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HomeMy WebLinkAboutADMINISTATIVE APPEAL Business License Suspension 1060 Otis Lane 2024-11-04November 4, 2024 To: Town Administrator Mr. Travis Machalek From: Howard Bartlett, Hearing OBicer RE: Suspension of license: 1060 Otis Lane, Estes Park, CO, 80517 Concerning: Jackie Williamson Town Clerk Eric Neeb Property Owner Peter Walstra , Property Manager Date of appeal hearing: 10/25/2024 Synopsis: After three separate adjudications regarding violation of Estes Park municipal ordinances, a notice of suspension of Mr. Neeb’s vacation home license was served. Mr. Neeb filed a written notice to appeal this decision. Howard Bartlett, Associate Judge, was appointed to hear the appeal on this matter. The Hearing oBicer received and reviewed an exhibit notebook from Ms. Williamson. This Exhibit consisted of: Complaint #1- Date of oBense, 06/25/2023 – with supporting documents Complaint #2- Date of oBense, 06/17/2023 - with supporting documents Complaint #3- Date of oBense, 02/17/2024 – with supporting documents Appeal Request by Mr. Neeb Copies of applicable Estes Park Municipal Code (“EPMC”) The Hearing oBicer received and reviewed documentation from Mr. Neeb consisting of a copy of Estes Park ordinance 2-04 Regarding “Disturbance – Sound, Noise, Odor or Light…” which has since been superseded. Procedure: The hearing oBicer took statements from Mr. Neeb and Mr. Walstra in support of their appeal. The hearing oBicer took statements from Ms. Williamson in support of Estes Park’s position. Mr. Neeb and Mr. Walstra were then allowed time for “rebuttal”. The parties were aBorded equal time to argue their positions. The hearing started at 10 AM and concluded around 11 AM although the parties were aBorded until noon if needed. The hearing was recorded by administrative staB. Applicable Authority – EPMC 5.20.110(F)(6)(b), EPMC 5.20.110(F)(7) In pertinent part: (6) Suspension and Revocation. The town may suspend or revoke the business license of any vacation home or bed and breakfast inn for violation of the provision so this Section as follows: a. the Town Cler k, upon the receipt and verification of any violation of this Section may give written notice to the owner or representative that a violation has occurred and warn of potential future suspension and revocation. The Town C lerk may delegate this authority to other Town StaB, including a co de enforcement oBicer. And, (7) Appeal. Any owner or representative who wishes to appeal a notice of revocation or suspension of a license for a vacation home or bed and breakfast inn may request an administrative hearing by written notice delivered in person or by certified mail…. the Town Administrator’s designee, shall act as the hearing oBicer and SHALL HOLD A HEARING ON THE APPEAL AND DETERMINE WHETHER OR NOT (sic) A VIOLATION OF THIS SECTION HAS OCCURRED WITHIN THE APPLICABLE TIME PERIOD TO PROMPT THE SUSPENSION OR REVOCATION, RESPECTIVELY. THE HEARING SHALL MEET THE STANDARDS OR BASIC DUE PROCESS. THE OWNER OR REPRESENTATIVE SHALL BE ENTITLED TO PRESENT ANY EVIDENCE OF COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS SECTION AT THE HEARING. THE HEARING OFFICER NEED NOT RE-ADJUDICATE ANY ISSUE RESOLVED AT A PREVIOUS HEARING OR ANY ISSUE THAT COULD HAVE BEEN RESOLVED WITH A PRIOR APPEAL. (emphasis added). Analysis – The position of Mr. Neeb and Mr. Walstra (the appellants) can be summarized as follows: - On citation #3, we were convicted for something we were not charged with. - The standard for the violation of noise standards used to be objective (measured) but is now subjective which is manifestly unfair. - There should be alternatives to suspension of licensure including, increasing fines. - The neighbor who called in the reports is problematic. - When police were contacted, properties came into compliance. - Steps at check in of guests have been taken to educate them on noise issues. - Mr. Neeb and Mr. Walstra allege that they are good stewards of the properties they own and manage in Estes Park, and they welcome working with the town to mitigate these concerns prospectively. The position of the Town is that there has been notice, three separate adjudications for applicable violations have occurred, there have been no deficiencies in procedural practice as noted in the municipal code, and the license at the property 1060 Otis Lane should be suspended as set forth by the EPMC. The Hearing OBicer makes the following findings: - Mr. Neeb and Mr. Walstra were cited for violations on or about June 30, 2023 and resolved the matter without requesting a trial. - Mr. Neeb and Mr. Walstra were cited for violations on or about June 17, 2023 and resolved the matter without requesting a trial. (This matter occurred first in time, but was resolved after the second violation due to processing and investigation time by the Estes Police Department). - Mr. Neeb and Mr. Walstra requested a trial on the third charged violation of February 17, 2024. They were granted a trial and the case was adjudicated. - In the first two instances, notice was provided and the parties had the opportunity to contest issues like motive of the complaining witnesses, the reasonableness of the oBicer and to otherwise contest the factual basis. The appellants chose to resolve these matters without a trial. This OBicer will not revisit these issues on appeal. - Regarding the third complaint, a trial was granted and held. The Court, after hearing all the evidence, considering the credibility of the witnesses and other appurtenant facts did find that the Town/Police Department, had met their burden and adjudicated the issues. The Appellants allege they were tried and convicted on something they were not cited for. This oBicer does not have authority to second guess the sound judgment of the trial judge and, the time and place to raise any defense, if any, would have been during those proceedings. - Mr. Neeb and Mr. Walstra allege that the applicable noise ordinance is not objective in nature and arguably want the hearing oBicer to infer that in all three instances the complaining party was being unreasonable. The appellants supplied the hearing oBicer with a copy of Estes Park Municipal code which has been superseded and asked the hearing oBicer to apply this superseded law to these cases on the basis of their confusion about objective or subjective standards employed by the police department. Again, the time and place to contest the reasonableness of the investigating oBicers and raise any possible defenses should have occurred during the pendency of those individual cases. This hearing oBicer cannot speculate wildly about the standards employed by the police after the fact. - The hearing oBicer finds that after each violation, that the Appellants were provided notice by the Town Clerk regarding the nature of the violations and the consequences of future violations as it pertains to maintaining the license. For the Appellants to argue mistake or confusion about what is now occurring is not persuasive. - The hearing oBicer finds that the Appellants were provided timely notice of the individual violations, there was due process aBorded in each instance to address the concerns raised at appeal, but they chose not to do this on the first two violations and that the Appellants were on notice of the possible consequences. Nonetheless, violations continued to occur. - The hearing oBicer is sympathetic to the allegations made by the Appellants that the loss of the license on this property deprives them of income on this property. The Hearing oBicer notes, however, that the issuance of a license to operate a vacation rental/bed and breakfast is a privilege and not a right and is subject to compliance with applicable rules. It is incumbent on a licensee to know these rules and to ensure they are complied with. Therefore, the hearing oBicer aBirms the suspension of the license which had previously been issued for 1060 Otis Lane, Estes Park, Colorado. This suspension is for a period of one year from the date that the suspension becomes final, to wit: November 4th, 2024. 1060 Otis Lane may not be operated as a vacation home or bed and breakfast during this time. This is pursuant to EPMC 5.20.110(F)(6)(b). Howard Bartlett Administrative Hearing OBicer