(a) Pre-hearing Procedures.
(1) Whenever the Chief Inspector has reasonable cause to believe that a violation of this chapter exists or has occurred, he shall cause the Consumer Protection Agency to undertake an investigation of the alleged violation. If, after agency investigation, it appears to the Chief Inspector that there is, in fact, reasonable and probable cause to believe that a violation of this chapter exists or has occurred, the Chief Inspector may cause written notice thereof to be served upon the alleged violator, and by conference and consultation, endeavor to persuade the violator to take remedial action and to provide written assurance of future voluntary compliance with this chapter. If by conference and consultation, the Chief Inspector finds that there is no reasonable and probable cause to believe a violation of this chapter exists or has occurred, the Chief Inspector shall dismiss such written notice without prejudice to other civil and criminal actions.
(2) Any written notice served upon the alleged violator by the Chief Inspector to provide written assurance of voluntary compliance shall contain the following:
A. The identification of the parties;
B. That there is reasonable cause to believe that a violation of the Toledo Consumer Sales Practices Act exists or has occurred (attaching a copy of the section(s) involved);
C. The fact that the assurance of voluntary compliance shall not be considered as evidence of a violation of this chapter;
D. That failure to assure voluntary compliance may result in the agency instituting a cease and desist proceeding pursuant to this section;
E. That failure to achieve voluntary compliance shall be presumed if the signed written assurance of voluntary compliance has not been received by the Chief Inspector within two weeks of the date of service of the notice pursuant to Section 795.14, and that the Chief Inspector, for good cause shown, may extend this period of time for not more than thirty days;
F. That any alleged future violation of those provisions of this chapter which are contained in this written assurance of voluntary compliance shall be considered noncompliance with the conference and consultation provisions of this chapter and the Chief Inspector, after agency investigation, may immediately commence a cease and desist proceeding, pursuant to the following provisions of this section.
(b) Hearing Procedures.
(1) If the alleged violator fails to provide written assurance of voluntary compliance within the period stated in subsection (a) (2) E. or F. hereof, the Chief Inspector may prepare and issue a cease and desist complaint which shall include a short and simple statement of the essential facts of the case and a statement of the provisions of this chapter violated.
(2) The Chief Inspector shall set the case for hearing before a Hearing Officer hired by the Mayor specifically for such purpose under an independent contract. The Hearing Officer shall be an individual admitted to the bar by order of the Supreme Court of Ohio. Such hearing shall be held in a timely manner, but no sooner than fourteen days from the service of notice of such hearing upon the supplier, in accordance with the procedures set forth in Section 795.14. A copy of the cease and desist complaint, together with any consumer complaint involved, shall accompany the notice of the hearing. Such notice shall include:
A. The date, time and place of the hearing.
B. The supplier's right to legal counsel.
C. The supplier's right to present evidence, as provided in paragraph (3) hereof, and advice that the Chief Inspector is empowered to issue subpoenas for witnesses and relevant evidence upon written request of the supplier.
D. The supplier, in writing, may request of the Chief Inspector, not less than seven working days before the hearing, a summary of the facts, names of witnesses and evidence to be presented by the agency, which shall be provided not less than four days before the hearing.
E. Advice that copies of the Toledo Consumer Sales Practices Act and agency regulations may be inspected at the agency during regular business hours.
F. Advice that failure to appear at the hearing may cause a cease and desist order to be issued.
G. A description of any information or documents requested by the agency or subpoenaed by the Chief Inspector which the supplier is to bring with him to the hearing.
H. Advice that the Hearing Officer may, for good cause shown, grant a continuance of the hearing date upon request of the supplier or the Chief Inspector, for not more than thirty days.
(3) If the supplier desires to offer evidence at such hearing, a written notice thereof must be received by the Chief Inspector not less than two working days before the hearing, setting forth a summary of the facts, names of witnesses and evidence to be presented.
(4) If the supplier has been duly notified and fails to appear, personally or by counsel, for the hearing, the Hearing Officer shall proceed to hear the complaint on the evidence adduced.
(5) The Hearing Officer shall conduct the hearing in accordance with the laws of Ohio, but the hearing shall not be governed by formal rules of evidence. All parties shall have the right to cross-examine all witnesses who testify at the hearing. All hearings shall be recorded by use of any adequate mechanical or electronic recording device. Any supplier appealing the decision of the Hearing Officer may review any such record of the proceedings. Suppliers may, additionally, provide official court reports at their own expense, and any party may review any such record of the proceedings.
(6) The Hearing Officer shall:
A. Identify for the record all parties.
B. Determine that the supplier has been duly served with notice of the hearing and a copy of the cease and desist complaint, and that voluntary compliance was not obtained.
C. Advise all unrepresented parties of the right to counsel.
D. Administer an oath to all witnesses, pursuant to Section 795.08 (i).
E. Upon request of any party, separate witnesses.
(7) The agency shall have the burden of proving, by a preponderance of the evidence, that a violation of this chapter exists or has occurred. The Chief Inspector or his representative shall present evidence in support of the cease and desist complaint. The supplier or his counsel may cross-examine any witness regarding his testimony.
(8) The supplier may present evidence, including the testimony of witnesses, if notice thereof has been duly received, pursuant to paragraph (3) hereof. The Chief Inspector or his representative shall have the right to cross-examine the supplier and other witnesses testifying in the supplier's behalf.
(9) If, at the close of the evidence, or after a reasonable time for deliberation, the Hearing Officer finds upon the evidence adduced on the whole record:
A. That the agency has not shown by a preponderance of substantial, reliable and probative evidence that a violation exists or has occurred, then he shall dismiss the cease and desist complaint, without prejudice to other civil and criminal actions;
B. That the agency has shown by a preponderance of substantial, reliable and probative evidence that a violation exists or has occurred, then he shall prepare a decision, stating separately his findings of fact and conclusions of law and shall recommend that the Chief Inspector prepare a cease and desist order in accordance therewith. The order shall be issued by the Chief Inspector forthwith, and shall be served upon the supplier as provided for in Section 795.14, together with a copy of the decision, and upon any attorney of record.
(10) The cease and desist order shall contain the following:
A. The basis of jurisdiction;
B. A statement that voluntary compliance was not obtained;
C. The specific activities found by the Hearing Officer to be in violation of this chapter;
D. The nature of the penalties which may be imposed for the violation of the cease and desist order;
E. Other terms and conditions the Hearing Officer may deem appropriate to achieve the purpose of this chapter and the cease and desist order;
F. Advice of the supplier's right to appeal the issuance of the cease and desist order, and the fact that the cease and desist order becomes final and enforceable ten days after the issuance of such order, unless a stay is perfected pending appeal, pursuant to Ohio R.C. Chapter 2505;
G. Advice of the supplier's right to seek a stay of the cease and desist order pursuant to paragraph (11) hereof.
(11) The Chief Inspector may grant a stay of any cease and desist order issued pursuant to this section, for good cause shown, for not more than thirty days, provided the supplier does not appeal the order.
(12) If no stay is granted and if no appeal is taken pursuant to Ohio R.C. Chapter 2505, then the order shall become final and be enforced according to its terms by the Chief Inspector.
(1952 Code § 26-7-32; Ord. 316-78)