Sec. 5-64.1. License fee amount protests—Administrative hearing.
A. If within 30 days after receipt of written notice to the licensee by the City that an additional amount of license fee is payable, the licensee petitions the City Manager in writing setting forth the reasons why the additional amount is not payable and requesting a hearing, the City Manager will appoint a hearing officer qualified to hear petitions for hearing under Chapter 14.
B. If a petition for hearing or redetermination of the ruling of the hearing officer is not made within the time periods specified herein, the licensee will be deemed to have waived and abandoned the right to question the additional amount of license fee determined to be due, and any license fee and interest determined to be due will be final and due and payable.
C. The licensee and the City must make written disclosure required below as fully as then possible within 60 days of licensee’s filing its petition and no later than 20 days before the hearing:
1. The name and address of each person whom the disclosing party expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.
2. The existence, location, custodian, and general description of any tangible evidence or relevant documents that the disclosing party plans to use at the hearing.
D. The licensee may amend its petition at any time before the licensee rests its case at the hearing or such time as the hearing officer allows for submitting of amendments in cases of a redetermination without a hearing. The hearing officer may require that amendments be in writing and, in that case, must provide a reasonable period of time to file the amendment. The hearing officer must provide a reasonable period of time for the City Manager to review and respond to the petition and to any written amendments.
E. Hearings will be conducted by a hearing officer and will be continuous until the hearing officer closes the record. The licensee may be heard in person or by its authorized representative at such hearing. Hearings will be conducted informally as to the order of proceeding and presentation of evidence. The hearing officer will admit evidence over hearsay objections where the offered evidence has substantial probative value and reliability. Further, copies of records and documents prepared in the ordinary course of business may be admitted, without objection as to foundation, but subject to argument as to weight, admissibility, and authenticity. Summary accounting records may be admitted subject to satisfactory proof of the reliability of the summaries. In all cases, the decision of the hearing officer must be made solely upon substantial and reliable evidence. All expenses incurred in the hearing will be paid by the party incurring the same.
F. Redeterminations upon a "petition for redetermination" will follow the same conditions, except that no oral hearing will be held.
G. In either case, the hearing officer must issue his ruling not later than 45 days after the close of the record by the hearing officer.
H. The decision made by the hearing officer upon administrative review by hearing or redetermination will become final 30 days after the licensee receives notice by the City Manager of the amount payable recalculated, if necessary, to conform to the hearing officer’s decision, unless the licensee files an action for judicial determination of the amount due or the City files an action for judicial review in the manner provided in subsection J of this section.
I. Any license fee due must be paid within 30 days after such notice either unconditionally or under protest as part of an appeal procedure for judicial review.
J. The licensee may bring an action against the City in the Superior Court located in Maricopa County for judicial determination of the amount due. The City may seek judicial review of all or any part of a hearing officer’s decision by initiating an action in the Superior Court located in Maricopa County. An action for judicial determination of the amount due or for judicial review may not be commenced more than 30 days after the licensee receives notice of the amount payable recalculated, if necessary, to conform to the hearing officer’s decision. Failure by either party to bring the action within 30 days will constitute a waiver of the right to bring said action, except that if one party initiates an action in the appropriate court, the other party may file such counterclaim as would be allowed pursuant to the Arizona Rules of Civil Procedure.
K. The court may consider only those grounds and issues set forth in the petition filed under this section or amendments allowed by the hearing officer during the review process and prior to the issuance of his ruling. Subject to the limitation in this subsection, the appeal will be considered de novo.
L. If the petition alleges that the additional amount of license fees payable based on gross income of an affiliate, subsidiary, parent or any person, firm or corporation in which the licensee has a financial interest or which has a financial interest in the licensee is not payable then the following procedure will apply at such hearing to such portions of the petition.
1. The City will have the burden of establishing a prima facie case for any of the following elements which is the basis for its claim that an additional amount of license fees is payable: that the affiliate, subsidiary, parent, or such other person, firm or corporation is not a separate legal entity, with separate employees, with separate financial records (which may be part of consolidated financial reporting records), and a separate mission; that it makes payments to the licensee which do not meet market standards for the services and industries involved; that it was not established for valid business purposes or it was established with the intent and purpose of circumventing payment of license fees on gross revenues; or that such cash, credit, property of any kind or nature, or other consideration is cable operator’s gross revenues derived from operation of the cable system under the Cable Act.
2. After the City establishes a prima facie case for any of the above elements, the licensee will have the burden of going forward and introducing sufficient evidence on that element to create a genuine issue of material fact. If the licensee does not do so, the City will prevail on that element. If the licensee does create a genuine issue of material fact on that element, then the burden will shift and the City will have the burden of proving that element by a preponderance of the evidence.
3. The licensee must provide to City within 30 days of filing its petition, the following information:
a. Specific categories of information to be identified by the City by administrative rules regarding the elements in subsection (L)(1) of this section;
b. The name and address of each person whom the licensee expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert;
c. The existence, location, custodian, and general description of any tangible evidence or relevant documents that the licensee plans to use at the hearing.
4. The City must provide the licensee within 30 days of receipt of licensee’s information identified above, the following information:
a. The name and address of each person whom City expects to call as an expert witness at the hearing, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, a summary of the grounds for each opinion, the qualifications of the witness and the name and address of the custodian of copies of any reports prepared by the expert.
b. The existence, location, custodian, and general description of any tangible evidence or relevant documents that the City plans to use at the hearing. (Ord. No. G-6034, 2015)