§ 6.5-237. Notice of violation or failure to comply; hearing

(a)

For the failure to comply with a time-related or performance-related requirement of this article which the city deems sufficient to warrant sanctions, the city shall provide notice and an opportunity to eliminate, remedy or cure.

(b)

Notwithstanding anything to the contrary in subsection (a) of this section, or any other subsection of this section, to incent the protection of the public health and safety and the safety of public and private property, for situations involving violations of construction and safety-related codes and requirements where such are deemed to create an imminent threat or danger to lives or property within the city, and for which the service provider or system owner or operator has previously been notified of the same or similar situations in the previous thirty-six (36) months, the service provider or system owner or operator shall be notified, but may not be granted an opportunity to remedy or cure prior to the imposition of fines and/or penalties. Rather fines and/or penalties may be assessed and imposed after proper written notice on a per occurrence per day basis, until the violation(s) is eliminated.

(c)

Notice and the opportunity to cure, as required, shall be provided to the service provider or system owner or operator in writing, and shall be sent by certified U.S. mail, return receipt requested, or may be personally delivered, to the service provider's or system owner's or operator's local place of business.

(d)

A service provider or system owner or operator may request a hearing on the matter addressed in the notice required in subsection (a) of this section, or the city may call a hearing on the matter. At the discretion of the city council the hearing may be held before the city council or the administrator.

(e)

Public notice shall be given of the hearing and of the issues that are to be considered by the city.

(f)

The city council, or the administrator, or a designated hearing officer, shall, at the date, time and place designated for the hearing, hear and consider issues from the city and the service provider or system owner or operator and make a determination regarding the alleged violation of this article or any franchise.

(1)

The city council, or the administrator, or a designated hearing officer, shall hear and consider the matter, including hearing any person interested in the matter wishing to be heard, and review and consider any relevant evidence. After affording the service provider or system owner or operator required rights of due process to be heard, to present relevant evidence and witnesses and to question any witnesses, the city council shall determine, based on a preponderance of the evidence, whether or not there was committed a breach or violation of a time or performance related requirement of this article, or a breach of a term or condition of franchise, or a violation of any federal, state, law, rule or regulation or local law, regulation or code not expressly prohibited from local enforcement. The city shall have made a transcript of the hearing.

(2)

The service provider or system owner or operator may, at its own expense, make a transcript of any such hearing, or it may share the costs of obtaining a transcript of such hearing equally with the city.

(3)

At the hearing the city and the service provider or system owner or operator may present evidence relevant to the issues being heard and, including the right to call and examine and cross examine witnesses.

(4)

Within thirty (30) days following the completion and close of the hearing, the city council, or the administrator, or the hearing officer, shall issue a written decision as regards whether any failure to comply with any time-related or performance related requirement or act of evasion or avoidance of this article, or breach of a term or condition of the franchise, or violation of any federal or state, law, rule or regulation, or local law, regulation or code, occurred. Such determination shall be based upon a preponderance of the evidence presented as contained in the record of the proceeding, stating with particularity the reasons for the decision.

(5)

Within thirty (30) days after the issuance of a decision, city council shall then take formal action, either dismissing the claim of violation or breach, or finding that the service provider or system owner or operator did commit the alleged violation or breach and did not cure or eliminate such as required. The city council's formal action shall be in writing and a copy of such shall be provided to the service provider or system owner or operator.

(6)

Should the city council, the administrator or the hearing officer find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in subsection (b) of this section, that the service provider or system owner or operator remedied the violation or failure prior to or by the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial and meaningful good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial and meaningful efforts to complete the remedy as directed by the city council, all of which shall be determined at the sole discretion of the city council, the proceedings shall be terminated and no penalty shall be imposed.

(7)

The city council shall be required to base its decision on a preponderance of the evidence from the record established during the hearing. If the city council determines that a failure to comply with any time or performance related requirement of this article, or any act of evasion or avoidance of this article, or breach of a term or condition of the franchise, or of any federal or state law, rule or regulation or local law, regulation or code, was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this article, the city council may determine whatever action it deems appropriate as may be permitted under this article and the franchise. The city council's decision shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this article.

(8)

Prior to the imposition of any penalty or sanction against a service provider or system owner or operator, but not including fines as previously set forth in this subsection, the city shall provide the service provider or system owner or operator notice and opportunity to cure in accordance with the following subparagraphs (a) and (b).

a.

The city shall provide the service provider or system owner or operator with written notice specifying the nature of the failure, breach, violation or act of evasion or avoidance. The service provider or system owner or operator shall have a period of forty-eight (48) hours following the receipt of such notice to cure or satisfy the alleged failure, breach or violation, with the exception of safety situations.

b.

In the event the city council or the administrator concludes that the service provider or system owner or operator has failed to comply with its obligations under this article or the franchise, and that the service provider or system owner or operator has not remedied such failure, violation, act of avoidance or evasion or breach within the period set forth in the notice set forth in the preceding subparagraph (a) after having received written notice, the city council may pursue whatever additional penalties or sanctions are provided for under state law, including civil or criminal prosecution.

(g)

The amount of time given the service provider or system owner or operator to cure any violation of this article, or any violation of any federal or state law, rule or regulation, or other local law, regulation or code, shall be at the discretion of the city council to the extent not otherwise governed by this article or state or federal law, but in no event shall a service provider or system owner or operator be given less than forty-eight (48) hours, unless otherwise dictated by an emergency situation posing an imminent threat to the health and safety of individuals or the safety of public or private property.

Notwithstanding the preceding, or anything else in this section or anywhere in this article, in the event a violation of the construction or safety-related requirements of this article endangers, or has the reasonable possibility of endangering, the health or safety of individuals or the safety of property, the forty-eight (48) hour elimination period may be lessened and the elimination of the violation may be required the same day, depending upon the seriousness of the matter as a factor of the degree of danger involved or the imminence of injury or damage to property. Notwithstanding the preceding portion of this subsection, any lessening of the forty-eight (48) hour period shall be solely for purposes of eliminating the danger or threat, and shall not enable the city to impose fines during such shorter period.

(h)

The city may, in its reasonable discretion, grant extensions of time to a service provider or system owner or operator to eliminate, cure or remedy, where extraordinary circumstances not precipitated by the service provider or system owner or operator warrant an extension.

(i)

Notwithstanding any notice and opportunity to cure requirements of the applicable federal or state law, the issuance of two (2) or more notices to cure or eliminate or remedy a violation for the same or similar provisions or requirement of this article, or two (2) or more breaches of a term or condition of a franchise that constitute a violation of this article or an act of evasion or avoidance of the requirements of this article, or two (2) or more violations of any federal or state law, rule or regulation, or other local law, regulation or code, within any twelve (12) consecutive month period, may be deemed a pattern of behavior that demonstrates an intent to continue violating this article and thereby relieve the city of any obligation to provide further notice and opportunity to cure for subsequent failures to meet the requirements of this article, or for breaches of terms or conditions of a franchise or violations of federal or state, law, rule or regulation or other local law, regulation or code. Evidence of subsequent failures as set forth in this subsection shall be admissible as evidence in a hearing before the city council or the administrator, or a designated hearing officer, regarding the assessment of fines and/or penalties, provided that the city has provided such evidence to the service provider or system owner or operator at least ten (10) days prior to the hearing and the service provider or system owner or operator has an opportunity to be heard at the hearing and to present evidence in contravention of the charge(s) or in defense of its actions.

(j)

A notice of intent to assess fines and/or penalties may be issued concurrently with a notice to cure. If a notice of intent to assess fines and/or penalties is issued concurrently with a notice to cure, then fines and penalties, if assessed, will accrue commencing with the expiration of the time allowed for an opportunity to cure as set forth in the notice. The notice of intent to assess fines and/or penalties shall state the reason for the assessment and imposition, and shall inform the service provider or system owner or operator that fines and/or penalties will be assessed from the date of the notice, or the end of the time allowed for an opportunity to cure, whichever is later.

(k)

If the service provider or system owner or operator desires to appeal the city's imposition of fines and/or penalties, it must file a written notice of appeal with the mayor or the administrator, delivered by certified U.S. mail/return receipt requested, within ten (10) days of the receipt of the notice of intent to assess fines and penalties. The mayor or administrator shall then place the issue before the city council.

(l)

The city shall then have served upon the affected service provider or system owner or operator, by certified U.S. mail/return receipt requested, a written notice of the date, time and place of the meeting, at least fifteen (15) days prior to the date of the meeting of the city council at which the matter will be heard.

(m)

Public notice shall be given of the meeting and of the issue that is to be considered by the city council. If the franchisee or other service provider or system owner or operator fails to appeal the city's assessment or imposition of fines and/or penalties within the time required by this section, the city's decision to assess fines and/or penalties shall be final.

(n)

The city council shall, at the date, time and place designated for the hearing, hear and consider issues from the city and the service provider or system owner or operator and make a determination regarding the alleged violation of this article or any franchise.

(1)

The city council shall hear both parties and consider the matter, including any relevant evidence presented.

(2)

After affording the service provider or system owner or operator and the city the right be heard and present evidence, the city council shall determine whether or not there was committed a violation of this article, or a breach of a material term or condition of the franchise, or a violation of any federal, state, or other local law, rule, regulation or code.

(3)

The city shall have made a transcript of the hearing. A service provider or system owner or operator may, at its own expense, make a transcript of the hearing, or may obtain a copy of the city's transcript if it shares the costs equally with the city.

(4)

Within thirty (30) days following the completion and close of the hearing, the city council shall issue a written decision as regards the commission of a violation of this article, or breach of a material term or condition of the franchise, or a violation of any federal, state, or local law, rule, regulation or code, and such determination shall be based upon the record of the proceeding, stating with particularity the reasons for such decision. A copy of the city council's written decision shall be provided to the service provider or system owner or operator.

(5)

Should the city council find that no breach, violation or failure to comply or perform occurred, or, except for situations addressed in subsection (b) of this section, that the service provider or system owner or operator remedied the failure prior to the end of the period allowed for cure, or that the service provider or system owner or operator instituted substantial good faith actions to remedy the failure to comply or perform after having been provided written notice, and actively and expeditiously started and undertook substantial efforts to complete such remedy, or that fines and/or penalties are not warranted or applicable in the instant situation, all of which shall be determined at the sole discretion of the city council, the proceedings shall be terminated and no penalty shall be imposed.

(6)

The city council shall be required to base its decision on a preponderance of the evidence from the record established during the city council's hearing. If the city council determines that any violation of this article, or breach of a term or condition of the franchise, or of any federal, state, or local law, rule, regulation or code, was the fault of the service provider or system owner or operator, and was within its control, subsequent to the required notice and opportunity to cure and due process requirements of this article, the city council may affirm the assessment and imposition of fines, penalties or sanctions as permitted under this article or state law. The city council's decision to affirm the city's assessment of fines, penalties or other sanctions shall be final and no other remedies, administrative or otherwise, nor any procedures for such, are provided under this article.

(Ord. No. A-177, § 87, 3-13-2000)