Okay. And prior to
going on the record today, we marked what we call the
jurisdictional exhibits, marked 1 through 5. inclusive, and
rather than describe them for the record, other than Exhibit
fOAM 2
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1 3, wh1ch Hr. Nitti has stated off the record he has an
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2 obJection to, Exhibits 1, 2. 4 and 5 have been reviewed by
3 you, Mr. Nitti, and you have no objection to them being
4 adm1tted into the record as evidence, is that correct?
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MR. NITTI: That is correct.
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(The documents referred to were
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marked for identification as
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Respondent.s Exhih1ts 1. 2, 4
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and 5. and received in
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evidence.)
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HEARING EXAMINER WINE: Okay. And the exhibit.
12 which has been marked Number 3, which is a court four-page
13 document, you are going to have some objection to that, so
14 we have just marked it for identificat10n purposes as
15 Exhib1t 3, and w1ll describe it as a Notice of Actlon, dated
16 January 27, 1992, with an attachment A, and, I guess.
17 probably what is a cover letter or facsimile cover letter
18 and transmission report, dated January 27. and signed by Mr.
19 Radinsky and directed to you from Mr. Nitti.
20
MR. NITTI: Yes.
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HEARING EXAMINER WINE: That is Exhibit 3.
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(The document referred to was
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marked for identification as
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Respondent's Exhibit No.3.)
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HEARING EXAMINER WTNE: Is there anything
FORM 2
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FORM 2
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1 further of a preliminary nature?
2 MR. RADINSKY: Well, just to get the record
3 clear, I would offer Exhibit 3 into evidence, just as
4 evidence of the fact that that letter and that notice were
5 sent, and obv1ousIy we can argue as to the significance of
6 the letter, but I think it"s -- unless there's any dispute
7 as to whether it was actually sent or received.
8 MR. NITTI: No. There's no dispute as to it
9 being sent or received.
10 HEARING EXAMINER WINE: Okay. And would you
11 state the obJection, then, for the record, Mr. Nitti?
12 MR. NITTI: The objection is that the denial of
13 Mr. Beneke's application for a business license is reflected
14 as the attachment to Exhibit 2, and is a letter dated
15 January 15,1992, from Debbie SaIlers (phonetic).
16 After Mr. Beneke lodged the appeal on 1/21/92,
17 then this document was sent on January 27, 1992.
18 I don't know if thlS document purports to be an
19 amendment of the original grounds, but at the time Mr.
20 Beneke appealed, he appealed from the denial of the license.
21 which is att.ached to h1S appeal t and together comprises
22 Exhibi t 2.
23 HEARING EXAMINER WINE: Well, you know, without
24 having the Government code in front of me, my understandlng
25 is that an action or a Notice of Action can be amended by
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the licensing authority, and unless you can show some kind
of prejudice -- I mean, nothing has transpired in terms of
any determinatlon. You've had this for almost two months
now, so In terms of any kind of preparation for this
partlcular hearing, I don.t see how there's any prejudice to
you, other than the fact that they have stated, I guess.
addltional grounds for the denial.
So unless you can articulate some other ground
as to why I shouldn't admit this into the record, I don't
see that any -- there being any meritorious basis for your
objection.
MR. NITTI: I've reviewed the law as well, and
I agree with you that the policy of the amendment is a
liberal policy. If this is considered to be an amendment
and the allegations are deemed controverted by Mr. Beneke
and by his appeal. then, I'll have no objection.
HEARING EXAMINER WINE: Well, obviously, you
know, we're going to deem that his notice of appeal or his
appeal is going to put in issue all of the allegations
contained in Attachment A to Exhibit Number 3.
MR. NITTI: Then, I'll withdraw the objection.
HEARING EXAMINER WINE: That being the case --
thank you -- Exhlbit 3 is now admitted into evidence, and I
guess, Mr. Radinsky, you may proceed.
II
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(The document referred to,
havlng been previously marked
for identification as
Respondent's Exhibit 3, was
received in evidence.)
HEARING EXAMINER WINE: Do you have an opening
statement?
MR. RADINSKY: I'll give a brief opening
statement, which may overlap into a little bit of argument
about the case.
HEARING EXAMINER WINE: Okay.
OPENING STATEMENT ON BEHALF OF THE RESPONDENT
MR. RADINSKY: Factually, this is a very simple
case. and I don't think the actual evidence, at least that
would be put on. wl11 take very long at all.
Mr. Beneke, sometime late last year, was in a
business of selling --
MR. NITTI: Excuse me. May I -- I'd like to
object to opening statements in this action, on the grounds
that I can see Mr. Radinsky is going to get into evidence
that, our position is. is inadmissiblp in this hearlng,
entirely inadmissible, and that the only way he can bring
the evidence to the Hearing Examiner's attention
HEARING EXAMINER WINE: I'm sorry?
MR. NITTI: The only way he can bring the
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evidence or what evidence he wants to bring to the Hearing
Examlner'g attention is through an opening statement. I
would request that rather than get inappropriate material
into this hearing that we move directly to the evidence as
to why Mr. Beneke was denied a license, rather than proceed
with an opening statement.
Mr. Radinsky was just about to say something
that I would object to If Mr. Radinsky had tried to enter it
into evidence in this hearing, and I am very concerned that
items that we feel would not be admissible, and are good
grounds for not be1ng admissible, could taint this hearing
and br1ng in ancillary issues that have nothing to do with
the reason why Mr. Beneke was denied the license.
MR. RADINSKY: Well, 1n response to that, I
would propose that I get at least an offer of proof as to
what he's talking about, so that the Hearing Examiner can
rule on this. The City strongly disagrees that -- well, not
that he can read my mind -- but that what I startpd to say
was inadmissible or irrelevant. So we obviously have some
dispute as to the scope of this hearIng, and maybe we better
address that now.
MR. NITTI: Well, what I can do is, I can -- I
thlnk posslbly one direct way of addressing the issue,
rather than going right to evidence, would be to go
lmmeolately to the charges 1n the Not1ce of Action.
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The first charge in the Notice of Action is
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2 Municipal Code Section 6024. I have a copy of 6024 for the
3 Examiner and for Counsel. 6024
4
MR. RADINSKY: Excuse me. But before we go
.
.
5 through the -- Can you explain each of the grounds for the
6 Notice of Action. I'd like a response to my suggestion.
7 because I think jt's a reasonable one. hefore he argues his
.
8 whole case.
9
HEARING EXAMINER WINE: Yeah, I don't know what
10
you're starting to argue, because we haven't done anything
11
so far.
12
MR. RADINSKY: I mean, if you want to make your
13 openlng statement first, I don't care what order we go in,
14 if that's what you're referring to.
15
MR. NITTI: Well, I can brlng it, perhaps,
16 ln -- Before opening statements, I can bring a motlon on
17 failure to state the cause of action, and that would be
18 appropriate to bring before we get into any merits of the
19 hearIngs ltself. So if the Examiner will construe my attack
20 on 6024 as a failure by the City to state the cause of
21 action under 6024, I'll move that the 6024 charge be
22 disffilssed on the following grounds.
23 6024, by its own terms, only applies for a
24 license as suspended or revoked. This is a llcense that was
25 denied, and it further says, "When it shall hear that the
FORM 2
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1 business of the person who sueh person was granted, II Mr.
2 Beneke was never granted a license. Mr. Beneke was denled a
3 license. He was not granted one and it was not suspended or
4 revoked. Now, the 6024 -- So it only glves jurisdictional
5 grounds ~or the Hearing Examiner to hear this case if we"re
6 talking about suspension or revocation of a license that was
7 already granted.
8 Now, that is shown in the Code to be extremely
9 lmportant, because in the Municipal Code, the Municipal Code
10 draws a distinction between suspension and revoking or
11 denying, and Beetlon 6070 of the Municipal Code refers to
12 any person aggrieved by the action of any officer or
13 employee of the City suspending, revoking or denying any
14 perml t.
15 6072, appeal procedure. liThe Hearing Examiner
16 may suspend, revoke or deny a Jlcense." Stay, pending
17 hearlng, which is 6070(f). "The suspension or revocatlon,"
18 and there they don't use denial because there they're
19 talking about a stay of an action pending a hearing.
20 The Clty Council, when it adopted its
21 ordinances in its wisdom, has speciflcally drawn the
22 distinction between suspension, revocatIon and denial, and
23 the 6024 only applies to suspension or revocation. Denial
24 cannot he read into 6024, because every place the City
25 Council thought denial was appropriate, they had actually
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added it. and --
2 HEARING EXAMINER WINE: Let me ask you this. I
3 seem to recall -- I don't have the City -- the ordinance in
4 front of me or the City Charter in front of me or the
5 Municipal Code, I guess, but -- correct me If I'm wrong or
6 am I confusing this with another provision? Is there a
7 provision in the Code which refers to denial of an
8 application or denial of a permit based upon any grounds
9 stated in 6024?
10 MR. RADINSKY: Not specifically 6024. My
11 response to everythlng he's saying is we llsted five
12 separate state and local laws 1n the amended grounds Lor
13 denial. which be's started to refer to. Section 6001 is the
14 general license requirements section of the Munic1pal Code.
15 I bave a copy of it, which generally states that it's
16 unlawful to operate without a license, first of all. and
17 second of all, that it's unlawful to operate without first
18 having paid the proper tax and procured a license. and
19 WI thout complyj ng wi th all other applicable regulatory
20 ordinances now existing or hereafter adopted.
21 So to state that there IS no -- I'm not sure
22 exactly what his argument is.
23 HEARING EXAMINER WINE: Well, his argument --
24 right now. you're just arguing on 6024, you're arguing the
25 charge under 6024?
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MR. NITTI: Yes.
2 HEARING EXAMINER WINE: You know, 1"m not
3 saying you're not going to make any other argument, but
4 that's your argument. 6024, you're stating, applies only to
5 revocation. and this 1S not a revocation, therefore, it
6 shouldn"t be a separate ground for the action that's being
7 taken?
8 MR. RADINSKY: Well, I would agree if that were
9 our onl y baRl shere, then he mi ght. have an argument I si nee
10 it on lts face
11 HE~RING EXAMINER WINE: Okay. We're just
12 talking about 6024.
13 MR. RADINSKY: I understand. and my response is
14 that it 18 one of sevpral sections which have to be read
15 together In this case, and although it officially applies to
16 revocation, it sets forth certalD standards, which if they
17 apply revocation, they should at the very least also apply
18 to application, and this is not our sole basis. Obviously,
19 6001 is the catch-all section requiring a license and
20 requiring applicants to rornply with the law, and we set
21 forth five different laws that he did not comply wi th, and
22 6024 18 one of them.
23 HE~RTNG EX^MTNER WINE: The motion to dismiss
24 the charge under 6024 is t.aken under submi Rsion.
25 MR. NITTI: May I address the submission issue
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1 briefly in that regard?
2 HEARING EXAMINER WINE: Sure.
3 MR. NITTT: The 6024 argument is critical to
4 this entire matter. Mr. Beneke, under the Adminlstrative
5 Procedures Act, is entitled to noticp of the charges against
6 him. In 6024, the CIty has given him notice that they want
7 to revoke or suspend his license. Now, the City has also
8 given him not~ce of other things. Okay. There's other
9 charges in the Notice of Action.
10 But my job, as his advocate, is to meet that
11 charge. 6024 has another provision in it, and 6024 says,
12 "When it shall appear that the
13 business of the person to whom
14 such license was granted has been
15 conducted in a disorderly or
16 improper manner or in violation of
17 any stat.ut.e of the St.at.e or
18 ordinance of this City or this
19 Code. II
20 Now, 6024 applies. It opens up this entire
21 hearing, because we then have to 'We then get into iSS1JeS
~ of violation of any other statutes of the State or
23 ordinances of the City or of this Code.
24 But 6024 doesn't apply, then the City has to
25 come up wlth another basis for charging Mr. Beneke. It'R
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very possible that if 6024 doesn't apply. it"s the end of
thlS hearing at this tlme, unless Counsel for the City can
point the Examiner to another section that applies.
Now, Counsel for the CIty has pointed the
Examiner to bis opinion that. "Well. if it applies to
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6 suspension or revocatlon, lt should apply to the denial."
7 But the City Counci 1. by t.he ordinance. is what cont.rol s,
8 not what Counsel thinks policy should be. We have to go by
9 the exact words of the ordinance.
10 Counsel fo~ the Clty has also pointed to 6001.
11 WhlCh is the general statute. Rut Mr. Reneke wasn't charged
12 with a violation of 6001 in the Notice of ^ction. So how
13 was I supposed to prepare for a meet.ing of Defense based on
14 6001, when 6024, by its own terms, doesn"t apply.
15 Mr. B~ncke understands that 6024 is suspension
16 or revocation. This is not a suspension or revocation
17 hearing. and jf the Examiner takes 6024 under submission, it
18 forces my client and myself to put on an extenslve defense
19 based on 6024, when my feeling iR 6024 doesn"t apply in the
20 first instance, and I would rather that the Examiner, if
21 necessary. take a brief recess or furt.her argument. on 6024,
22 because I believe that this is critical to the posture of
23 the whole hearing.
24 l,iterally, I think the difference as to whether
25 or not 6024 is heard or not may make the difference in the
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bearIng of a half hour to fIve or six hour~, becauRe 6024 1S
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a very broad statute -- very broad ordinance. If it, In
3 fact, applies.
4
HE~RING EXAMINER WINE: Can I -- You didn't
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5 show me 6001. Let's go off the record fOT a second so we
6 don't have the tape rUl1nl ng.
7 (Discussion held off the record.)
8
HEARING EXAMINER WINE: Okay. Mr. Radinsky --
9 We're back on the record.
10 Mr. Radinsky, do you want to respond to
11 Counsel's argument?
12
MR. RADINSKY: Well, first of all, on fi024, I
13 will stipulat.e that. the Cit.y is not bringIng an act.ion to
14 revoke or suspend Mr. Beneke's license, and that in a
15 hypertechnical (phonetJc) sense, that a charge brought
16 sol ely under 6024 cou] d be d] smj Bsed ~ however, we ObVIously
17 disagree as to tne significance of a section WhICh may
18 represent signLficant policy ]n the licenSIng scheme, even
19 though lt does not apply a~ a sole basis for revocatIon.
20 Now, Mr. Nitti is very creative in his
21 hypertechnical objections to the way the City's case is
22 being presented, although we haven't even started yet. T
23 would requeRt that any legal arguments he has be reRerved
24 for either the end of the hearing, or at least his openlng
25 statement, ano that I, at the very leaRt, be allowed to make
FORM 2
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1 an offer of proof on what the City be]jeveg the issues here
2 are, so that the Hearing Examiner has some idea of. what the
3 heck we're talking about.
4 HEARING EXAMINER WINE: Well, it appears that
5 6024, as you stated, Mr. Radlnsky, only applies to
6 revocation, and r don't think, based upon what I've heard so
7 far, what you've said so far, r can consider 6024 as a
8 grounds for denial o[ a permi t or a license, unless you can
9 show me something under the Code or some authori ty for the
10 proposition that a denial under the Code equals a
11 revocation.
12 MR. RADINSKY: I'm not arguing that, and also,
13 J don't see how we have gotten to thj s :i SSl1e of whether 6024
14 should be involved. I mean, the exhibits are in evidence.
15 I was jn the process of startlng to explain thp handful of
16 facts that we intend to prove when T was interrupted.
17 HEARING EXAMINER WINE: Okay.
18 MR. NITTI: It was done by a motion, which is
19 allowed under the APA, a mot1on for failure to state a cause
20 of action and prior to -- at the time of the hearing is
21 allowed. prior to taking evidence.
22 HEhRING EXAMINER WINE: Well, unless you can
23 convince me otherwj Re, Mr. Radinsky, it. wou] d seem that the
24 dismissal of the charge under 6024 waul d seem to be well
25 taken.
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HR. RADINSKY: Very well.
HEARING EXAMINER WINE: The charge under 6024.
then, 1S d1smissed.
MR. R~DINSKY: I would like to respond then to
his follow-up hypertechnical argument, which is, that if
6024 is dismissed, then none of the other counts can come
in, becaURe apparently under his reading, 6024 is t.he only
umbrella by which YOll can bring other ~ounts in.
My response is that thlS Notice of Action makes
it very clear, and the evidence will show, that numerous
other communications wlth this office, prior to this, have
made lt just as clear, exactly what the City's problems are
wjth Mr. Beneke's business, and that there"s no lack of
notice, there is no prejudlce, and that we be allowed to put
on our evidence of what is his business, which Mr. Nitti
seems intent on avoiding.
MR. NITTI: May t address that, Mr. Hearing
Examiner?
HE^RING EXAMINER WINE: Sure.
MR. NITTT: ]" appreciate Mr. Radinsky
discussing this in the context of procedure and not going to
the meri ts, and T appreciate t.hat very much, because I see
some pro~edural issues here.
The City Council has established a procedure in
the ordinances, as r sald, for sUBpenRion and revocation of
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licenseR_ ~pparently, they have not. establlRhed a pro(""edure
for denial, except in the appeal section, where it indicates
that a Hearing ExaIDlner can deny a llcenRP, apparpntJy in
the first inRtance.
Clearly, why did the City Council provide that
a business licenRe can be suspended or revoked depending on
the type of business or how it's conducted and not provide
that it can be denied in the flrsl instance?
I would assume that the City Council came to
the conclusion that -- How they can know what type of
bURiness someone is going to have when you look at the
business application. They ask virtually hardly any
information. How could they know what type of business a
person could have in order to be a positive denial? The
application in this instance, which has been admitted into
evidence, simply says retail saleR/general merchandise.
So the City hasn't established a denial
proceduTP. It appears that the City has taken the position
that we will allow buslness to start Up. and then. if what
they are doing 18 in any way inappropriate, we have a
procedure for imllledlate suspenSlon or revocati.on.
Now, why the City dld that is a legis]atlve
issue, not -- it's not for the Judicatory function to
determine what's the best way for a Clty to proceed.
Certainly, the Santa Monica City Council could have provided
FORM 2
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1 for denial of lIcenses in the first lnstance. But they
2 haven't. and it's not the role of the adjudicatory function
3 to come in and fill that gap for the City Council. Perhaps
4 the City Council should amend its ordinance to provide for
5 deni al, but they haven't.
6 My contention is that unless Counsel for the
7 City can point to an ordinance that allows the City to deny
8 the license application in the first instance, that the
9 Hearing Examiner has no jurisdiction to proceed. The
10 various other laws that the City has cited in its Notice of
11 ActIon, none of those laws have anything to do with the
12 business license function of the City of Santa Monica.
13 They're not even in the section under business licenses.
14 The state laws that are cited have no reference
15 to a husine::.s licen::.e. They're BUSIness and Professlon Code
16 sectlons, but none of them refer back to the business
17 l:i cenae sectlon of the Sant_a MOD] ca Muni ci pal Code in any
18 way. I think it's incumbent upon Mr. Radinsky to point out
19 what sectloD allows the City to deny a business licenge. T
20 haven' t found one, and I have gone through the entl re
21 Municlpa] Code in the husines::. lIcense section, and found
22 nowhere where the City can deny a Jicense in the first
23 instance, and unless Mr. Radinsky can point to it, it's our
24 contention that the rest of the charges fall.
25 MR. RADINSKY: Okay. So it's Mr. Nitti's
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1 argument that the City must grant a business license to
2 every applicant. period. That"s his argument.
3 MR. NITTI: Correct.
4 HEARING EXAMINER WINE: It sounds like you"re
5 saying that it's simply administerial.
6 MR. RADINSKY: Right. and I have several
7 reBponseB to t.h at.
8 First of all. I agree with him that w1th the
9 Jimited extent to that. the MunIcipal Code could stand to be
10 a little bit clearer and more explIcit about certain
11 sUbJects. such as denial of applIcation. However, it's
12 ridiculous to assert that the City must administerially
13 grant every application and then walt and see if the person
14 complies. especially in cases such as this, where the City
15 has advance information that the business is unlawful.
16 First of all, section 6001, which Mr. Nitti is
17 very familiar wIth, WhICh is the license requIrement
18 section. also states in the middle of the paragraph that.
t
"No person shaJ] operate a
business w1thout having first paid
the tax and procured a license.
and without complying wLth all
other applIcable regulatory
ordinances now existing."
Even without this section. if there are other
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sectlons in the Municipal Code, such as the ones ]n the
Notice of ~ction, having to do with the -- Mr. Beneke's
bus1ness, that he's violating the City law. Just out of
general policy of upholding the law, it would have ample
grounds for denying a license if it knows in advance that a
business will violate the Municipal Code.
It's ridiculous to assert otherwise, that there
has to be some explicit provision saying, "If you're going
to vlolate the law, we can deny you.h I think that's
inherent in any municipal law, that a business which is
known in advance to be 1n v101at1on of the law can be denied
a license.
However, 600L makes it clear that that 15 one
of the prerequisJtes to operating a business, and I still
majntain that Section 6024, while its subject matter is
revocati on of" ] i censes, it does set f ortb t,he Ci ty Counci J · s
poli~y with respect to conducting a bus1ness, and if there's
grounds for revoking an existing license, WhlCh is already
vested in the license holder, than at the very least those
same grounds should be applicable to somebody who doesn't
even have a license and has no vested rights of conducting
business in the City.
So for all three of those reasons, it's
ridiculous t.O assert that someone who is known in advance to
be operating -- to have already started operating a business
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in violation of the law, which is what we will prove. has to
2 be adminlsterial granted a business license. That's absurd,
3 and I would request that -- I'm sure Counsel would like to
4 go round and round and argue this -- I would request that we
5 do that. once we plJt on some evidence, because otherwise, we
6 could be here all day before we hear any evidence.
7 MR. NITTI: We] l, I t.hink the ] ssue is whether
8 we're going to hear any evidence, and that's what I'm
9 getting to. Section 6001 says, as Counsel has cited,
10 requires before you do busj ness that YOIJ have fj rst paid the
11 requlred business tax and have procured a license.
12 Now, the City's remedy for failure to do that
13 is to file criminal charges if someone ]5 operating a
14 business without a l~cense. That is the remedy there.
15 What Mr. Radjnsky is basically saying is that
'6 the City, having failed in their ordinances to provide a
17 provlslon that they can deny licenses under certaln
18 circumstances, that that should be read into the ordinances
19 just as a mat.ter of common sense.
20 Mr. Ben~ke is required to comply with the law,
21 not with common s~nse as sepn by thp City ^ttorn~y.
22 MR. Ri\DTNSKY: Wp.'ve accused hlm of violat.lng
23 several laws. That's Why wp're here.
24 MR. NITTI: ~t its most extreme, let's take the
25 most extreme exampJ e. IJet · s say Mr. Beneke put down on a
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1 license application that he ~ants a license to sell cocainp
2 or mar1juana. It's not ridiculous. Several mid-western
3 states require business licpnses and taxes, a stamp tax to
4 sell marijuana. This 1S a way of enforcing their law to
5 ferret out mari juana deal ers. You ei ther get_ busted for not
6 paying the stamp tax on marijuana, or you get husted for
7 selling marijuana, one or the other.
8 So what the licensing function
9 HEARING EXAMINER WINE: So the City should
10 grant him a license in that case?
11 MR. NITTI: All I' m sayi ng i s
12 HEARING EXAMINER WINE: SO the City would have
13 no basis for denying that? They would have any inherent
14 po11ce power to deny an application in that situation
15 without telling you? What if he wants a license for a
16 murder for hire bUSlness? Should they grant that license
17 under the provisions of the Code? Is that what you're
18 te111ng me?
19 MR. NITTI: Under the provisions of the Code,
20 the Ci ty has
21 HEARING EXAMINER WINE: Don't they open
22 th€'mselves up for liab1l1ty then, if
23 MR. NITTI: No.
24 HEARING EXAMINER WINE: -~ you know, if they're
25 gOlng to ]1cense an unlawful act?
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1
MR. NITTI: I understand what you're saying. I
2 raise the argument about someone who wants to sell cocaine
3 for that very purpose. The City may have the ability to
4 deny a license to a unlawful activity that's put on a
5 buslness license application, but the application is in
6 evidence before the Examiner here, and the application says
7 retails RaJes/genera] merchandise.
MR. R~nINSKY: There's no indication that
8
9 that's the only evidence that was before the City
10
HEARTNG RXAMINER WINE: What if it said retail
11
sales/general merchandise and they knew that
they had
12 evidence that he was selling cocaine? Are you saying they
13 should license -- usi ng the business as a front to sell
14 cocaine -- they should grant the license in that situation?
15
MR. NITTI: J'm saying that the Clty --
16 granting of the license is a administerial act. The City
17 can't operate on lts SUspiclons. The City, as to --
18
MR. RADINSKY: That's why he's entitled to a
19 hE"arlng.
20
MR. NITTI: The City can operate on the
21 application as submit.t.ed, but the Cit.y cannot operat.e on it.s
22 susplcions. unless Mr. Radinsky can point to a Code secti on
23 which allows the City that leeway. Where the City is
24 constrained by its Code -- The City is constrained by the
25 CodE" sectj ons. We can tal k about pol icy. The E'xampl e of
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cocaine was a policy example.
Rut we're lim1.tp.d by the Code, and although we
can all agree that giving licpnses to cocaine dealers is a
bad thing, ,t's still a policy issue. and the Clty hasn't
yet addressed everything in its Municipal Code sections, and
since they haven't yet addresspd everything, it's incumbent
on Mr. Radinsky to point out. why a pe~son who puts down on a
license '"retail sales/general merchandise" where the City
bas the autho~ity to deny that administerial act.
MR. R^DINSKY: It's in 6001, which he violated
flrst of all by operating without a license in the first
place, and second of all, by operating an unlawful buslness,
t.he evi dence of whi ch we are very eager to put on, and if
6001 cannot be clear, it is denominated 1n a denial section.
But clearly it. provides a prerequisite to doing business.
Now. if he's violating a prerequisite to doing
business, J think that's a very good ground for denying his
request. This is not based on common sense or purely
policy. It's baB~d on what's in the Code, efipecially when
all these sections are read together.
HEARING EXAMINER WINE: Well, inasmuch as we
are here and we've gone this far in the proceeding, I'm
inclined to hear the evidence. You can renew your motion,
and I'll hold the record open to allow both parties to
submit written argument on th1S issue. But since we are
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1 heTe, we're going to proceed with hearing the evidence, and
2 that doesn't -- as I said, it doesn't preclude you from
3 challenging the validity of the statutory or the regulator
4 scheme. It doesn't mean that I am going to UltImately
5 determine that the City's action is correct. It ju~t means
6 that, l think, we need to move on this matter, and the
7 deni al of your moti on is wi thout prejudice to your abiJ i ty
8 to renew it and to put it in writing.
9 MR. NI'T'TT: Thank you.
10 MR. R^DINSKY: Okay. As I was saying, the
11 f'vi dence wi 11 show t.hat ] ate 1 ast year, Mr. Beneke
12 distributed advertisements in the local area for the sale of
13 parking meter coverlngs. The City became aware of these
14 advertisements, got In touch WIth Mr. Beneke, advised him
15 that thls was lInprOper and unlawful, for grounds that we
16 will make more clear as the case develops, and advised him
17 not to conduct the business.
18 Mr. Beneke's business license application,
19 which is Exhibit 1, he submItted, and that license was
20 denied. Tn the first instance, it was denied, as you've
21 seen at 1.achment t.O Exhl bl t 2, on t:he grounds tha tit
22 contalns a disclaimer, which you'll see in the middle of
23 ExhibIt 1, stating "This application is being filed with all
24 reservation of all rights to contest its necessity under
25 prot.est and 1S not an admlss1on. II
FORM 2
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1 The licensing department wrote him a letter
2 saying, "That'~ not a proper way to fill out a business
3 appl i cati on. Do another one," and i nst.ead, Mr. Beneke fi 1 ed
4 this appeBl.
5 Subsequent to his appeal, the City Manager's
6 offjee sent out an offirial denIal with attachment A. which
7 lists the variou~ ~tatutes and Code sections, explaining why
8 hi B hUBl neBS was improper and why the appl i cati on was denl eo
9 on it~ merits. T will point out that this was done in an
10 abundance of c:autlon in order to create a complete recorD as
11 to a]1 the merits here, so that this hearing does not simply
12 revolve around a technical issue of whether that disclaimer
13 is proper, in which case, depending upon how the Hearing
14 Examiner rules, we would just be back here agaIn a couple of
15 months later.
16 The facts, as far as I can tell. are not in
17 dispute. Mr. Rencke -- The purpose of his business 18 to
18 sell parking meter covers, which the City claims are
19 unlawful, and we've now made clear through our back: and
20 forth over these procedural issuAB that that is unlawful and
21 therefore grounds for denial of his blJBineS8 license.
22 Now. Mr. Nitti, T anticipate him arguing, since
23 he already raised this, that the whole scope of this hearing
24 should be whether the initial January letter from the
25 ]icensing dE>partment. whether that should be upheld. In
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1
other words, rejecting his application for containing that
2
dJsclaimer.
3
I'm happy to argue that tssue, and that is
4
definitely one of our gronnd~ on why his application was
5
denied and is improper, but it is not the whole ~tory.
6
HEARING F.XAMTNRR WTNR: Okay. Do you have an
7
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open1ng.
Do you want to resprve opening?
8
MR. NITTI: Only perhaps as to his stipulation
9 resolved here.
10
HEARING EXAMINER WINE: Okay.
11
OPENING STATF.MENT ON BEHALF OF APPELLANT
12
MR. NITTI: As T understood F.xhibit 3, Exhibit
13 3 is an amendment of the letter of January 15th, that
14 res e rva t, ion of r i gh ts 1. s no 1 anger ground s on denyj ng Mr_
15 Beneke the license, and the reason T understand it that way
16 is based on Mr. Radinsky's lettpr of January ?7th, which
17 says, "near Mr. Nitti: Enclosed is the off]clal denial of
18 your client's application for a business license."
19 In the official denial, ~mppljed by Mr_
20 Radinsky and signed by the CJty Manager, there is no
21 reference to Mr. Beneke's reservation of rights af> a grounds
22 for denial.
23
HEARING EXAMINER WJNE: Well, to go back to
24 your j ni t] al argument that. there l s no grounds for a denl a1
25 of an app] i cation for a busi ness license, ot.her than the
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Hearlng Examiner -- I believe is what you Bald -- has the
power to deny a license, don't T have this before me and the
fact that this is ~hat his application contains? Whether or
not that"s the basis the City was proceedIng on in their
denjal action or theIr official statement, if this is stjl]
his applIcation and thIS is still his position, that that
contains somethlng that, you know -- Basically, the way I
read that JS that it. says, "T don't need a license. T can
do anything T ~ant." Is that what he's saying?
MR. NTTTI: He's reserv1ng his rights, yes, in
that. regard.
HRhRTNG RXhMTNRR WTNE: Well, hut that's his
application. That"s an pxhihit. That'5 in front of IDe.
MR_ NITTT: The self-contradictory document.
HE^RING EXAMINER WTNE: I mean, that's in front
of me.
MR. NITTI: Mr. Beneke is required to meet what
the CIty puts him on notice of. Mr. Beneke has a NotIce of
Actlon, which Mr. Radlnsky, by his letter, says is the
offICIal denial. My cllent only has to meet what's in Lhe
Notice of Action. That.s what I've prepared for. I
consider it
HEARING EXAMINER WTNE: Well, isn"t --
MR. NITTI: -- a reservation of rights issue,
and the Examiner cannot go beyond the Reope of the Notice of
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1 Action. If the Examiner wants to go beyond the scope of the
2 Notice of ^ction, where is my notice to my client and
3 HEARING EXAMINER WINE: We]], you can --
4 MR. NITTI: What if it's not slgned properly?
5 no YOll decide, "Well, it.'f> not ::;igned properly, and Tim
6 going to raise an issue on my own motion, as the F.xaminer,
7 and deny it."?
8 My cllent is entitled
9 MR. RADINSKY: He was on notice because of
10 DebbJe SaIlers' letter. That's the big difference. I mean,
11 clearly--
12 MR. NITTI: Mr. Radinsky withdrew the ground in
13 Debbie SaIlers' letter with his letter of January 27th.
14 HEARING EXAMINER WINE: Well, is your client
15 refuti ating (phoneti c) his appli cati on then? Where is tile
16 application then? Which application am 1 ruling on?
17 MR. NITTI: You're only ruling on the
18 appl1cat.ion r~garding the reservation of rights
19 HEARTNG RXAMTNRR WINE: Okay.
20 MR. NTTTI: -- but it's our contention that. t.he
21 Examl ner is 1 i mi ted to t.he grounds rai sed in the Noti ce of
22 Action, because that ~s the only way my client's entitled to
23 receIve his due process. It's the same -- It would be the
24 same j n court. T mean, the Examiner cannot raise issues on
25 his own motion.
FORM 2
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1 MR. RADTNSKY: Well, he'~ gott.en plenty of due
2 proce~s on the issue of the reservation of rights clause.
3 HEARING EXAMINER WINE: It's before me. Once
4 agaj n
5 MR. NITTI: The Clty'S not complaining about
6 it. The Ci ty --
7 HEARING EXAMTNF.R WTNF.: But it's like a Catch
8 22. It's like they don't have any power to deny It and J'm
9 the only -- I can review the application and they could
10 If they've stated a ground for denial, which really they
11 can't do because there isn't any ground of denial, then T
12 can't consid~r what he's stating in his application in
13 ruling on his business application. That.s what you're
14 te]]jng me.
15 MR. NITTI: Well, as clear as T can be, the
16 Examiner can only make decisions within the context of the
17 Not1ce of Action, and the Examiner is limited in that
18 respect. If the F.xami ner goes OlJt_si de the grounds stated in
19 the Notice of ActIon, it's not a due process to my cllent.
20 HEARING EXAMINER WINE: Well, let me just ask
21 you this. If Mr. Radlnsky were to request that the denial
22 be amended to include that aB a ground, can you show me that
23 your cl i ent' s prejudi ced today?
24 MR. NITTI: Yes, I can show you that.
25 HEARTNG F.X^MTNRR WTNE: ^nd how lS that?
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1 MR. NITTI: Because prior to this meeting T
2 informed my client, and 1 prepared in the fOllowing fashion.
3 Thp Sallers letter of January 35, 1q92. the grounds stated
4 in that letter are not grounds that are going to be raised
5 in this hearing, and we do not have to prepare for tbose
6 grounds because Mr. Radinsky, by his letter of January ~7,
7 1992, said, "This 1S the official den1aI to your cIlent.'s
8 application. II
9 HEARING EXAMINER WINE: Okay. I can cure that
10 by continuing this matter --
11 MR. NITTI: Well, that may be necessary.
12 HRARING EXAMINER WINE: if it's going to
13 requlre that much preparation on your part. But I'm not
14 If you're wi 11 ing to drop that. issue, t.ben we don't have to
15 deal wlth that.
16 MR. RADINSKY: I'll tell you what T'm going to
17 do. Clearly, this is a threshold issue, as to whether --
18 What the licensing department originally said was, 'tTJOOK,
19 this is garbage with thjs thing on here. This is not a
20 val~d application. We're not go~ng to consider It. Submit
21 a proper on e . "
22 Instead of dOlng that, he flIed a notice of
23 appeal, at which point our office realized that we're going
24 to have a hearing on this application. and it will be a
25 supreme waste of time to come in here and quibbl e over t.hi s,
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although we believe ~t's a pretty blatant admission of a
good reason to deny it. Therefore. we set out the merits in
Attachment A to Exhibit 3, and, I mean, Mr. Nitti. he's
saying this with a straight face. but he can't be serious
that he was not on notlce about this and that there's any
prejudice to his client.
If it's necessary -- I hope lt's not
nec~ssary -- but lf it's necessary. J'm willing to stipulate
that the reservation of rights clause itself is not the
substantive reason the City 1S relying on to deny the
application; however. it's defLnjtely admiss1ble and
relevant and goes to the fact that th1s guy's bepn operating
an unlawful businesR and has no regard for the law, which is
part of our grounds for denying lt on the merlts.
So I don't care how it gets in. It's already
in evidence. I mean. this is getting a little bit
ridiculous. I mean, these five exhibits are before the
Hearlng Examiner. I would still like to attempt to put on a
case. and if he has any arguments that this should be
excluded, let him make the legal argument in due process or
whatever he wants to come up with. But it's ridiculous, and
the City has glven more than ample notice and an abundance
of caution of every possible ground that we're relY1.ng on.
MR. NITTI: If the City is going to jnRist on
the ground that the application should be denied because my
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1 client wrote r~5ervation of rights on the application, at
2 this time, on behalf of my client, we will stipulate that if
3 thp City should win the hearing on that ground and that my
4 client -- because my client wrote reservation of rights
5 Well, rather than stipulate, what we'll do, we will not
6 contest that ground, and we wi J 1 agree to a rul ing aga1 nst
7 my client on the grounds that he reserved his rights and ask
8 that the hearing be closed at this time, and that a decisjon
9 be i SSUE>d by the Examiner on the grounds that my cl i ent
10 reserved his rights, and then, we will appeal the matter to
11 the Ci ty Counei 1.
12 MR. RADINSKY: As I have said, we have other
13 grounds which I definitely want to get on the record. You
14 don't do a case piecemeal.
15 HEARING EXAMINER WINE: Yeah. You know, we're
16 here. We're going to put all the grounds on the rpcord. If
17 YOll feel you've been preJudiced
18 MR. NITTI: Yes.
19 HE~RING EXhMTNER WINE: -- then in terms of
20 your preparation for your affirmatlve case, T would
21 assume--
22 MR. NITTI: That's correct.
23 HEARING EXAMINER WINE: Okay.
24 MR. NITTI: Well, the defense involves the
25 affirmative case.
FOR~ 2
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HE^RTNG EXAMINER WINE: Well, what kin~ of
preparation are you talking about now? I mean, it doesn't
seem like it"s a
MR. NITTI: Let me --
HEARING EXAMINER WINE: -- very complicated
issue.
MR. NITTI: Well, let me be real clear on that.
HEARING EXAMINER WINE: Okay.
MR. NITTI: In California, as well as every
other state, reservation of rights on any type of Government
document, to the best of my knowledge, is not grounds for
denlal of any type of application. It's commonly used on
payment of property tax.
HE~RING EXAMINER WINE: Well, it doesn't just
say reservation of rights. It says, "Reservation of rights
to contest lt's necessity."
MR. NITTI: That's the reservation of rights.
He's reserving all rights.
MR. Rt\DINSKY: Well, could 1 just try to cut
this short. In response to Debbie SaIlers' letter, he filed
his notice of appeal to the Hearing Examiner. At that time,
I assume Mr. Beneke or Mr. Nitti or both had some idea that
they thought that was improper and they wanted to appeal it,
and it was not until at least a couple of weeks after their
notice of appeaJ, T think, that the City Manager's official
FORM 2
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1 deni al was sent out.
2 So this whole argument about prejudice is just
3 silly. Mr. Nitti 1S obviously very well prepared on all of
4 these legal issues. He has plenty of arguments on the
5 reservation of rights, and bets made them. So let"s get on
6 w1.th this. He's obviously not prejudiced.
7 HE^RING EXAJofINER WTNE: Whereof; the prejudice?
8 MR. NITTI: The prejudice is that T want the
9 tlme to prove to the Examiner that reservation of rights on
10 a Government application --
11 HEARING EXAMINER WINE: Isn"t that just a legal
12 argument?
13 MR. NITTI: That's a mixed legal factual
14 argument, and it can't be addressed simply by a legal brief.
15 HEARING EXAMINER WINE: What do you not have
16 here that you would be able to obtain and present to me
17 that's not here today?
18 MR. NITTI: City policy regarding reservation
19 of r]ghts of documents filed with the City and other
20 business license tax context, and other tax context. T
21 would like the chance to confer with Mr. Beneke regarding
22 ho~ to proceed in regards to the reservation of rights
23 issue. When J told hlm It was not an issuei now it is an
24 1ssue.
25 HEAR1NG EXAMINER WINE: Well, I can adjourn
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thi s hearing for aha] f an hour and let you consul t wi t.h
him. But beyond that, 1"m not going to. If all you.re
making -- If you.re making that kind of a presentation to
me, that.s something that. you know, I'm going to give you
time to file a brief with respect to the other issue and
this can just be -- this can be an additional issue that you
can raise at that time.
MR. NITTI: But in regard to obtaining this
lnformation from the City, I need tim~ to conduct discovery.
I felt that this issue -- I understood this was not an
]SRue, anymore. It's not ]n the official notice. Mr.
Radinsky says, "No, the official notice is this document,
plus the preceding letter."
If that.s now the grounds the City is moving
on, I want an opportunity to conduct discovery under the APA
as to reservation of rights with the City, because I can
think of three examples of where people have applied for
reservations of rights with the City and it has not
prejudiced them at all. It.s a common thing to do when
someone doesn"t agre~ with the City, but is trying to comply
as best he is able to.
If the City is g01ng to say, "We don't want
proteRts, we don't want people reserving rights," the City
is taking away one of my client.s fundamental rights. I
want to have the opportun; ty t.O conduct di scovery j n this
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regard since the City Insists on pressing forward with that
as a separate ground.
MR. RADINSKY: Excuse me. I'd like to propose
a stipuJation or some kind of agreement to get on with this.
I would propose that if the Hearing Examiner rules on the
merits of this case, that Mr. Beneke's application ~as
properly denied on the merits, the issue is moot. The
reservatIon of rJghts is moot.
If the Hearlng Rxaminer rul@s that the City
ShOllld have granted his business Jicense. I would propose
that, if that is the case, that Mr. Beneke submit, perhaps
even the same application, without the reservatJon of rlghts
clause, and get his business license. In which case, that
would render moot any future VIolations of operating without
a business license and this whole thing about contesting its
necessIty would be moot in any event. So in either case,
it's moot.
However. my point a half hour ago was that this
is relevant as to hlS state of mind and state of his
business and his flouting of City laws. But I don't see how
Mr. Nitti can complain with that. As I said, jf we win the
case, thls is moot. If they Wln the case, he gets his
business license and it's moot anyway. What are we arguing
about?
MR. NITTI: I would propose an easier
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stipulation. If the City feels that ref;ervation of rights
alone is enough to win this case, I will stipulate that we
will put up no argument on that issue, that the Hearing
Examiner can decide on that issue and then clORe this case.
If the City is confident that reservation of
rights -- that they can win on it. we'll put up no argument,
the Hearing Examiner can rule, and we can ~nd this case.
MR. RADINSKY: Well, that's ridlculous. I
already explained that we had other grounds.
MR. NITTI: Well, then, the City is not ready
to proceed on it. Thp City's not ready to proceed on it.
One ground is enough. The Examiner doesn't have to make a
decision on every ground.
MR. RADINSKY: Well, I agree one ground is
enough, but we have other grounds, and you don't put on just
part of your case if there's the likely event of an appeal.
Obvi OUS] y, we want t.o put. on our who] e case, and I have no
idea what we've been arguing about for a half hour.
MR. NITTI: Well, we're
MR. RADINSKY: And this is all here. It's in
evidence.
MR. NITTI: Anything else -- If we're not gOlng
to put up an argument and the City feels reservatIon of
rights is enough to win the case, we"ll concede it.
MR. RADINSKY: Well, we're obviously not going
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to appeal on an incomplete record.
MR. NITTI: Then I don't think the City -- I
don't think the reservation of rights issue is a ground,
because the City's not confident that they can sustain it.
HEARING EXAMINER WINE: Well, you"ve both got
me turned around so much I don't know what live said before
or what J'm going to DO.
MR. NITTI: I'm not sure whether we're going
forward or not.
HEARING EXAMINER WINE: Well, we"re going to go
forward and hear the City's evidence, and you can reserve
whatever arguments you have for SUbmission in written legal
form. But I'm going to hear the evidence at this point 1n
time.
You may proceed. Mr. Radinsky.
MR. RADINSKY: Thank you.
HEARING EXAMINER WINE: Are you done wlth your
openJng statement?
MR. NITTI: Just for a record on the
reservation of rights issue, proceeding on that issue, I'd
like to state for the record that prejudices my client.
HEARING EXAMINER WTNE: Okay. That's notp.d for
the record.
MR. NTTTI: Thank you.
HEARING EXAMINER WINE: You may proceed.
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Mr. Radinsky.
MR. RADTNST<Y: 'rhank you. I would just like to
call Mr. Bencke and ask him a couplp of ~lick questions, and
that will be our case.
HEARING EXAMINER WINE: Okay. Mr. Beneke,
would you raise your right hand, please.
Whereupon,
DAVID BENeKE
was called as a witness herein and, after first having heen
duly sworn, was examined and testified as follows:
HEARING EXAMINER WINE: You may proceed, Mr.
Radinsky.
DIRECT EXAMINATION
BY MR. RADJNSKY:
Q Mr. Beneke, can you take a look at Exhibit 1,
please, which is a copy of Y01JT application?
A Yes, 1 have it here.
Q Is that your g;gnat.ure in the middle of the
page?
A Yes, it is.
Q And you filed the original of this application
wjt.h the City?
A Yes, I didw
Q And that's your writing in the -- just above
the signature, beginn) ng Wl th '"Thi s application, to that
FORM 2
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paragraph is your writing?
A That is co~rect.
Q Now. prior to submitting this application for a
business license, had you sent out any advertisements in the
mail advertising your business of selling parking meter
covers?
MR. NITTI: Objection. On behalf of my client,
we exercise my client's privIlege against self-incrimination
unde~ the Fifth Amendment of the United Stateg Constitution,
and I believe it's Section 940 of t.hE'" California Evidence
Code, but let me just double check.
(Pause. )
MR. NITTl: Yes. 940 of the California
Evidencp Code. The baslR for the grounds is independent
criminal proceeding against Mr. Beneke by the City, directly
involved with matters Mr. Radinsky is questioning about.
MR. RhDINSKY: Very well.
HEARING EXAMINER WINE: The obJection is
sustalned.
MR. RA.DINSKY: You're l.nstructing your client.
not to t.estify?
MR. NITTI: That's correct.
MR. RA.DTNSKY: J wou]d like to show Mr& Beneke
a one-page copy of an advertisement with his name on it, and
T ~ou]d like to ask him If he has seen this hefore?
FORM 2
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1 THE WITNESS: Yes, I have seen this before.
2 BY MR. RADINSKY:
3 Q Okay. Did you prepare thlS advertisement?
4 MR. NJTTI: J'd object on the same grounds, the
5 Fifth Amendment, Section 940 of the Evidence Code on behalf
6 of my client.
7 MR_ R~DINSKY: Okay. In order to save time, IS
8 it--
9 HEARING EX~MINER WINE: Sustained.
10 MR. RADINSKY: Tn order to save time, is it
11 safe to say, Mr. Nitti, that you will assert your client's
12 Fi fth Mnendment, pri vi] ege as to any testimony as to the
13 nature of the busj ness for which he has applied for a
14 llcense in this case?
15 MR. NITTI: I don't think there's any evidence
16 at al J as to t.he naturE> of the bus] ness that Mr. Beneke' 5
17 applied for except what's on the application, WhICh says
18 "retail sa]es/gpnera] merchandise."
19 MR. RADTNSKY: Well, T repeat my question.
20 MR. NITTI: I have no response to that. I
21 think you should ask Mr. Beneke the question.
22 BY MR. RADIN SKY:
23 Q Mr. Beneke, on your bUS1ness license
24 application, Rxhibit 1, it says that the description of
25 business, under item eight, is mail order-general
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1 merchandise, 1S that. correct?
2 A That is correct.
3 Q Okay. What. type of general merchand1 se di d you
4 intend to go into business selling when you submitted this
5 appl ication?
6 A All sorts of different general merchandise.
7 Q Can you be more specific?
8 A No. There's a number things that I can sell
9 with the genera] merchandise business license, therefore
10 there's an application for {indiscernible}.
11 Q Well, there's an infjnjte number of it.ems that
12 one could sell. but what T want to know is, at the time you
13 submi tted thj s appl1catlon chd you have in mind any
14 particular items that you want.ed to sell through the mail?
15 MR. NITTI: Objection on the grounds that Mr.
16 Bencke's intent is irrelevant. Nowhere in the Santa Monica
17 MUD1CJpal ordJnancp. does the issue of intent corne up or what
18 particular type of item is going to be sold as being at all
19 reI evant to a det.ermination as to whether a business license
20 should be issued or denled, and I challenge Mr. Radinsky to
21 p01nt to a section that refers to an applicant's intent.
22 The application itself doesn't even ask for
23 what particular products are going to be so] d. So J woul d
24 object on the grounds of relevance.
25 MR. RA.DINSKY: J withdraw the question. Let me
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ask another question to Mr. Nitti. Are you going to
2
instruct him not to answer any questions about the sale of
3 parklng meter covers?
4
MR. NITTI: Ask Mr. Beneke the questlon,
5
Counsel.
6
MR. RADINSKY: Well, I already asked. Okay,
7
fine.
8
(Pause. )
9
BY MR. RADJNSKY:
10
Q
Late last year, Mr. Beneke, were you in the
11 business of selling parklng meter covers?
12
MR. NITTI: Objection. I'd exercise the Fifth
13 Amendment privilege and the privilege under Section 940 on
14 behalf of my client.
HEARING EXAMINER WINE: Sustained.
15
16 BY MR. RADINSKY:
17
Q
Very well. Mr. Beneke, do you recall when a
18 City inspector came to -- strike that.
19 Do you l~ve at 1323 12th Street?
20
A
Yes.
21
Q
Do you recall late last year when a City
22 lnspector came to your residence and spoke- Wl t.h you?
23
A
Yes.
24
Q
What did he speak with you about?
25
MR. NITTI: ObjectIon. Hearsay.
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HEARING EXAMINER WINF.: Overruled.
[
2
THE WITNESS: He did not come and speak with me
3 per se. He gave me a document.
4 BY MR. RADIN SKY:
5
Q
What document did he give you?
6
A
A citation.
7
Q
A citation for what?
8
MR. NITTI: Objection. Best evidence rule.
9 The Clty has possession of the original cltation, and could
10 produce that citation at this hearing. Counsel is asking
11 for the contents of the document. The document, itself, is
12 the best evidence of what It says.
13
MR. RADINSKY: Well, my reBponse is that he's
14 being pvasive as to what they talked about. I'm trying to
15 get at it in a more round-about way, since that's how the
16 witness wants to proceed. I would prefer if he just told me
17 what the substance of the conversation waR.
18
HF,ARING EXAMINRR WINE: It"s overrulpd. The
19 content per se isn"t necessarily being admitted at this
20 t.ime.
21
THE WITNESS: Your question?
22 BY MR. RADINSKY:
23
Q
What was the citation for?
24
MR. NITTI: Objection. Same objpction.
25
HEl\RING EXAMINER WINE: Overruled.
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THE WITNESS: It was a citation saYIng I was
violating 6001 of the Code.
BY MR. RADINSKY:
Q Okay. And did the person who came out there
explain to you how you were violating that section?
A No.
Q Okay. What typE'! of business were you engaged
in that was the subject of any discussion with the City
inspector that day?
A There was no discussJon.
Q He didn't say anything to you? He Just gave
you the cItatlon and left?
A Yes. He told me he was directed to come to me
and give me the citatlon.
Q Okay. Now, other than this encounter with the
Clty inspector late last year, did you have any
communlcations with any other Clty representatives about
your conducting husiness 1 n the Ci t.y of Santa Moni ca?
MR. NT'l'TI: Objection on the grounds that the
question is too broad in scope. The City knows that Mr.
Beneke already has a business license for a travel agency.
There's a -- The scope of the question is extraordinarily
broad. It's not limited as to time, and it's not leading
into a subject matter (indiscernible).
HEARING EXAMINER WINE: Would you rephrase the
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1 question.
2 BY MR. RADINSKY:
3 Q Did YOIl have any discussions with City
4 repreBentatives, other than this Inspector late last year,
5 about any bus] ness you were ~onductlng that the City
6 TPprpsentatives claim was improper?
7 HE^RING EXAMINER WINE: Okay. What did you
8 want to state for the record, Mr. --
9 MR. NITTI: We can state for the re~ord that
10 Mr. Beneke had privjleged settlement discussions with the
11 City Attorney's Office. He did have discussions with that
12 representative of the City, but those discussions aTe
13 privileged as to the settlement discussions and no questions
14 will bp answered regarding the content of those discussions.
15 MR. RADINSKY: Well, are you maint.ainlng that
16 any discussion with respect to any potential violation at
17 that time constituted a settlement discussion?
18 MR. NITTI: We're maintalning that the City
19 contacted Mr. Beneke about resolving the matter, and I
20 attended a meetIng WIth Mr. Beneke, and we discusspd variouB
21 ways to settle the matter. and that those were settlement
22 dj flCUflSi ons and as SllCh pri vi 1 eged.
23 BY MR. R~DINSKY:
24 Q Okay. I don"t want to ask you about the
25 settlement djscusslons, Mr. Beneke. Prior to any settlement
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1 djscU!'~sions that Mr. Nitti has just. described, did you have
any communications with anyone from the City Attorney's
2
3 Office about you being in v101atJon of City law lD
4 conduct ing a bus i ness?
5
A
Yes.
6
Q
Okay. Who did you talk to at the City. if you
7
remember?
8
MR. NITTI: Objection. The communication is
9
not specif1ed as whether it was writing or oral, so Mr.
10
Radinsky is assuming a fact not in evidence.
11
BY MR. RADINSKY:
12
Q
Who did you communicate with at the City, if
13 you remember hi s name?
14
A
(No response.)
15
Q
Was it Kimberly Shelton (phonetic)?
16
A
Klmberly? No, it wasn't.
(Indiscernible. )
17
Q
That's not what J'm asking you. J'm asking
18 you. other than the settlement meet.ing that Mr. Nitti has
19 descr1 bed, who did you communicate wi th from the Ci ty
20 Attorney's Office about any possible v101at1ons of City law?
21 I'm trying to refresh your memory by suggesting 1t may have
22 been K]ffiberly Shelton.
MR. NITTJ: J'll object again on the grounds
23
24 that he's assuming a fact not in evidence. The last
25 question was: Who aid you communicate with from the City?
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This question is: Who did you communicate with from the
City Attorney's Offlce? There's no evidence or there's no
fact that Mr. Beneke communJcated with the City Attorney's
Office, other than the settlement discussion.
MR. RADTNSKY: I withdraw the question.
{Pause. }
BY MR. RADJNSKY:
Q Why did YOll file the business license
application reflected in Exhibit 1?
A So I can conduct a business by mail order.
Q Okay. And when the inspector carne out and
cited you, he clted you for conducting a business without a
license, correct?
A
He cited me for conducting -- for violation of
6001.
Q Tn other words. conducting a business without a
ljc~nse, correct?
MR. NITTI: Objection. He's aSking my client
to make a legal conclUSlon as to the meaning of 6001, and
I'd further object, it's argumentative.
HEARING EXAMINER WINE: He can answer.
THF. WITNESS: The citation said -- Well. the
c]tation says 6001 on it. It doesn't go and explain what
(indjscerniblel.
II
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BY MR. RADJN'SKY:
Q Well, if you want to be answerlng quest.ions
thi sway, when yOll went. j n to fi] e your appl ieati on in
Exhibit 1, was that in any way motivated by havlng been
cited by the City inspector?
MR. NITTI: Objection. Irrelevant. Further,
I'll obJect on the Flfth Amendment grounds.
HEARING EX~JNER WINE: Sustained.
BY MR. RA.DINSKY:
Q Well, I want to come back to this issue of the
business hy mall order. You just testified that the reason
you filed Exhibit 1 was because you wanted to conduct a mail
order buslness, correct?
A Yes.
Q Can you name one item that you jntended to sell
by mail order when you submitt.ed this application?
^ Computers.
Q Computers?
A Yes.
Q Can you be more specific? What kind of
computers?
A
Q
(Tndiscernible), modem, software.
Okay. Any other items you had intended to
sell?
MR. NITTT: Objectlon. Irrelevant.
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HEARING EXAMINER WINE: Overruled.
MR. NITTI: 1']1 further object on the grounds
of Fifth Amendment and the Evidence Code Section 940.
HEARING EXAMINER WINE: Well, with respect to
anything that's the subject of ongoing crimina] proceedings,
your objection is well taken and sustained. Tn regard to
any item that -- any other item of the mail order business
or of the nature of the mail order busIness that Mr. Beneke
was planning on 8e111n9, it's overruled.
You can answer it with respect to any 1tem
other than parking meteT covers or any other item of an
elicit nature for which you have been charged or may be
charged. Is t.hpl'e anything besides computer manit.ors,
modems and -- Is there anything else which is not the
subject of ongoing criminal litigation that you intended to
sell?
THE WITNF.SS: Anyth1ng that I could make a
profit on. J had a state sales tax resale number.
BY MR. RJ..DINSKY:
Q Okay. That's not what r'm asklng. I'm asking,
at. the time you :mbmltted the application in December of
'91, at that time, did you have any other specific items,
other than parking met.er covers or computers, that you
intended to sell by mail?
MR. NITTI: I'll have defined -- I mean, that's
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an Jmpl"lCat.lon in the question t.hat he was in1.ending to sell
things other
MR. RADINSKY: T said other than that.
MR. NTTTI: Well, I don't want any ambiguity on
the record.
HRARTNG EXAMINER WINE: It will not be deemed
an admission that you intendpd to sell parking meter covers.
MR. NITTI: Okay. Fine. Thank you.
THE WITNESS: I sell books.
BY MR. RADINSKY:
Q Books?
A Yes.
Q By mail?
A. Yes.
Q And so prior to sUbmitting this application,
had you been selling books by mail?
MR. NITTT: Objection. Irrelevant. Not
relevant to the issue of the application.
HEARING EXAMINER WINE: Overruled.
MR. NITTI: Then, I'd inquire of the Examiner
as to what would be tne relevance of Mr. Beneke's past
activities as to applying for a license? J think it's Just
cluttering the record at this point.
HEARING EXAMINER WINE: Well--
MR. RADTNSKY: Well, it's not his past -- He
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testified that that's wbat he intended to do in sUbmitting
hlS application, but, by definition, it"s relevant.
HEARING EXAMINER WINE: It"s reJevant to tbe
entire picture that 1"m trying to draw with Mr. Bencke"s
proposed business and the businer:;s that he was operating.
MR. NITTI: Well. then I'll object on the
grounds of 940 and the Fifth Amendment, b~cause if Mr.
Bpncke had sold other ltems without a business license, that
"Would be a criminal act in the City of Santa Monica, and my
client exercises his prIvilege against self-incrimination.
HR^RING EXAMINER WINE: Well, if it"s reph~ased
as to what items that he was lntending to sell, would that
cure your objection?
MR. NITTI: Yes. and I think that's been asked
and am~we:red.
HEARING EXAMINER WINE: Well, were there any
other items?
BY MR. RADINSKY:
Q Okay. Well. I haven't asked that yet. But
other than books and computers and anything that might have
to do wtth parking meters, which T'm not implying you
inLended, djd you intend to sell any other items by mail
~hen you submitted this application?
A Yes.
Q What?
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A Travel related supplies.
Q Travel related supplies?
A Uh-huh.
Q That's yes?
A Yes.
Q Now, you already have a business license as a
travel agent, is that correct?
A I have a business licensp. for a travel agency.
Q Okay. So you int~nded to sell items that were
related to that business under the umbrella of this new
license?
A Muong 0 ther products. yes.
Q Okay. What other products, besides the ones
you've already mentioned?
A (Indiscernible.)
Q That's not what T'm aSking. I'm asking for you
to specu] a t.e
HEARING EXAMINER WINE: If there are no other
ltems that. you had a present intention to sell, you can just
answer no.
THE WITNESS: Okay. No.
BY MR. RADJNSKY:
Q Okay. I'm going to ask you a different
question. As of the time you submitted this application,
Exhibit I, in December of '91 ~- Prior to the application.
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In tbe City of Santa Monica, had you sold computers, books
or travel related items through the mail?
MR. NITTI: Objection. Fifth Amendment and
Section 940 of the Evidence Code.
HEARING EXAMINER WINE: Sustained.
BY MR. RADINSKY:
Q Now, let's take a look at the writing in the
middJe of Exhibit 1, just above your signature. You
testifJed that's your writing. correct?
A That is correct.
Q Now, when you wrote th1s on the appljcatlon.
was it your position that the buslness l1cense app]jcat.ion
was not necessary?
MR. NITTI: Objection. He's asking for a legal
conclusion or contention, rather than a factual answer. Mr.
Beneke wrote that on his attorney's advice.
MR. RADINSKY: Well, the advice on which you
wrote It is irrelevant. I'm not aSking about those
communIcations. The re]evance is obvjous. If he Intends to
conduct a business wjthout regard to City law, that's
relevant as to whether the license should he granted.
HP.~RING EXAMINER WINP.: Well, his --
MR. RADTNSKY: And his intent js highly
relevant..
REARING EXAMINRR WINE: Well. in the ~ay that
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the question was phrased, you were technically asking him
for a legal conclusion.
MR. R~DTNSKY: Well, I wasn't -- I didn't mean
to. T don't care about. the legal side of that question.
lJet me ask 1. t a di fferent way.
HEARING EXAMINER WINE: Okay.
BY MR. R~DTNSKY:
Q When you filled out this portion just above the
signature on Exhjblt 1, was Jt your understandlng in
conducting the buslness that you had l.n your mind at the
time that you did not need a bUSlness license to start that
business?
MR. NITTI: Objection. Mr. Beneke's
understandings are Jrrelevant to this proceedlng. Mr.
Beneke supplied an application. It doesn't matter what Mr.
Beneke understood. The Examiner has t.o make his decision
based on the contents of the application and based on what
th~ CJty presents.
HF:~RING EXAMTNER WINE: Well, but you know, I'm
not sure T understand what that means. T mean, what thlS
means. So I think it is --
BY MR. RADJNSKY:
Q Well, in that case, let me ask a different
question to clean up the record.
Can you explain to me what you meant by this
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writing here in Exhibit 1?
MR. NITTI: Mr. Beneke did that on his
attorney's advice. T don't even know if he knows what it
means.
MR. RADINSKY: Well, he can say that if he
doesn't know.
THE WITNESS: Well, I filled that out, you
know, on the recommendation of Mr. Nltti to present an
application to the city for a husiness license.
BY MR. RADINSKY:
Q Okay. That's not what T'm asking. I'm not
asking why you wrote It. T understand it was on his
recommendation. T'm asking If you can interpret what this
means, as you did wrIte It? Do you know what it mean~?
~ The legal ramification or something that would
be beyond for me to interpret?
Q No. I'm not asking for a legal ramiflcation.
I'm just aSking -- Th~se are words that you wrote with your
hand. I'm asking if you have an ldea what they mean, since
your wrot_e them?
A I was directed to put them on the form.
Q So you don't know what they mean?
A I didn't need to know what they meant.
Q We]], that doesn't answer my question.
HEARING EXAMINER WINE: That's non-responsjve.
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Do you know what they mean?
THE WITNESS: T can read English. Yes.
BY MR. RADINSKY:
Q Okay. I'm just asking jf you can interpret
what this means?
MR. NITTI: Objection. Mr. Beneke's
7 interpretation is irrelevant. What relevance iR hlS
8 interpretation today as to what that means?
9 MR. RADTNSKY: Becaus~ one of the grounds for
10 denying his application was that this precise passage was on
11 1t, and if we can't get an answer from somebody as to what
12 the 1ntent is, that there's a whole host of various
13 conf)jct1ng arguments you may he reserving by putting this
14 in here, that in itself should be enough of a ground to deny
15 hJ s appl ieati on.
16 MR. NITTI: If you want, I'll stipulate as to
17 what it means. I t.o] d Mr. Beneke t.o put it there. He I s
18 test1fied under oath as to that, and J']l tell you what it
19 means and we "ll he bound by it.
20 HEARING EXAMINER WINE: Well, you can tell me
21 what it means, hut whether or not that ends the inquiry is
22 another matter. What does You as hj s attorney 1 n
23 directing him to fill it out that way, what is thp. jntent by
24 that?
25 MR. NITTI: The intent of the words is not an
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admisBion. Itls so that the city cannot use this in any
crimina] proceeding against him or in any civil proceeding
against him. Mr. Beneke, on my advice, contested the City's
position that a license is necessary to conduct certain
activities, and he wants to reserve his right to continue to
contest that, because the Clty has a policy of not requiring
licenses fOT ancillary actjvitJes that aTe ancillary to an
already licensed buslness, and Mr. Beneke already has a
license.
So Mr. Beneke contested its necessity, filed it
under protest, and stated it is not an admissJon. This was
the only way that Mr. Beneke could try t.O comply with what
the City perceives 1S a requirement, yet still reserve his
rights to contest the City in a criminal proceeding and a
civJ} proceeding.
So it's purely a legal phraseology so that Mr.
R~ncke can exercise his rights, and nothing else.
HEARING EXAMINER WINE: So let me try to
lmderstand you. Wben you say that thp. application is filed
wLth the rese~vation of rights to contest its necessity, you
are stating for the record that means that since he's
already licensed, he can car~y on ancillary activity without
the necessity of an additional license?
MR. NITTI: That's correct. as a policy of the
Ci t.y .
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HEARING EXAMINER WINE: That's your position?
MR. NITTI: Yes, and that's why -- and we have
simply -- He did apply, but we have reserved the right
Mr. Beneke has testified that he was going to sell travel
related material, and he's a travel agent. Mr. Rencke
wanted to reserve the right to contest the requirement that
he actually have another separate license faT that.
HEARING EXAMINER WINE: And that would he with
respect to the travel related material?
MR. NITTI: Yes. Well, the City's definition
of ancillary is unwritten, and Mr. Beneke is Just trying to
reserve his rights and does not want the applicatlon for a
l]~ense to be deemed a concession. But bets trying to
comply with the City requirements as best as possible.
MR. RADINSKY: I would like to request a
five-minute recess. I'm just about done. I may have one
other witness, which would take all of five minutes.
HEARING EXAMINER WINE: We'll stand in recess
for five minutes.
(Whereupon, a short recess Wa~ taken.)
HEARING EXAMINER WTNE: Okay. We're back on
the record.
MR. RADINSKY: J have a couple more quiC!k
questions for Mr. Beneke.
HEARING EXAMINER WINF.: Okay.
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BY MR. RADTNSKY:
Q Mr. Beneke. you do rec.~ll a meeting taklng
place with your lawyer and one of the City's lawyers late
last year regarding this matter, correct?
A Regarding whjch matter?
Q Well, this matter that brought us here today,
your business and the business license fOT selling.
A No. I made the business license application
after that meeting, so (indiscernible).
Q Okay. Do you recall a meeting late last year
wi th you, YOl1r ] awyer, and a lawyer from the ci ty?
A Yes.
Q Okay. Was that approximately within one or two
days of the time that the inspector came out and cited you?
A Not one {indiscernible}.
Q The meeting with the lawyers?
A Yes.
Q Okay. lmd how long in reI a tion to the
inspector citing you was it that you went in and filed
Exhibit 1?
A That afternoon.
HEhRING EXAMINER WINE: I didn't understand the
question. What. 'Was the question?
MR. RhDTNSKY: Well, in other words, the
jnspt?ctor came out and cited him. how long after that was it
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that he filpd the appli~at10n, and you said it was the same
day?
THE WITNESS: Yes.
MR. RADINSKY: I have no furthpr questlons for
him.
HEARING EXAMINER WINE: Do you have any
qUf>stions?
MR. NTTTI: T have one question for Mr. Beneke.
CROSS F.XAMTNATTON
BY MR. NITTI:
Q Di d you pi ck up t,he appl icati on for a busi neBS
l1cense the day before the inspector cited you?
A Yes.
MR. NITTI: Thank you.
REDIRECT EXAMINATION
BY MR. RADINSKY:
Q Why did you pick up an application for the
llcenBe?
MR. NITTI: That question has been asked and
answered.
MR. RADINSKY: No, I don't believe so.
HEARING EXAMINER WINE: r don't believe so.
THE WITNESS: There was
It was Rome
relevance to do with the meet~ng that J attended with the
City officials.
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BY MR6 RADJNSKY:
2 Q Okay. Were you advised to go get an
3 applicatlon by the City?
4 MR6 NITTI: Objection6 That's part of the
5 settJement djscussjon6
6 MR. RADINSKY: Well, as to this settlement
7 discusslons objection, 1 don't see ; t.' s heari n9 on a meeti ng
8 as to whether he has a buslness license or not. The whole
9 purpose of that prlvilege is to keep out dollar figures and
10 not preJudice a jury.
11 HEARING EXAMTNER WTNE: Well, I think --
12 MR. RADINSKY: It has no bearing here.
13 HEARING EXAMINER WINE: -- the provision ]n the
14 EVl dence Code that. deal s wi th set.t.J ement discussions, that
15 has to do with the discusslons of settlement, and can't be
16 admitted to prove liabilit.Y6
17 MR. RADINSKY: Or amounts. That's the --
18 HEARING EXAMINER WINE: We]]--
19 MR. RADINSKY: That's not what they're being
20 offered for.
21 MR. NITTI: Under the Evidence Code, they're
22 totally privileged, all communications.
23 HEARING EXAMINER WINE: I don"t believe that.
24 Let"s go off the record and find the EVJdence Code6
25 (Discussion held off the record.)
FO"lr.A2
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1
HEARING EXAMINER WINE: We're back on the
t
2
record, and the last question has been withdrawn by
3 Mr. Radinsky, and there are no further questions of this
4 witness, Mr. Radinsky?
f
5
MR. RADINSKY: Correct.
6
REARING EXAMINER WINE: Anything further, Mr.
7 Nltti?
,
l
8
MR. NITTI: No. If you'll grant me a moment
9 there.
10
HEARING EXAMINER WTNE: Very well. Off the
11
record.
12
(Discussion held off the record.)
13
HEARING EX^MINER WTNE: On t.be record.
14
MR. NITTI: T have a few questions of Mr.
15 Beneke.
16
HEARING EXAMINER WINE: You may proceed.
17 RECROSS EXAMINATION
18 BY MR. NITTI:
19
Q
Mr. Beneke, on December 6, 1991, did you apply
20 for a business licenBe from th~ City of Santa Monica?
21
A
I th10k it was December 6th, December 6th Or
22
December 7th.
23
Q
And approxima tely around December 6t.h, then?
24
A
Yes.
25
Q
Ts Exhibit 1 a copy of the application that you
FORM 2
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filled out?
A Yes, it is_
Q ^nd was that submitted on December 7th, the
date on the applicatJon?
~ I believe it was. yes_
o And did you write the words "mail order" on the
appl1cation?
A Yes. I wrote the words "mail order. I.
o And 10Ihen you fin::;t wrote the words "mail
order," was tbe application accepted at the counter with the
words "mall order" on It?
A No, it was not.
o Why do the words "general merchandise" appear
after the words "mail order"?
A Jennifer from the business office, directed me
to put those words on there.
HE^RJNG EXAMINER WINE: Let's go off the
record.
(Discussion held off the record.)
HEhRTNG BXAMTNRR WINE: On the record.
BY MR. NITTI:
Q Okay. Going back. why did you wrlte the words
"general mer-chand) se"' on the appl ication?
A Because I was told the application was not
accpptable wi thout t.he words IIgeneral mer~handi se"' after
FORM 2
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"mail order."
Q Did anyone ask you, at the business license
counter, at the t.i me you submi tted t.he appl i cation, what you
planned to sell?
A No.
Q Okay. And did you tell anyone what you planned
to s€'11?
A No.
Q Okay. And were you prepared to tender the
business license applicatIon fee at that tjme?
A Yes.
Q And you have not yet received the business
)icense, is that correct?
A
That's correct.
15 MR. NTTl'I: NothlDg further.
16 REDIRECT EXAMINATION
17 BY MR. RADINSKY:
18 Q You test1fied that you didn't tell anyone what
19 you planned t.o sell. Does that mean you never discussed
20 with anyone from the City at any time what you planned to
21 se] 1 in conjunction wj th a business 1 j cense?
22 A Correct.
23 Q Okay. Not just the people at licensjng, but
24 anyone from the City at any time?
25 A Correct.
FORM 2
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Q You never had any dJscussions about what you
planned to sell?
A Correct.
MR. RADINSKY: I have nothing further.
HEARING EXAMINER WINE: Anything further, Mr.
NittJ?
MR. NITTI: Nothlng further. except closing
argument.
(The wltness was excused.)
REARING EXAMINER WINE: Does the City rest?
MR. RADINSKY: Yes.
HEARING EXAMINER WINE: You "re not presenting
anyt.hing?
MR. NITTI: I'm not -- No, I'm not going to
present anything. We're ready to proceed with closing
arguments.
MR. RADINSKY: Before closing argurn~nt, I just
18 want an llnderstam'hng. If we"re subm:itt-.ng writt.en papers,
19 either oral or written, l'd like to (indiscernible).
20 MR. NITTI: I'm prepared to go ora] right now.
21 HEARING EXAMTNER WINE: So YOIJ don't want the
22 opportunity to fi]e anything in writing?
23 MR. NITTI: That's correct.
24 MR. RADINSKY: That"s fine with me.
25 HEARING EXAMINER WINE: Okay. You may proceed,
FORM 2
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Mr ~ Nj t. t. i ~
CLOSING ~RGUMEN'I' ON BEHALF OF i\PPEIIL~NT
MR. NITTI: First of all, I'd )ikp t.o point out.
that the document with the picture of the parking meter
given by Mr~ Radinsky has not been admitted into evidence.
REARING EXAMINER WINE: I'm aware of that.
MR. NITTI: And J'd like to havp that document
returned, so it's not --
HEhRING EXAMINER WINE: It will be returned.
MR. NITTI: -- part of the rpcord~
REARING EX~INER WINE: It's not part of the
record~
MR. NITTI: The issue of MuniCIpal Code Section
6024 has heen addressed. 6024 has been djgmJssed by the
Examiner. There's been no showing made to support the
Cj ty' s contenti on of any t.ype of vj 01 atj on under Santa
Monica Municipal Code 3394(d). ~here's been no showing in
that TPspect. 3394(d) talks about destroying or breaking or
impairing the usefulness of parking meters~
First of all, under 3394(d)r the City has made
no showlng of what Mr~ Beneke was planning to sell with the
business 1 icense that. he was applying for.
MR. R~DINSKY: That's not correct. There was
some testimony --
MR. NITTT: May 1 finish my closing argument?
1
73
MR. RADINSKY: That's misrepresentation of the
2 evidence.
3 HEARING EXAMINER WINE: Well, you'll --
4 MR. RADINSKY: I'm a]lowpd to object.
S MR. NITTI: There's been no showing as to what
6 Mr. Beneke p] anned t.O se] 1.
7 MR. RADINSKY: Same objection.
8 MR. NTTTI: There's heen no showing that Hr.
9 Beneke defaced, injured, tampered with, opened, broke,
10 destroyed or impa3red the u~efu]ness of any parking meter in
11 the City. There's been no showing that Mr. Beneke aeted in
12 any way in vio]ation of 3394(d).
13 As to Municipal Code Section 4231, which talks
14 about the fastening of things to pUblic property, there's
15 been no showing made as to what Mr. Beneke planned to sell
16 with the license, other than computers and so on as he
17 already testified.
18 There's been no showing that Mr. Beneke
19 fastenf>d anything to any public property. whjch is required
20 under Municipal Code Section 4231. There"s heen no showing
21 that Mr. Beneke acted in any way.
22 ~s to Civil Code Section 1770(e), the City has
23 no standing under 1770{e), because the City is not a
24 consumer, which is required under 1770{e). 'T'he remedies in
25 1770(e} are exc]usive to J770(e}. There's injunctive relief
FOFlM2
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and there's damage rellef. Damage relief requires a 3D-day
notice to Mr. Beneke if the City intends to exercise
well, the City -- if any person intends to exercise any
rights under 1770(e). There's been no showing of any
misrepresentation by Mr. Beneke. 1770(e) simply doesn"t
apply.
Rusiness and Professions Code, Section 17200
and 17500, there"s been no showing by the City as to what
Mr. Beneke planned to sell that was improper, as to what the
effect of what Mr. Beneke planned La sell would he, and
there's nothing in eVldence as to what Mr. Beneke planned to
sell _
So on those grounds, we would say that 6024
basically addresses the entire case. Upon 6024 being denied
as grounds, that's the end of the City.s case. But as part
of c)osing argument, we've addressed various othpr sections
and showed how the City.s lack of evidence and failure to
prove its case would require that the City -- that Mr.
Beneke prevail and the City not prevail on every single one
of the other Rections cited by the City.
The City tUrnH to 6001 to justify its posltion.
but. 600] does not appl y j n thi H context., and waf: not ci t.ed
by the City in its Notice of ~ction.
Finally, the appeal provisions give the
Examiner the right to deny a license. That.s in Section
FORM 2
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6072, Sub B; however, 6072, Sub B, was not cit.ed by t.he Cit.y
in its Notice of Action, because 6072, Sub H, has its own
standards for denial of a license, and in any event, this is
not a denial -- we"re not talking about a denial of license
by a Hearing Examiner. We're talking here about the denial
of a license by the City and the Hearing Examiner is hearing
the case. So 607?(bl does not apply.
We contend that the City was wrong in denying
Mr. Beneke a license, and Mr. Beneke is entitled to h~s
business license that he applied for, and Mr. Beneke, as
before, now stands ready to tender the appropriate fee and
the payment.
HEARING EXAMINER WINE: Mr. Radinsky?
CLOSING ARGUMENT ON BEHALF OF THE RESPONDENT
MR. RkDINSKY: First of all, as to the merits
of this case, whJch Mr. Nitti correctly points out, for the
most part were not addressed as a result of his cljent's
Fifth 7unpndment assertion.
I'd just point out that in stressing the legal
st.rategy Mr. Rencke bas t.aken of dancing around the issues
and increasi.ng the number of times we go around and around
on a]} these different forums
HEARING EXAMINER WINE: Go ahead.
MR. RADJNSKY: A]l I can say in response to
that, is that we will get to the issues eventually, and tt's
FORM 2
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up to Mr. Beneke when we get to that.
~s to the reservatlon of rights clause, which
has been already argued, lt most definitely is within the
scope of this denial. There was testimony that the
reservation of rlghts clause was put in there on the advice
of counsel, jn close proximity in time to meetings with the
City Attorney's Office and being cIted by the City for
operating without a license, and on its face, that testimony
supports the basis fOT denying this soJeJy on a reservation
of rights clause.
Tt is not proper to operate a busjness or
anticipate that you're going to operate a business without
regard for having to have a license. You definitely can't
have it both ways. The proprIety of the reservation of
rights clause in itself may be a legal matter to be
addressed on some other day. But the City's right to deny
an application on the basis that someone saysl "I don't have
to fJll this out and it's not necessary, it's not an
admission, and r reserve all rights," the City clearly has
that rJght under 600], and under itR power to uphold its own
laws in the application process.
That. ground alone is RufficJent. for denying
this. I think it's unfor-tunate that Mr. Benck~ has chosen
the course of immediately requesting a hearing, when the
City merely asked him to clean up his application, so that
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he does not have a valid application pending for the Hearing
2 Exami ner to rule on.
3 FLnally, as to 6072{b}, which glves the Hearing
4 Examiner hearing authority, I thank Mr. Nltti for remindlng
5 us of that section, because that's an additional ground on
6 which the Hearing Examiner, totally apart from the Notice of
7 ~ction, has the inherent authority to uphold the denial of
8 an application that is improper, and on its face, this
9 application is improper because of the reservation of rights
10 clause.
11 As T said, if he doesn't want to address the
12 merlts of what the business really was, that's his
13 prerogative. We won't get to that issue in this hearing. I
14 can see, however, on its face, thlS reservation of rlghts
15 clause was improper and the application should be denied,
16 and at the very least, he should be required to submit a
17 proper application.
18 Thank you.
19 MR. NITTI: May I make a short rebuttal only?
20 HEARING EXAMINER WINE: Sure.
21 REBUTTAL ARGUMENT ON BBHAT.lF OF THE APPETJLi\NT
22 MR. NITTI: As to the reservation of rights
23 clause, Mr. Radinsky misinterprets the reservation of rights
24 clause as Mr. Beneke somehow not applying fo~ a license.
25 The fact is Mr. Beneke did apply for a license and did, so
FORM 2
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to speak, bow down to the City and say, "Hen~, I will apply
tor a license." Mr. Beneke simply reserved the right to
contest the need for the license for propriety as stated 1n
the clause at some future date.
But the City -- To the extent the City wanted
compliance or the City wanted a license to conduct business
activlties in the City, Mr. Beneke did, in fact, tender the
appropriate application. It's our contention that he is
allowed to reserve his rlghts.
As to the lssue of the reservation of rights,
which the City is now turning to, I'd remind the Examiner
that we did state for the record that we're prejudiced if
the City is intending to rely on that ground at this time in
the hearing for reasons stated earlier, that we thought that
it was clear that that was not a ground that the C1ty was
relying on.
As to the last point that the Hearing Examiner
has the inherent right or has a right to deny a license, as
we said, that was not eited 1.n the City's grounds for
action, which interestingly enough was issued after Mr.
Beneke appealed, and the City had every opportunity to cite
that section in their Notice of Action. but chose not to.
HEARING EXAMINER WINE: Isn't that just a
provjslon of the substantive provision of the law? I mean,
I don't have 6072(b} in front of me. but where this is a
7q
1 denial of an application, isn't a hearing provided for, and
2 then, the Hear~ng Examiner has the authority to grant or
3 deny an application? Isn I t that just
4 MR. NITTI: I would say, if the City had stated
5 that in their Notice of Action, that they were going to
6 apply to the Examiner for that denial -- because the
7 stdndard in 6072 1S d1fferent than the standard in 6024, and
8 the question is: WhlCh standard is my client supposed to
9 meet?
10 HEARING EXAMINER WINE: Well, we just said 6024
11 isn"t applicab1e.
12 MR. NtTTI: Well, that's what I'm saying. Tn
13 other words, 6024 is not -- The standards that we have to
14 meet, my client has to be put 00 notice of, we were put on
15 notice of 6024. We've made our argument. We were not put
16 on notice that the City was going to rely on 6072. In fact,
17 I don"t think the City even knew about 6072, except for the
18 fact that in my zeal to prepare for this case, I found it
19 and raised it, because I'm trying to certa1nly cover -- be
20 cand1d about the various issues that have to be addressed in
21 this case.
22 HE~RING EXAMINER WINE: So therefore you
23 don" t --
24 MR. RADINSKY: So there's no prejudice.
25 MR. NITTI: As to the -- We don"t have
FORM 2
FORM 2
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80
prejudice from the standpoint of -- I'm aware of the
2 section; however, we are prejudiced by the fact that the
3 City failed to cite it as grounds that they would raise In
4 today's hearing that we would have to meet. There's other
5 sections the City could have cited as well. They've chosen
6
not to.
7
Now, I don't have the -- I would be prejudiced
8
if the City were to raise -- My client would be prejudiced
9
)f the City were to raise any of those other sections.
10
We're prejudiced if the City is choosing today to rely on
11
6072.
12
Lastly and in final closing, I would say that
13
in any event, there's no eVldence for the Examiner to make a
14
determination against my client on 6072, because that
15
requires that the denial be in accordance with any
16 app11cable law. The C1ty has failed to show what applicable
17 law would mandate denial of th1s license to my client.
18 Thank you.
HBARTNG EXAMINER WINE: T have one question for
19
20 you, Mr. Nittl, and that is, if you refer to the explanat1.on
21 that was given for what reservation of rights and necessity
22 referred to, you referred to ancillary activities under the
23 license. Can you cite me to where that's located in the
24 Mun1cipal Code?
25
MR. NITTI: It's not. The Mun1cipal Code does
-
.
-
.
81
1 not have a provision that allows businesses to conduct
2 ancillary activities; however, the fact is that businesses
3 do. Barher shops, grocery service jndustrJes sell retai]
items, combs and hairspray and so on, and it's my
4
5
understanding that the City does not require a separate
6 license for this activity. Tt's considered ancillary to the
7 main business, and it's a matter of administrative practice
8 by the City that ancillary items
and that is the reason
9 for res~rvation of rights as seeing the necessity for a
10 llcense.
11
MR. RADINSKY: May I very briefly respond to
12 what the Hearing Examiner asked?
13
HEARING EXAMINER WINE: Sure.
14
MR. RADINSKY: First of all, Mr. Nitti's
15
contention is that the reason this is in here is because
16
there's ancil]ary busjnpss to which h~ doesn"t think he
17 needs a license for. Testimony was about computers, books
18 and travel Rupplies, which by definition are not -- are not
19 a11 ancillary to his travel agency, which is his stannard
20 business. So that whole argument doesn't make any sense
21 from the context of his testimony about what the business
22 waR intended to be.
23 However, we don't even get to that because
24 second of all, Mr. Nitti has not testified, nor would his
25 testimony be relevant, as to his intent of this reservation
FORM Z
82
1 of r1ghts clause. All the City has to go on is Mr. Beneke's
2 signature, Mr. Beneke's writing on the face of this
3 application, which on 1ts face 1S at best highly ambiguous
4 and at least seems to imply that he does not intend to
5 comply with the licensing law.
6 ~]l we have to go on is his testimony. He
7 says, "Well." He gave a lot of evasive answers, but he
8 doesn't really know what it means. His lawyer told him to
9 write it. "Go read it yourself."
10 Fine. The City has read it, and in the City's
11 opinion, it is not proper.
12 MR. NITTI: If T may briefly, just brlefly
13 address just -- and only in rebuttal -- the language on the
14 application actually shows Mr. Beneke's intent to comply.
15 ^fter all, Mr. Beneke's submltting the application. He may
16 be submitting it under protest, but he's submitting the
17 application.
18 The issue of what anc11lary actlvities the City
19 allows, that's a matter of discovery, and that's why we
20 contended we're prejudjced by the City raising this
21 argument, because by the City relying on this argument,
22 which is not (indiscernible) in their Notice of Action, 1
23 have not had an opportunity to take discovery on the City as
24 to their admjnistratlve policy regarding ancillary
25 act1vlties. T can only state what it is for the record, and
FO"IM 2
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83
we would state for the record that that would prejudlce us
2 if the City relies on the reservation of rights clause to
3 try and get the Hearing Examiner to make a decision on that
4 ground.
5 Thank you.
6 MR. RhDINSKY: And I promise this is the last
7 point. He has raised a new issue.
8 On the reservation ot rights clause in Debbie
9 SaIlers' letter, which is in evidence, the request for a
10 hearing is in response to a letter from Debbie SaIlers,
11 wnich says, "This clause is improper. Submi t a new one. t,
12 I can see them arguing that the subsequent
13 Notice of ~ction may have been improperly appended or
14 something, but this argument about prejUdice and how that's
15 not wlthin the scope of this hearing is (indiscernible).
16 'l'hank you.
17 HEARTNG EXAMINER WINE: Anything further?
18 MR. NITTI: Nothing further.
19 MR. RADINSKY: No.
20 HEARING EXAMTNER WINE: If nothing further,
21 this matter is adjourned and the record is closed as of,
22 what, about 12:15 p.m. or 12:10.
23 Thank you.
24 (Whereupon, at 12:10 p.m., the above-entitled
25 matter concluded.)
FORM 2
1
DECLARATION OF TRANSCRIBER
2
3 I, Sharri Cartwright, a duly designated transcr1ber,
4 do hereby declare and cert1fy under penalty of perJury, that
5 I have transcribed the hear1ng, David Bencke vs. City of
6 Santa Monica, wh1ch was duly recorded in the Office of the
7 City Attorney, Santa Monica City Hall, on the 25th of March,
8 1992, and that the foregoing pages constitute a complete and
9 accurate transcript10n of the aforementioned hearing.
10
11
12
sA/J/l/1/' ~/;~J-
Trjfscr1ber ~
13
14
15
16 Dated this 17th day of August, 1992.
17
18
19
20
21
22
23
24
25
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18IS Main ~ 103
sma ManlCa. CA ~
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City of Sema Me.
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2. l~\':> AI'f 4.l1 A ,,~~ l~ Sf...... F, l.I-l} V1'Tti ~ u.... Q..E-~m...ATIO.o.> Cf'
3- A!.L. a.........T:> "'\0 "'....1C'~r rri. "'E~IW """'.... Yj\01 f'S i , A~iJ
. ~ ",.o:.f" ,,~ AO..,1 ..Hll,.J
_ClF....-_OOCl~ Ilk Ii DollIE
12-/'7/<t I
PAM II
" your buslneu IIIoca1ed In s.nta Moruca )'DU mull ~ the fDlicJwlng ql/llltlON.
1 Are chemlcaJs UMd (other lhan consumer produca)? DYes '&{ No
2- Are 'Ill' or the abcMl chem.eals ~ In quantities greater than 55 gallona, SOD pounda, 0_ lI!'fHo
or 200 cubic feet to compreased gas in aggregate qualltitilS?
3.. Are lIlY or the alxwe ChemlCai$ discharged into C tl'It clt)' .-.r or 0 storm drain? O- s No
. Ertef the number of persons working (20 hours or more per _k) &I busl-.
PART III OPTIONAL QUESTION
The toIlOW1ng question will help the City operate lis Women and Mlnornles BU5lntlU
Enlerpn$n Program but it noI a "*C/u.rement lor oblammg a Santa MonIca BUll"", LicenM.
Is your bUllneD owned and conIroIlttcI by women or mlrlorlt)' p.raonI7 D_ ONa
If l'8S. and you wISh 10 be con$ldered ell e poIenllal supplier of goods or ..,..,...
ID the City, complete a "WMBE Directory" Enrollment Form and AffIdaYl\
and llIbmit It with your Business lieense ApplIClltJOn
PART I\' FOR OFFICIAL USE 0N1.Y
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ASSESSUlHT ,.
ACCEPTANCE OF PAYMEh'l' DOES NOT CONSTITUlE ,o,p~ROI/Al OF BUSINESS LICENSE AUTHORIZATION 10 CONDUCT BUSINESS IS
NOT GRANTED UNTIL ISSUANCE OF LICENSE
CIItH
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CITY OF
SANTA
MO:.NICA
CALIFORNIA
.... r. 7'"'
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(In H.l."tL 1Q~1j97~
REQ~EST FOR HEARING BY HE~~ING EXAMINER
This request for hearing is made by:
DAV! D t3'EW(.~
(Name of Person)
DAV\D BENLU
(Kame of BUSlness or Other Entity)
PO gD)( Sb3~
(Halling Address)
SA t-.J T1\ M \) tJ \ If\-
(City)
LA
4 o40~ -sto'3"}
(Zip Code)
~,~ co. \ I betwGt'l\ 7'104.l'In~ ~'60&(W\ Dr
4 4Spm~ q .000Wl o.l\j
wet.L tk...i
(State)
(SIO) 4~-l2~,\
(Telephone Number)
The hearing before a hearing examiner is requested to
contest the following action taken by the City of Santa
Monlca:
De"\~ of ~f:.I'M~\ llL~I'1)'C etfphlM.!f ".,
. ~ .......to\ lS V'l~ 12./" I 'i t - otlutluA
pv.r~...t- -h, SM m( 9 (oolD e\- ~e~
4c1"\~rlJ 1,'1
, I 't'SI"t"t. I umkct"
NOTE: IF THE HEARING IS IN RESPONSE TO SOME
FROM THE CITYr YOU MUST ATTACH A COPY OF THE
TO THIS REQUEST.
Date, 1/'-,/"''--
WRITTEN NOTICE
\\.'RITTEN NOTICE
File this form with:
City Clerk
Santa Monica City Hall
1685 Main street
Santa Monica, CA 90401
(City Clerk will transmit form
fl~
Signature
to City Attorney)
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CITY OF
SANTA
,
MON I C A
CALIFORNIA
LICENSE DIVISION
1685 Main Street
P.O. Box 2200
Santa Monica, Ca. 90406.2200
Telephone (213) 458.8145
January 15, 1992
David Beneke
P.O. Box 3639
Santa Monica, California 90408-3639
Re; Your application for a mail
order business license
Dear Mr. Beneke:
Your Business License Application of December 7, 1991 has a
r'reservation of rights" included in the space listed for "Names
of Partner or principal Officers". Because of this "reservation
of rights", we are rejecting your application. You are free to
submit an application which is properly filled out.
Very truly yours,
"l\. ~
j) :?cr1.0 f. t:~~.
DEBBIE SOWERS
License an~ Permit Supervisor
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CITY OF I
SANTA
CALIFORNIA
MONICA
CITY HALL. 19J.99ib
NOTICE ~r ACTION
TO: David Bencke
~OTICE IS BERESY GIVEN that the CITY OF SANTA MONICA
has ( x) DE~IED C.) SOSPE~~ED () REVOKED your
- ~P?l~cation for business license to conduct mail-order bus~ness.
.
'his action is taken for the facts and reasc>ns set
forth in Attachment A hereto and is taken pursuant to the
authority containe~ in: Santa ~onica Municipal Code f-ections
- .
602~r 3394D, 4231~ Business & Professions Code Sections 17200~
li500. Civ11 Code Section l770(e)
This action is taken by:
John Jalili City Manager
.
You may contest t.he action stated above by filing a
request for a hearing with t.he City Clerk within 10 days of
the date of mailing of this ~otice. If the action concerns
. the suspension or revocation Cincluc!in; non-renewal) of a
license or permit., t.he suspension or revocatioD shall be
stayed pencing bearing ana decision by the hearing ex~~iner.
Failure to request a hearing will bar any other challenge of
the action set forth above. Appeal forms may be obtained in
the office of the City Clerk, 1685 Main Street, Santa Monica,
California.
.
CITY OF SANTA MONICA
By J't:l~.
Ci ty t~anager
:tr"?
DATE Y~ILED: January 27 1992
,
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ATTACHMENT A
The action taken in the accompanying Notice of Action
is based upon the following facts and reasons:
l. The applicant's proposed business consists of selling
by mail covers for parking meters. .Advertisements for the covers,
sent to the public through the mail, imply the covers are legal and
proper and will preclude parking tickets on broken meters, All
of these implications are false. The denial is based on:
1. Municipal Code Section 6024 (business conducted
in violation of state an~ city law);
2. Municipal Code Section 33940 (prohibiting tampering
w1th or 1rnpa1ring usefulness of parking meters);
3. Munic1pal Code Section 423l (prohibiting placing any
type of notice on City property) 1
4. BUS1ness & Professions Code Sections l7200, 17500
(false advertising, unfair competition);
5. Civil Code Section l770(e) (misrepresenting approval,
uses, or benefits of goods).
The names and positions of employees of the City of
Santa Monica who can testify to the facts and reasons set
forth above are:
Neill Lawton, License Inspector
Attachment A
..
" .
. .
4' CITY 01
SANTA MONICA
CALIFORNIA
OFFICE OF THE CITY ATTORNEY
WRITER'S DIRECT DlA.L NUMBER
(310) 458.
8336
BY FAX AND MAIL
January 27, 1992
Tom Nitti
1255 Lincoln, Third floor
Santa Monica, California 90401
Re: Beneke Business License Application
Dear Mr. Nitti:
Enclosed is the official denial of your client's application
for a business license. The grounds for the denial are already
well known to Beneke, and are the subject of ongoing civil and
criminal litigation.
The January 15 letter to Beneke from the Licensing
Department did not address the merits of his application. It
merely stated that the ffreservation of rights" clause was
improper, and requested Beneke to submit a proper application.
Instead, Bencke filed an appeal.
You will receive a Notice of Hearing shortly. At the
hearing, we will get a decision once and for all as to the
propriety of the denial.
trlre
~ DINSKY
Deputy City Attorney
tnltr/adv
CITY H<\LL, 1685 MAIN STREET, SANTA MONICA. CALIFORNIA 90401-3295
. CITY ~
SANTA MONICA
CALIFORNIA
f
i'
OFFICE OF TH:E: CITY ATTORNEY
_'TE.... D1Ascr ~l....l. I'<VM.&ft
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TELECOP%ER TRANBK%SS%OX
DATE SENTI
'1'J:ME SE~ I
Jan. 27, 1992
PLEASE CEL~VER TO: Tom Ni~~i
~ELECCPIER NUMBER! __{____)576-3SB~
T~CMl SANTA MON%CA CZTY ~TTORNEY.. CFFZCE
Adam Rad:l..naky
TELEPHON~ HUHBERe
(2~3) 458-8336
FAX NUMall:.1
I (2~3) 3.S-.727
(~~ ~~.Y, p~.... .z~
3.4-2..2)
NUV-B~~ o~ PAGES,
INCLUDING THIS PAGE: 4
CAPTrON OF po eUME NT I
~.t~.r ~o ~O~ N~~~~ ~~~~~ ~_~_ 2~_ 1QQ2
and ~~t~ce o~ Action
ADor'r:':;OI~AL COKM"ENTal
TRANSMISSION REPORT J
THIS DOCUMENT
WAS SENT
(REDUCED SAMPLE ABOVE)
** COUNT **
# 4
*** SE"lD ***
NO
REMOTE STATION I 0
START TIME
DURATION
#PA13ES
1 2i3 8292533
1-2'7-92
16=24
TOTAL
1 5'7"
4
COMtlENT
ER~CR CORRECT MODE
0:01 57.
4
XEROX TELECOPIER 7021
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tit CITY 0'"
SANTA MONICA
CAUFORNIA
WRITER'S DIRECT DIAL NUMBER
(3l 0) 458-'
OFFICE OF THE CITY A TIORNEY
..
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8336
NOTICE OP BEARING BEFORE BEARING EXAMINER
RE: David Beneke
1I1:g2-2
TO: Tom Nitti
1255 Lincoln Blvd.
Third Floor
Santa Monica, CA 90401
Pursuant to your request, a hearing has been scheduled
before a hearing examiner as follows:
DA7'E:
TIME:
PLACE:
February 19, 1992
10:00 a.m.
City Attorney's Office
City Hall, Third Floor
1685 Main Street, Room 310
Santa Monica, CA 90401
The hearing will commence promptly at the same time
indicated. You should bring with you all witnesses and documents
in support of your position. If you are unable to attend the
hearing, you should promptly contact the hearing examiner by
calling Vicky Cunningham at (213) 458-8336. Continuance will be
granted only upon a showing of good cause as determined by the
hearing examiner. A written request for continuance setting
forth alternative dates for the hearing must be filed in the city
Attorney's Office at least 72 hours prior to the scheduled
hearing.
}
Sincerely, ~
.~- "\,,'\0 0 QQ~~~ 0-l~ l V~~
MI CHAEL E. WINE
Hearing Examiner
cc: Robert M. Myers, city Attorney
John Jalili, City Manager
DATE MAILED: January 28, 1992
*'-1
CITY H.&.LL. 1685 MAIN STREET. SANTA MONICA, CALIFORNIA 90401~3295
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PROOF OF SERVICE
t
~
STATE OF CALIFORNIA, COUNTY OF LOS AN~LES
r am employed in the County of Los Angeles, state of
California. r am over the age of 18 and not a party to the
within action: my business address is 1685 Main street, Third
Floor, Santa Monica, California, 90401.
On January 28, 1992, I served the foregoing document
described as NOTICE OF HEARING BEFORE HEARING EXAMINER on the
interested parties in this action by placing __ a true copy / XX
the oriqinal thereof enclosed in sealed envelopes addressed as
follows:
Tom Nitti
1255 Lincoln, Third Floor
Santa Monica, CA 90401
XX (BY MAIL) I am readily familiar with the City's practice of
collection and processing correspondence for mailing. Under that
practice it would be deposited with the U.S. postal service on
that same day with postage thereon fully prepaid at Santa Monica,
California in the ordinary course of business.
Executed on January 28, 1992, at Santa Monica, California.
(BY PERSONAL SERVICE) I delivered caused to be
delivered such envelope by hand to the offices of the addressee.
Executed on
, 1992 at Santa Monica, California.
XX (State) I declare under penalty of perjury under the laws of
the state of California that the above is true and correct.
____ (Federal) I declare that I am employed in the office of a
member of the bar of this court at whose direction'the service
was made.
dtS c~
VICKY CUNNINGHAM
Type or Print Name
tit
CITY ctt
SANTA MONICA
CALIFORNIA
OFFICE OF THE CITY A TIORNEY
WRITER'S DIRECT DIAL NUMBER
(310)458- 8336
NOTICE OF REARING BEFORE HEARING EXAMINER (CONTINUANCB)
0: David Beneke
BE92-2
TO: Tom Nitti
1255 Lincoln Blvd.
Third Floor
Santa Monica, CA 90401
Pursuant to your request, a hearing has been scheduled
before a hearing examiner as follows:
DATE:
TIME:
PLACE:
March 25, 1992
10:00 a.m.
City Attorney's Office
City Hall, Third Floor
1685 Main Street
Santa Monica, CA 90401
The hearing will commence promptly at the same time
indicated. You should bring with you all witnesses and documents
in support of your position. If you are unable to attend the
hearing, you should promptly contact the hearing examiner by
calling Vicky Cunningham at (213) 458-8336. continuance will be
granted only upon a showing of good cause as determined by the
hearing examiner. A written request for continuance setting
forth alternative dates for the hearing must be filed in the City
Attorney's Office at least 72 hours prior to the scheduled
hearing.
Sincerely,
-"(tr\~~ ~uJL.-u 1 ~ VoQ.f;
HI CHAEL E. WINE ' tJ V
Hearing Examiner
cc: Robert M. Myers, City Attorney
John Jalili, City Manager
DATE MAILED: February 25, 1992
CITY HALL, 1685 MA..IN STREET, SANTA MONICA, CALIFORNIA 90401.3295
-:# --
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..
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e
PROOF OP SERVZCB
STATE OF CALIFORNIA, COUNTY OF IDS ANGELES
I am employed in the County of Los Angeles, state of
California. I am over the age of 18 and not a party to the
within action~ my business address is 1685 Main street, Third
Floor, Santa Monica, california, 90401.
On February 25, 1992, I served the foregoing document
described as NOTICE OF HEARING BEFORE HEARING EXAMINER
(CONTINUANCE) on the interested parties in this action by placing
__ ~ true copy / XX the oriqinal thereof enclosed in sealed
envelopes addressed as follows:
Tom Nitti
1255 Lincoln Blvd.
Third Floor
Santa Monica, CA 90401
XX (BY MAIL) I am readily familiar with the city's practice of
collection and processing correspondence for mailing. Under that
practice it would be deposited with the u.S. postal service on
that same day with postage thereon fully prepaid at Santa Monica,
California in the ordinary course of business.
Executed on February 25, 1992, at Santa Monica, California.
___ (BY PERSONAL SERVICE) ___ I delivered ___ caused to be
delivered such envelope by hand to the offices of the addressee.
Executed on
, 1992, at Santa Monica, California.
XX (state) I declare under penalty of perjury under the laws of
the State of california that the above is true and correct.
____ (Federal) I declare
member of the bar of this
was made.
that I am employed in the office of a
court at whose direction the service
~~~ ~lli~~
VICKY CUNNINGHAM
Type or Print Name
.
.