(A) Nothing herein shall prevent the city from taking action to protect the health, safety or welfare of the public or to prevent eminent danger of damage to property.
(B) Enforcement of the consumer protection standards contained herein shall be governed by the following:
(1) In addition to the powers delegated in § 112.44, the City Manager shall have the authority to order refunds from a franchisee to individual subscribers who have submitted a written complaint to the city and to assess fines against a franchisee for any violation of this subchapter or any franchise agreement, which fines will be paid to the city.
(2) In ordering refunds to subscribers, the City Manager shall be governed by the schedule set out below in which the refund indicated is expressed as a percentage of the subscriber’s monthly bill. The refunds listed are to be made on a per violation basis with each day of a continuing violation constituting a separate violation. The refund ordered by the City Manager pursuant to this section shall not exceed 100% of a subscriber’s monthly bill, unless a violation has continued at least 30 days.
(3) In assessing fines against a franchisee, the City Manager shall be governed by the amount set forth in each section of §§ 112.25 through 112.45. Fines are to be assessed on a per violation basis, with each day of a continuing violation constituting a separate violation, or each occurrence of a violation constituting a separate violation, whichever is appropriate given the nature of the violation. The fines shall begin to accrue on the first business day after the 30 day cure period has terminated. Where a specific consumer protection provision does not contain a specific amount of a fine, the City Manager may assess a fine up to $250 per violation.
(4) Prior to ordering a refund or assessing a fine, the City Manager shall provide the franchisee with notice of the city's intention to assess a refund and/or fine, which notice shall contain a description of the alleged violation. Following receipt of such notice, the franchisee shall cure or commence to cure such violation. Final cure of a violation shall toll the accrual of assessed fines and refunds. Where a specific consumer protection provision does not contain a specific amount of time for a franchisee to cure a violation, the franchisee shall have 30 calendar days from the date of receipt of the written notice to file a written response with the City Manager. The city and the franchisee shall make good faith reasonable efforts to resolve the dispute in question. A management level employee of the franchisee shall sign the franchisee's written response and all statements contained therein will be regarded as material representations to the city.
(5) Prior to ordering a refund and/or assessing a fine, the City Manager shall consider any justification or mitigating factor advanced in the franchisee's written response, including, but not limited to, rebates or credits to the subscriber or the franchisee's good faith efforts to cure the violation. The City Manager may, after consideration of the response of the franchisee, waive or reduce any proposed refund or fine. In the case of a violation of this subchapter or any franchise agreement, the City Manager shall not assess any fine if the franchisee has reasonably resolved the complaint or cured the violation within a reasonable time frame not to exceed ten days. Such time period may be extended for good cause shown. If the City Manager determines ultimately to impose a fine, the fine shall begin to accrue from the date the franchisee received the written notice of violation. Each day of a continuing violation shall constitute a separate violation for purposes of imposing fines. However, an affected subscriber may be entitled to a credit or refund as provided herein. It is the intent of the city to determine refunds and/or fines as a reasonable estimate of the damages suffered by the city and/or the subscribers.
(6) Subsequent to the notice of proposed refund and/or fine to the franchisee and consideration of the franchisee's response, if any, the City Manager may issue an assessment of refund or fine. The refund and/or fine shall be paid within 30 days of written notice to the franchisee. The City may enforce payment of the refund or fine in any court having jurisdiction or by drawing down any security fund submitted by the franchisee.
(Ord. 1406, passed 5-15-02)