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Home My WebLink AboutOrdinance 6687 (3)113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Ordinance: 6687 File Number: 2023-1122 AMEND §118.05 PENALTY (B) CITY SERVICES TERMINATION (ORDINANCE): AN ORDINANCE TO AMEND § 118.05 PENALTY (B) CITY SERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2) TO PROVIDE A PROCEDURAL DUE PROCESS HEARING OPPORTUNITY FOR UNLICENSED TYPE 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERVICES WHEREAS, a previously licensed Short Term Rental whose license has been suspended or revoked after being provided an opportunity for a procedural due process hearing may have its city services including water, sewer, and solid waste withdrawn from the business premises, and WHEREAS, numerous Type 2 short term rentals appear to be illegally operating without obtaining a business license, but should also be provided an opportunity for a procedural due process hearing prior to its city services being withdrawn from the business premises. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 118.05 (B) City Services Termination by placing all existing language in a new subsection (B)(1) and enacting a new subsection (B)(2) as follows: "(2) A Type 2 Short Term Rental operator who does not have a valid and legal business license for the Type 2 Short Term Rental and who has not already been afforded an opportunity for a procedural due process hearing pursuant to § 118.01 (E)(17) shall be sent a letter to the address of the suspected Type 2 Short Term Rental in which it is stated that the operator or owner may request a procedural due process hearing prior to withholding city services in not less than five (5) nor more than ten (10) business days. If such due process hearing is requested by the owner or operator prior to the expiration of ten (10) business days, such hearing shall be promptly scheduled. The Chief of Staff shall hear evidence from City staff and others that the subject Type 2 Short Term Rental does not have a valid current license and has been operating the Short Term Rental in violation of the City Code. The owner or operator may then explain and/or provide evidence disputing the City's allegations or explaining why city services should not be withheld from the property. The Chief of Staff may then recommend to the Mayor whether or not city services should be withheld from the premises of the Type 2 Short Term Rental and what could be done by the owner/operator of the premises to obtain city services at this location again. The Mayor may then order the withholding of all city services including water, sewer and solid waste from the premises and property." PASSED and APPROVED on October 3, 2023 Page 1 Ordinance: 6687 File Number: 2023-1122 Apprbved: I Page 2 Attest: RK CITY,�fi �• �� • C Kara Paxton, City ClerICTreasurer r7t �� sy • y - *;Ill UN" p; CITY OF FAYETTEVILLE ARKANSAS MEETING OF OCTOBER 3, 2023 CITY COUNCIL MEMO 2023-1122 TO: Mayor Jordan and City Council THRU: Holly Hertzberg FROM: Kit Williams, City Attorney DATE: SUBJECT: AN ORDINANCE TO AMEND § 118.05 PENALTY (B) CITY SERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2) TO PROVIDE A PROCEDURAL DUE PROCESS HEARING OPPORTUNITY FOR UNLICENSED TYPE 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERVICES RECOMMENDATION: BACKGROUND: DISCUSSION: BUDGET/STAFF IMPACT: ATTACHMENTS: Procedural Due Process Hearing Provided to Type 2 Short Term Rentals (#3), City Services Termination Current Law (#4), Signed Agenda Request Holly Hertzberg (#5) Mailing address: 113 W. Mountain Street www.fayetteville-ar.gov Fayetteville, AR 72701 City of Fayetteville, Arkansas 113 West Mountain Street Fayetteville, AR 72701 (479) 575-8323 Legislation Text File #: 2023-1122 AN ORDINANCE TO AMEND § 118.05 PENALTY (B) CITYSERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2) TO PROVIDE A PROCEDURAL DUE PROCESS HEARING OPPORTUNITY FOR UNLICENSED TYPE 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERVICES AN ORDINANCE TO AMEND § 118.05 PENALTY (B) CITY SERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2) TO PROVIDE A PROCEDURAL DUE PROCESS HEARING OPPORTUNITY FOR UNLICENSED TYPE 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERVICES WHEREAS, a previously licensed Short Term Rental whose license has been suspended or revoked after being provided an opportunity for a procedural due process hearing may have its city services including water, sewer, and solid waste withdrawn from the business premises, and WHEREAS, numerous Type 2 short term rentals appear to be illegally operating without obtaining a business license, but should also be provided an opportunity for a procedural due process hearing prior to its city services being withdrawn from the business premises. NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby amends § 118.05 (B) City Services Termination by placing all existing language in a new subsection (B)(1) and enacting a new subsection (B)(2) as follows: "(2) A Type 2 Short Term Rental operator who does not have a valid and legal business license for the Type 2 Short Term Rental and who has not already been afforded an opportunity for a procedural due process hearing pursuant to § 118.01 (E)(17) shall be sent a letter to the address of the suspected Type 2 Short Term Rental in which it is stated that the operator or owner may request a procedural due process hearing prior to withholding city services in not less than five (5) nor more than ten (10) business days. If such due process hearing is requested by the owner or operator prior to the expiration of ten (10) business days, such hearing shall be promptly scheduled. The Chief of Staff shall hear evidence from City staff and others that the subject Type 2 Short Term Rental does not have a valid current license and has been operating the Short Term Rental in violation of the City Code. The owner or operator may then explain and/or provide evidence disputing the City's allegations or explaining why city services should not be withheld from the property. The Chief of Staff may then recommend to the Mayor whether or not city services should be withheld from the premises of the Type 2 Short Term Rental and what could be done by the owner/operator of the premises to obtain city services at this location again. The Mayor Page 1 Ordinance: 6687 File Number: 2023-1122 may then order the withholding of all city services including water, sewer and solid waste from the premises and property." Page 2 DEPARTMENTAL CORRESPONDENCE OFFICE OF THE CITY ATTORNEY TO: Mayor Jordan City Council Kara Paxton, City Clerk/ Treasurer CC: Susan Norton, Chief of Staff Paul Becker, Chief Financial Officer Tim Nyander, Utilities Direct FROM: Kit Williams, City Attorney DATE: September 14, 2023 Kit Williams City Attorney Blake Pennington Assistant City Attorney Jodi Batker Paralegal RE: Procedural Due Process Hearing Provided to Type 2 Short Term Rental Operator/Owner prior to Termination of City Services The majority of operating Type 2 Short Term Rental operators in Fayetteville have now been properly inspected and licensed. However, it appears that numerous Type 2 Short Term Rentals operating in Fayetteville have failed to apply for or be granted a business license nor have passed the health/ safety inspection of their rentals. Because these businesses are operating illegally (violation of our zoning law, our business license law, and our Type 2 Short Term Rental law), they are subject to the withholding of city services: water, sewer, solid waste upon the order of the Mayor. A licensed Short Term Rental operator who the Development Services Director reasonably believes should have its license suspended or revoked is entitled to an opportunity to request a procedural due process hearing conducted by the Chief of Staff to review such proposed action. An owner/operator of a Type 2 Short Term Rental who has never been licensed, nor inspected pursuant to the legal requirements of a Fayetteville Code is operating illegally and probably not constitutionally required to be afforded an opportunity to a procedure or process hearing. Nevertheless to try to ensure no business (Type 2 Short Term Rental) would have city services withheld from the business premises without good and proper reason, the City Attorney's Office and Ordinance Review Committee recommend any such operator who has not already received an opportunity to request a procedural due process hearing should be provided with such an opportunity prior to the withholding of city services. That is what this proposed code amendment would require. I should note that this would be an administrative procedure rather than a criminal prosecution which could result in fines. This administrative procedure does not involve any possible fines, but only the administrative penalty of withholding city services for illegally operating a business. This administrative procedure is much faster and more efficient than criminal prosecution. This efficient process which complies with procedural due process is advisable because there may be over one hundred Type 2 Short Term Rentals still illegally operating which have never obtained a business license nor complied with the Type 2 Short Term Rental requirements including the health/safety inspection of their premises. 2 118.03 FAYETTEVILLE CODE OF ORDINANCES TITLE XI BUSINESS REGULATIONS license owner has failed to correct the problems or new grounds or suspen- sion or revocation have occurred, the Chief of Staff shall conduct a second due process hearing and consider all previous evidence whether or not the business license should be suspended or revoked. (iv) Refuse to revoke or suspend the license which shall remain valid. Any complaint about events leading to the hearing shall not be considered again. (Ord. No. 5347, 9-7-10) 118.04 Appeal To City Council Any person or entity whose license has been suspended or revoked pursuant to § 118.03 may appeal such suspension or revocation to the City Council by providing the City Clerk's Office with a written request for City Council review within ten (10) business days of the issuance of the suspension or revocation. The City Council may then determine, after a public hearing in which the business license owner may present evidence and explanations, whether the business owner's license should be suspended for not more than thirty (30) days, revoked because of the grounds presented, or that no suspension or revocation is warranted. (Ord. No. 5347, 9-7-10) 118.05 Penalty (A) Fines. No business or other entity who is required by this chapter to obtain a business license shall operate without having and displaying at the business a valid and current City of Fayetteville Business License. Operating without a license shall be a violation punishable by a fine of up to $250.00 per day of operation. (B) City Services Termination. If a business or entity continues to operate without a valid and current City of Fayetteville Business License for a period of one week after notification by the Director of Development Services, the Mayor may order the withholding of all city services including water, sewer and solid waste for the business premises. rd. No. 5347, 9-7-10) C 0 Supp. No. 28 CD118:8 Civic Clerk Item No.: 2023-1122 AGENDA REQUEST FORM FOR: Council Meeting of October 3, 2023 FROM: Council Member Holly Hertzberg ORDINANCE OR RESOLUTION TITLE AND SUBJECT: AN ORDINANCE TO AMEND § 118.05 PENALTY (B) CITY SERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2) TO PROVIDE A PROCEDURAL DUE PROCESS HEARING OPPORTUNITY FOR UNLICENSED TYPE 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERVICES APPROVED FOR AGENDA: H lly Het erg City Council mber Ki t liams Fayetteville City Attorney Approved as to form `t 11LA I Z3 Date LZ�,z3 Date Scanned with CamScanner Form v1 36 NW \ �a AWEHCO MEDIA COMPANY RECEIVED Account#: NWCL5004205 OCT Y 0 2023 Company: CITY OF FAYETTEVILLE-CLERKS OFFI OTY OF FAYIETTEMILIE Ad number#: 334044 owCLERKS OFFICE PO#: Matter of: Ord 6687 AFFIDAVIT•STATE OF ARKANSAS I,Carla Gardner,do solemnly swear that I am the Finance Director of the NWA Democrat Gazette,a daily newspaper printed and published in WASHINGTON county,State of ARKANSAS;that I was so related to this publication at and during the publication of the annexed legal advertisement in the matter of: Ord 6687 Pending in the court,in said County,and at the dates of the several publications of said advertisement stated below,and that during said periods and at said dates,said newspaper was printed and had a bona fide circulation in said County, that said newspaper had been regularly printed and published in said county,and had a bona fide circulation therein for the period of one month before the date of the first publication of said advertisement;and that said advertisement was published in the regular daily issues of said newspaper as stated below. And that there is due or has been paid the NWA Democrat Gazette for publication the sum of$176.80. (Includes$0.00 Affidavit Charge). NWA Democrat Gazette 10/07/23;NWA nwaonline.com 10/07/23 dez,c_a_ �c e'` ite—L Finance Director State of ARKANSAS,County of WASHINGTON,Subscribed and sworn to before me on this 10th day of October,2023 •�r .4t!� CATHERINE STAGGS .l��TAR*` .f MY COMMISSION 0 12402772 ,tiWjV EXPIRES:February 28, 2025 CCO M ,;� Washington County NOTARY PUBLIC Ordinance:6687 File Number: 2023-1122 AMEND§118.05 PENALTY(B) CITY SERVICES TERMINATION (ORDINANCE): AN ORDINANCE TO AMEND §118.05PENALTYCITY RECEIVED SERVICES TERMINATION TO ADD AN ADDITIONAL SUBSECTION (2)TO PROVIDE A PROCEDURAL DUE PROCESS HEARINGO C T r 0 20� OPPOR- TUNITY FOR UNLICENSEDDTYPE TYPE j 2 SHORT TERM RENTALS PRIOR TO WITHHOLDING CITY SERV- ICES CITY OF FAYETTEVILLE WHEREAS, a previously li- censed Short Term Rentall whose license has been sus- pended or revoked atter being provided an opportunity for a procedural due process hearing may have its city services in- cluding water,sewer,and solid waste withdrawn from the busi- ness premises,and WHEREAS,numerous Type 2 short term rentals appear to be illegally operating without ob- taining a business license,but should also be provided an op- portunity for a procedural due process hearing prior to its city services being withdrawn from the business premises. NOW THEREFORE,BE IT OR- DAINED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayet- teville,Arkansas hereby amends §118.05(B)City Services Ter- mination by placing all existing language in a new subsection (B)(1)and enacting a new sub- section(B)(2)as follows: "(2)A Type 2 Short Term Rental operator who does not have a valid and legal business license for the Type 2 Short Term Rental and who has not al- ready been afforded an oppor- tunity for a procedural due process hearing pursuant to§ 118.01 (E)(17)shall be sent a letter to the address of the sus- pected Type 2 Short Term Rental in which it is stated that the op- erator or owner may request a procedural due process hearing prior to withholding city serv- ices in not less than five(5)nor more than ten (10) business days.If such due process hear- ing is requested by the owner or operator prior to the expiration of ten(10)business days,such hearing shall be promptly scheduled. The Chief of Staff shall hear evidence from City staff and others that the subject Type 2 Short Term Rental does not have a valid current license and has been operating the Short Term Rental in violation of the City Code.The owner or op- erator may then explain and/or provide evidence disputing the City's allegations or explaining why city services should not be withheld from the property.The Chief of Staff may then recom- mend to the Mayor whether or not city services should be with- held from the premises of the Type 2 Short Term Rental and what could be done by the owner/operator of the premises to obtain city services at this lo- cation again. The Mayor may then order the withholding of all city services including water, sewer and solid waste from the premises and property." PASSED and APPROVED on October 3,2023 Approved: Lioneld Jordan,Mayor Attest: Kara Paxton City Clerk Treasurer This publication was paid for by the City Clerk-Treasurer of the City of Fayetteville, Arkansas. Amount paid:$176.80 October 7,2023 334044