CITY AND COUNTY OF DENVER RULES AND REGULATIONS GOVERNING HEARINGS

Board of Environmental Health

  

These rules and regulations are adopted and issued by the Manager of the Department of Environmental Health of the City and County of Denver in accordance with the authority contained in Article II of the Charter of the City and County of Denver and in the Revised Municipal Code of the City and County of Denver.

  1. As used in these rules and regulations, the following terms shall have the following meanings:
    (a) "Board" means the Board of Environmental Health.
    (b) "City" means the City and County of Denver, State of Colorado.
    (c) "Manager" means the Manager of the Department of Environmental Health of the city.
    (d) "Hearing Officer" means any person appointed and serving under the Board pursuant to the City's Charter or ordinances. Except as otherwise provided in these rules and regulations or by applicable ordinance, a Hearing Officer shall have all of the authorities and responsibilities of the Board stated in these Rules.
    (e) "Rules" shall mean these Rules and Regulations Governing Hearings Before and Variances by the Board of Environmental Health.
    (f) "Petitioner" or "Appellant" shall mean any person filing a petition with the Board concerning any matter over or concerning which the Manager has authority by virtue of and in accordance with the City's Charter, ordinances, or rules and regulations.
  2. In the event that any provision of these Rules or the application of any provision to any person or
    circumstance is held invalid, such invalidity shall not affect any other provision or application; and to this end, the various provisions of these Rules are declared to be, and are, severable.
  3. A copy of these Rules shall be made available without charge to persons filing petitions with the Board or who, pursuant to a notice of a final determination of the Manager, have timely sought a hearing or permission to file a written objection contesting the determination. In addition, the Manager shall use his or her best efforts to maintain a current copy of these Rules on the Department of Environmental Health's Website.
  4. A Petitioner shall file a legible original petition with the Manager, with a copy provided to the director of the division enforcing the rule, if known, within thirty (30) days from the date of the decision or from the time of service of any notice of alleged violation, as the case may be. All petitions, briefs and other papers shall be either typewritten or legibly printed; if the letters or figures are faint or illegible, the Manager may refuse to accept the filing. Whenever material is filed by mail and the Manager refuses to accept it because of illegibility, the Manager shall promptly notify the Petitioner of such refusal and the reason for it.
  5. No particular form of petition is required, provided that the following information is included:

    (a) The type of claim or dispute involved, together with the amount of any fee, charge, or other payment or receipt in controversy, and the time during which it accrued or occurred.
    (b) The date of the payment, if any, to the City.
    (c) The reasons the Petitioner believes any determination by the Manager or made pursuant to the authority of the Manager is objectionable, incorrect or illegal.
    (d) If a variance from the applicability of any ordinance, rule, or regulation is sought:

    (1) how the Petitioner will suffer undue hardship if the variance is not granted;
    (2) how a variance, if granted, would not adversely affect public health; and
    (3) how the variance, if granted, would be in harmony with the spirit and purposes of the ordinance, rule, or regulation being appealed.

     

    (e) If appropriate, a drawing, floor plan, or picture should be submitted to further clarify the reason(s) for seeking the variance or appealing the determination.
    (f) The name and address of the Petitioner, and the name, address and telephone number of the legal representative of the Petitioner who is authorized to present the case.
    (g) The signature of the Petitioner or its corporate agent.

    A copy of any written decision or violation appealed shall be attached to the petition if possible. A fee of $25.00 must accompany the petition.

    Upon receipt of a petition and the required fee, the Manager shall assign a case number to it and record the filing of the petition in the docket book.

  6. All hearings or, when a petition is submitted for determination based on written argument and written facts and figures, all examination of such written petitions and papers shall be conducted by the Board, unless the Board, in its discretion, assigns an available Hearing Officer to conduct the hearing or to examine the written material submitted.
  7. Cases shall be set for hearing in the order in which the petition is filed with the Manager; provided, however, the Manager may accelerate cases of particular significance which he or she determines should be advanced on the docket. A petition may be set for hearing at any regularly scheduled Board meeting or at such other time as determined by the Chairperson of the Board, except petitions filed less than three weeks prior to the next regularly scheduled Board meeting may not be scheduled for consideration at that next Board meeting. The Manager may grant continuances at the request of the Petitioner for good cause shown.
  8. The City may file a response to the petition or furnish such information as the City determines to be necessary prior to the hearing or determination of the case.
  9. All rulings and determinations of the Board shall be by the concurring vote of a majority of the members present. 
  10. For good cause shown, the Board may suspend the application of any of these Rules. 
  11. The Board shall determine those claims and petitions that are made in compliance with the requirements of the Charter, ordinances, and rules and regulations of the City. In such case, the Board shall be charged with performing all functions relating to the final determination and order, and entertaining petitions or protests made either orally or in writing as set forth in the Charter, ordinances, or rules and regulations of the City. The Board shall perform those duties and functions necessary and incidental to determining the matter, hearing all evidence, examining all documents, ruling on evidentiary questions, and generally conducting as a hearing tribunal and quasi-judicial proceeding in conformance with the procedures and time limitations set forth in the Charter, ordinances, or rules and regulations of the City, having and exercising all powers given to the Board therein. Subpoenas may be issued by the chairperson or vice-chairperson, as requested by any party. If a Hearing Officer is appointed, he or she shall prepare a written statement of findings and recommendations to the Board, which the Board shall consider prior to making a final decision and determination. The Board is not bound by written findings and recommendations of a Hearing Officer. 
  12. For matters, appeals, and cases in which the staff of the Department of Environmental Health support the position of the Petitioner for a variance from the terms and conditions of an ordinance, rule or regulation, the Petitioner may appear at the hearing before the Board and present evidence and arguments, or may allow a representative of the Department of Environmental Health to present the matter to the Board. However, the Board is not in any way bound to accept the recommendation of the Department or any representative thereof, and the Petitioner's failure to appear shall be considered a final waiver of the right to appear and present evidence and arguments on its own behalf. Comments from the public shall be heard after all parties' presentations are complete. The Board shall hear comments from persons supporting the petition first, then comments from persons opposing the petition. 
  13. For matters, appeals and cases in which the staff of the Department of Environmental Health oppose the position of the Petitioner for a variance from the terms and conditions of an ordinance, rule or regulation, those in which any other determination made by the Manager or pursuant to the authority of the Manager is being appealed, and those in which any other matter is contested, the Manager must inform the Board and the Petitioner of the Department's opposition at least two weeks before the scheduled hearing. The following rules shall apply to hearings on contested matters:

    (a) An individual may represent himself/herself or be represented by an attorney admitted to practice in any of the United States; however, a corporate Petitioner must be represented by an attorney admitted to practice in any of the United States unless the Board allows a corporate officer to represent the corporation.
    (b) The Board shall assign the time and place for hearing the case, unless it is submitted on written brief and supporting material, and shall notify the Petitioner of the hearing date.
    (c) A Petitioner may choose to submit the case on written briefs, supporting data, affidavits, or stipulated facts rather than through oral testimony. Such an election shall be made by the Petitioner by filing a written notice with the Manager with the petition or as soon after the filing of a petition as possible but not later than ten (10) business days (i.e. excluding weekends and holidays) prior to any scheduled hearing. If the Petitioner chooses to submit the case in this manner, the Respondent shall not be allowed an oral presentation but also must submit its position in writing.
    (d) At the request of any Board member or upon a motion from any party, the Chairperson of the Board may require the parties to file a prehearing statement. Prehearing statements must be submitted at least one week before the hearing at which a Petition will be presented to the Board. A prehearing statement shall present the issues raised by the petition, agreed and disputed facts, copies of exhibits not included with the petition, names of witnesses with a brief statement summarizing their testimony, and an estimate of the time necessary to present the Petitioner's evidence only, including a request for more time than allowed by Rule 15 if required. The purpose of a prehearing statement is to inform the Board and the parties of the issues to be presented, the number of witnesses and exhibits to be presented, the time required for the hearing, and to disclose generally the nature of the testimony to be presented to allow a fair hearing of the issues. If a prehearing statement is required and a party fails to list witnesses or to provide copies of exhibits to the prejudice of the other party or the Board's consideration of the issues, the Board may disallow testimony by unlisted witnesses and may refuse to admit unlisted exhibits into evidence, except for purposes of rebuttal.
    (e) The order of proceedings in hearings shall be as follows:
    1. Docket call by the Hearing Officer or Board.
    2. Opening statement by Petitioner and by the representative of the City (the "Respondent"), unless waived by either party or reserved by Respondent until the opening of the Respondent's case.
    3. Presentation of evidence by Petitioner, allowing cross-examination by Respondent (exhibits shall be lettered for identification by the Board or Hearing Officer).
    4. Presentation of evidence by Respondent with cross-examination by Petitioner (exhibits shall be numbered for identification by the Board or Hearing Officer).
    5. Rebuttal and rebuttal evidence, if any.
    6. Closing argument by Petitioner followed by answering argument from Respondent with opportunity to reply to answering argument by Petitioner, if any argument is desired by the Board, which may, alternatively, request the submission of written briefs. If the Petitioner chooses not to present a closing argument, none shall be allowed by the Respondent.
    7. Comments from members of the public supporting the petition.
    8. Comments from members of the public opposing the petition.
    (f) All oral testimony shall be given under oath administered by any member of the Board or the Hearing Officer in substantially the following form: "Do you solemnly swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth?” with a required affirmative response.
    (g) The conduct of hearings shall generally be in accordance with these Rules without regard to whether they conform to common law or statutory rules of procedure or evidence or other technical rules. The Petitioner shall have the burden of proof to show the correctness of its position. The standard of proof shall conform with that in civil, nonjury cases in state district court, except that in seeking a variance from any provision of any ordinance, rule or regulation, the Petitioner shall be required to prove the correctness of all aspects of its position by clear and convincing evidence. The admissibility of evidence generally shall be in accordance with these Rules and shall be encouraged, and the Board may receive and consider evidence not admissible under the Colorado Rules of Evidence if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. The Board may utilize the experience, technical competence, and specialized knowledge of any of its members in the evaluation of evidence presented.
    (h) Witnesses intending to give opinion testimony as experts must be qualified as such, and their qualifications should be submitted to the Board in advance.
    (i) Hearings shall be recorded and transcripts of such recordings shall be made at the expense of the party requesting the transcript. The Petitioner may employ a general or certified shorthand reporter at its own expense. 
  14. In appeals or requests for variances, the Petitioner and the Respondent shall each have fifteen minutes to present their respective cases (opening statement, presentation of evidence, rebuttal evidence, and closing statement) to the Board unless one of the parties have requested a longer time to present its case. Cross-examination time is not included in the fifteen-minute time limit. A request for additional time shall be made in writing either when the petition is filed, when the prehearing statement is filed, or twenty-one (21) days before the hearing. The Board shall grant requests for additional time considering the complexity of the case, the needs of due process and the ends of justice. This Rule is intended to afford a full and fair hearing of each case by the Board in an orderly and expeditious manner that will allow for prompt hearing of all cases brought to the Board.
  15. Carbon copies, photographic copies, and copies made by duplicating machines and facsimile machines may be admitted into evidence or substituted in evidence in place of original documents. 
  16. Whenever it appears that a petition is not filed within the time permitted by the particular law or rule or regulation involved, or that the Board for some other reason lacks jurisdiction, the case may be dismissed on the motion of any party or the motion of the Board.
  17. Mailings, notices, computations of time, time limitations, service and filings shall conform to the requirements of the particular law or rule or regulation involved, and in any instance where these Rules are inconsistent or allegedly inconsistent with the provisions in such law, rule or regulation, such provisions shall govern as determined by the Board. 
  18. A variance granted by the Board shall expire upon a change of circumstances from those supporting the variance or upon a change of ownership of the establishment or entity receiving the variance, unless the Board determines and states in writing that the variance granted shall be assignable to a new owner. 
  19. Except as otherwise determined by the Board and published with the notice of a meeting or rulemaking procedure, public participation in rulemaking and other proceedings of the Board is encouraged. Each member of the public shall be limited to a three-minute presentation. The Board may further limit presentations that are repetitive in nature, or allow a longer time for some participants, in its sole discretion.

Approved for publication by the Board of Environmental Health at the regular Board meeting of February 8, 2001. Adopted by the Board of Environmental Health after a public rule-making hearing at the regular Board meeting of March 8, 2001.

Approved as to Legality:
J. Wallace Wortham, Jr.
City Attorney


Adopted March 9, 2001
Theresa M. Donahue
Manager of Environmental Health

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