36.04A.270 Procedure for remedying franchise violations.

(a)    If the director believes that a grantee has failed to perform any obligation under a franchise agreement or has failed to perform in a timely manner, the director shall notify grantee in writing, stating with reasonable specificity the nature of the alleged violation. Grantee shall have thirty (30) days from the date of receipt of such notice to:

(1)    Respond to the director, contesting the director’s assertion that a violation has occurred, and request a hearing before the commission in accordance with subsection (c) of this section; or

(2)    Cure the violation; or

(3)    Notify the director that grantee cannot cure the violation within the thirty (30) days, because of the nature of the violation and notify the director in writing of what steps the grantee shall take to cure the violation including the grantee’s projected completion date for such cure. In such case, the director shall set a hearing date before the commission within thirty (30) days of receipt of such response in accordance with subsection (b) of this section.

(b)    In the event that the grantee notifies the director that it cannot cure the violation within the thirty (30) day cure period, the director shall set a public hearing before the commission within thirty (30) days of the director’s receipt of such notice to review and determine whether the grantee has taken reasonable steps to cure the violation and whether the grantee’s proposed plan and completion date for cure are reasonable. In the event such plan and completion date are found to be reasonable by the commission, the same shall be approved by the commission, who may waive all or part of the liquidated damages for such extended cure period in accordance with the criteria set forth in subsection (e) of this section.

(c)    In the event that the grantee fails to cure the violation within the thirty (30) day basic cure period, or within an extended cure period approved by the commission pursuant to subsection (b) of this section, the commission shall set a public hearing to determine what sanctions shall be applied. In the event that the grantee contests the director’s assertion that a violation has occurred, and requests a hearing in accordance with subsection (a)(1) of this section, the commission shall set a public hearing within sixty (60) days of the director’s receipt of the hearing request to determine whether the violation has occurred, and if a violation is found, what sanctions shall be applied.

(d)    The commission may at the request of the grantee, or on its own motion, appoint a hearing examiner pursuant to Section 36.04A.220(b) to conduct any hearings and issue any decisions on its behalf pursuant to this section or make written reports or recommendations thereon as the commission may specify in its charge to the hearing office; provided, that only the commission may make written report and recommendation to county board that liquidated damages in excess of fifty thousand dollars ($50,000) be imposed or that a franchise be revoked.

(e)    No franchise agreement shall be revoked nor shall liquidated damages in an amount in excess of fifty thousand dollars ($50,000) be imposed except by board after written report and recommendation by the commission and after notice and hearing as set forth in this section.

(f)    In the case of any hearing pursuant to this section, the hearing body shall notify the grantee of the hearing in writing and at the hearing, grantee shall be provided an opportunity to be heard and to present evidence in its defense. The hearing body shall also hear any other person interested therein.

(g)    The liquidated damages set forth in a franchise agreement pursuant to Section 36.04A.140 and 36.04A.250 may be reduced at the discretion of the hearing body, taking into consideration the nature, circumstances, extent and gravity of the violation as reflected by one or more of the following factors:

(1)    Whether the violation was unintentional;

(2)    Whether substantial harm resulted;

(3)    Whether there is a history of prior violations of the same or other requirements;

(4)    Whether there is a history of overall compliance; and/or

(5)    Whether the violation was voluntarily disclosed, admitted or cured.

(h)    If, after the public hearing, hearing body determines that a violation exists, it may utilize one or more of the following remedies;

(1)    Order grantee to correct or remedy the violation within a reasonable timeframe as the hearing body shall determine;

(2)    Establish the amount of liquidated damages to be imposed taking into consideration the criteria provided for in subsection (f) of this subsection; provided that amounts in excess of fifty thousand dollars ($50,000) shall be subject to county board final action pursuant to subsection (e) of this section;

(3)    Recommend to board revocation of the franchise agreement, subject to subsection (e) of this section; and/or

(4)    Recommend to board that the county pursue any other legal or equitable remedy available under the franchise agreement or any applicable law.

(i)    In the event that the hearing body determines that a violation has occurred and that liquidated damages of up to fifty thousand dollars ($50,000) shall be assessed, such determination as to whether a violation has occurred and the amount of penalties assessed shall be within the sole discretion of the hearing body and shall be final. In the case of a revocation or assessment of liquidated damages in excess of fifty thousand dollars ($50,000), the determination of county board as to whether a violation has occurred shall be within the sole discretion of the board and shall be final. Any such final determination by the hearing body, whether it be the commission or a hearing examiner, or by board, shall be subject to review by a court of competent jurisdiction under applicable law. (Sec. 2 of Ord. 1998-12-21)