(A) Enforcement procedures and remedies.
(1) If the County Commissioners determine that an owner or permittee has failed to perform any obligation under this subchapter or has failed to perform in a timely manner, the County Commissioners may:
(a) Make a written demand on the owner or permittee that it remedy the violation;
(b) Issue a stop work order pursuant to division (B) below; and/or
(c) Issue an order to cure pursuant to division (C) below.
(2) If the violation is not remedied or in the process of being remedied to the satisfaction of the County Commissioners within a reasonable time period following a written demand or order to cure, the County Commissioners may:
(a) Enforce the provisions of this subchapter through injunctive proceedings, an action for specific performance, or any other appropriate proceedings;
(b) Issue a civil citation and impose a penalty not to exceed $1,000, pursuant to the provisions of § 3-811 of the Code of Public Local Laws;
(c) Assess against the owner or permittee any monetary damages provided for such violation in any agreement between the owner or permittee and the County Commissioners;
(d) Assess and withdraw the amounts specified above from the owner’s or permittee’s performance bond or other applicable security instrument;
(e) Revoke any franchise or permit held by the owner or permittee as provided in his, her, or its franchise agreement or permit; or
(f) Pursue any legal or equitable remedy available under any applicable law or under any agreement between the owner or permittee and the County Commissioners.
(3) Remedies available to the County Commissioners for franchise violations under this subchapter and under a franchise agreement shall be construed, except as otherwise provided in this subchapter, as cumulative and not alternative.
(4) If civil penalties are assessed against an owner or permittee under this subchapter, the owner or permittee is not subject to liquidated damages payable to the County Commissioners for the same violation. If liquidated damages payable to the County Commissioners are assessed against an owner or permittee, the owner or permittee is not subject to civil penalties under this subchapter for the same violation. If the County Commissioners seek actual damages for any violation, any civil penalties or liquidated damages recovered by the County Commissioners for the same violation, including civil penalties or liquidated damages for partial time periods included in a longer time period for which actual damages are sought, shall be offset against any actual damages recovered by the County Commissioners.
(5) An owner or permittee shall pay civil penalties or liquidated damages within 30 days after receipt of notice from the County Commissioners.
(6) The filing of an appeal to any regulatory body or court does not stay or release the obligations of an owner or permittee under a franchise agreement and applicable law.
(7) An assessment of liquidated damages or civil penalties does not constitute a waiver by the County Commissioners of any other right or remedy they may have under a franchise or applicable law, including the right to recover from the owner or permittee any additional damages, losses, costs, and expenses, including actual attorney’s fees, that were incurred by the franchisors or the County Commissioners by reason of or arising out of the violation. However, the County Commissioners’ election of liquidated damages under a franchise agreement shall take the place of any right to obtain actual damages over and above the payment of any amounts otherwise due. This provision may not be construed to prevent the County Commissioners from electing to seek actual damages for a continuing violation if they have imposed civil penalties or liquidated damages for an earlier partial time period for the same violation, subject to the offset specified in division (A)(4) above.
(B) Stop work order.
(1) The Director may issue a stop work order, impose conditions on a permit, or suspend or revoke a permit if the Director determines that:
(b) Work in the public streets poses a hazardous situation or constitutes a public nuisance, public emergency, or other threat to the public health, safety, or welfare.
(2) The Director shall notify the permittee of action taken under division (B)(1) above by a written, electronic, or facsimile communication, and the permittee shall comply immediately after receipt of the notice.
(3) A stop work order shall state the conditions under which work may be resumed and shall be posted at the site.
(C) Order to cure.
(2) An order issued under this section shall warn the person that a failure to comply within the time specified makes the person subject to the imposition of a civil fine under division (A)(2)(b) above and to liability for any costs incurred by the Department to effectuate compliance.
(3) If the owner or permittee fails, neglects, or refuses to comply with an order issued under this section, the Director may complete the excavation or other work in the public streets in any manner the Director deems appropriate, and the owner or permittee shall compensate the Department for all costs incurred, including costs for administration, construction, consultants, equipment, inspection, notification, remediation, repair, and restoration. The cost of the work may be deducted from any bond or other security instrument of the owner or permittee. The Department’s completion of an excavation or other work in the public streets does not relieve the owner or permittee from the warranty and liability provisions of § 92.085(A), the indemnification provisions of § 92.085(B), or any other term or condition of this subchapter.
(2004 Code, § 92-8) (Ord. 08-11, passed 12-18-2008)