Memorandum

City of Lawrence

City Attorney’s Office

TO:	David L. Corliss, City Manager Toni Ramirez Wheeler, City Attorney
FROM:	Randall F. Larkin, Senior Assistant Attorney
DATE:	May 28, 2014
RE:	Shots Sidewalk Dining License Appeal

Introduction

On April 23, 2014, after Shots, LLC, had failed to meet an April 18, 2014, deadline to pay the remaining balance due on its Sidewalk Dining License Fee and to otherwise complete its renewal application, the City Clerk denied the renewal application of Shots, LLC, for a Sidewalk Dining License. See City of Lawrence, Kan., Code § 6-1206 (July 1, 2013). On April 28, 2014, pursuant to City of Lawrence, Kan., Code § 6-1213 (July 1, 2013), Shots, LLC, filed a request for hearing, asserting basically that the Notice of Denial was issued in error because it had been granted until April 25, 2014, within which to complete its renewal application. The purpose of this Memorandum is to outline the facts (at least from the City's perspective), to outline the duties of the City Commission at the public hearing, and to present the City's position on the matter.

Factual Background

1. Shots, LLC, originally was granted a Sidewalk Dining License on May 1, 2012. That license expired by operation of law on November 1, 2012. City of Lawrence, Kan., Code § 6-1207(B) (July 1, 2013).

2. Shots, LLC, renewed its Sidewalk Dining License in 2013.

3. On October 15, 2013, the City mailed to Shots, LLC, a letter reminding it that its Sidewalk Dining License would expire November 1, 2013, and that it was required to renew its license before that expiration date. See City of Lawrence, Kan., Code § 6-1208 (July 1, 2013).

4. On October 29, 2013, the City sent Shots, LLC, a second reminder that its Sidewalk Dining License would expire November 1, 2013.

5. On November 1, 2013, the Sidewalk Dining License of Shots, LLC, expired.

6. On January 29, 2014, Code Enforcement transmitted to Shots, LLC, an Order demanding that, by February 14, 2014, Shots, LLC, either renew its Sidewalk Dining License or remove its sidewalk fixtures.

7. On February 13, 2014, after Shots, LLC, asked for additional time, the City allowed Shots, LLC, until February 21, 2014, to pay one-half of its Sidewalk Dining License Fee and until March 14, 2014, within which to pay the remaining balance and to otherwise complete its renewal application (see attached email).

8. On February 21, 2014, Shots, LLC, remitted to the City one-half due on its Sidewalk Dining License Fee.

9. Shots, LLC, did not pay the balance due on its Sidewalk Dining License Fee or otherwise complete its renewal application by March 14, 2014.

10. On April 11, 2014, Shots, LLC, appeared at City Hall and paid the balance due on its City Drinking Establishment License (see attached email).

11. Shots, LLC, did not pay the remaining balance on its Sidewalk Dining License Fee at that time. Rather, Shots, LLC, stated that it would make such payment on April 18, 2014. The City Clerk assented to that extension of time.

12. Shots, LLC, appeared at City Hall on April 17, 2014, regarding its City Drinking Establishment License. At that time, Shots, LLC, neither completed payment of the Sidewalk Dining License Fee, nor requested additional time to make such payment and complete its renewal application.

13. April 18, 2014, came and went and Shots, LLC, did not pay the remaining balance due on its Sidewalk Dining License Fee or otherwise complete its renewal application therefor.

14. On April 23, 2013, because Shots, LLC, had not completed its renewal application in that it had not paid its Sidewalk Dining License Fee, the City Clerk denied the renewal application of Shots, LLC, for a Sidewalk Dining License. See City of Lawrence, Kan., Code § 6-1206 (July 1, 2013).

15. On April 28, 2014, Shots, LLC, filed a Request for Hearing, appealing the denial of its Sidewalk Dining License to the Governing Body. See City of Lawrence, Kan., Code § 6-1213 (July 1, 2013).

City Commission’s Duties

The City Commission makes the final determination on all Sidewalk Dining Licenses. If the request for public hearing involves a Notice of Denial, as it does in this case, the City Commission shall not grant the Sidewalk Dining License unless, at the public hearing, the applicant establishes, by a preponderance of the evidence: (1) that the Notice of Denial was issued in error; or (2) that issuance of the Sidewalk Dining License is in the public's interest. The burden of proof is on the applicant. The Governing Body shall make its decision based on the credible evidence presented at the public hearing and shall make findings of fact sufficient to support its determination.

When hearing the appeal, the City Commission sits in a quasi-judicial capacity. Accordingly, before hearing any evidence, the City Commission must disclose ex parte communications, if any. Also, it would be helpful, in the event of an appeal to district court, to direct staff to prepare findings of fact and conclusions of law.

City’s Position

The issue is rather straightforward. The City asserts that Shots, LLC, after being given several extensions, failed to complete its renewal application for a Sidewalk Dining License on or before the extended deadline of April 18, 2014. Therefore, its renewal application was denied. Shots, LLC, asserts that the deadline was April 25, 2014, and that the City therefore erred in denying his renewal application on April 23, 2014.

Here, despite being given two reminders, Shots, LLC, failed to renew its Sidewalk Dining Application before it expired on November 1, 2013. On January 29, 2014, Code Enforcement ordered Shots, LLC, to complete its renewal application or to remove its sidewalk fixtures on or before February 14, 2014. After Shots, LLC, pleaded its case, the City -- consistent with its treatment of other delinquent licensees -- granted Shots, LLC, and extension until March 14, 2014, within which to complete its renewal application for a Sidewalk Dining License. Shots, LLC, did not comply with that deadline. On April 11, 2014, Shots, LLC, met with the City Clerk to complete its renewal application for a City Drinking Establishment. During that meeting, Shots, LLC, asked for an extension of time of one week, or until April 18, 2014, within which to complete its renewal application form for a Sidewalk Dining License. The City Clerk assented to the extension. Shots, LLC, did not complete its renewal application form on or before April 18, 2014. See City of Lawrence, Kan., Code § 6-1208(D) (July 1, 2013) (a renewal application form is not complete, among other things, until the Sidewalk Dining License Fee is remitted to the City in full). Accordingly, because the renewal application form was incomplete, on April 23, 2014, the City issued a Notice of Denial to Shots, LLC. See City of Lawrence, Kan., Code § 6-1208(E) (July 1, 2013). On those facts and under the City Code, it is the City's position that the Notice of Denial in this case was not issued in error.