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(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)
(a) There is hereby created an Advisory Board on Consumer Affairs, which shall be appointed by the Director of Community Development upon the recommendation of the Chief Inspector and with the approval of the Mayor, to act in an advisory capacity on consumer protection.
(b) The Advisory Board shall consist of not less than seven members, who shall be residents of the City and shall have the following qualifications, in addition to an adequate background in fields relating to consumer protection problems:
(1) At least one member shall be an attorney.
(2) At least one member shall be an accountant or a person holding an advanced degree in economics.
(3) At least one member shall have had at least five years' business or administrative experience in the ownership or management of a commercial enterprise, or hold an advanced degree in business administration.
(4) At least two members shall be active in consumer affairs.
(5) At least two members shall be representatives of the general public.
(c) The members of the Advisory Board shall serve without compensation and shall not have a substantial ownership interest in any business subject to regulations by this chapter. The first three members appointed shall continue in office for terms of three years, the next two members for terms of two years, the next two for terms of one year, respectively, and all other members in excess of seven shall serve for an initial term of one year, but all successors shall be appointed for terms of three years. Provided, however, that upon the expiration of his term a member shall continue to serve until his successor has been appointed.
(d) The Advisory Board shall elect its own chairman annually, and the Chief Inspector shall serve as secretary and provide such other administrative services as may be necessary. Any member of the Board may be removed by the Director upon a showing of inefficiency, neglect of duty or malfeasance. The nonattendance at three consecutive Board meetings without good cause shall be presumed to be such neglect of duty as to warrant removal. Meetings of the Board shall be held at least once each calendar quarter at a time and place to be designated by the chairman. The Chief Inspector shall give a report of his operations at such meeting.
(e) The duty of the Advisory Board shall be to consult with and advise the Chief Inspector, but not to direct his conduct of the consumer protection program of the City. The Advisory Board may make such recommendations as to operations of the consumer protection program and amendment of or additions to substantive ordinances and regulations of the City as it deems appropriate in writing, and a copy thereof shall be forwarded to the Mayor, Clerk of Council. Recommendations as to amendment of or additions to ordinances or regulations shall be forwarded to the chairman of the Consumer Protection Committee of Council for consideration by that Committee. The Advisory Board shall prepare and adopt its own regulations and procedures which shall be approved by the Department of Law and shall be effective thirty days after publication in the Toledo City Journal.
(f) The Advisory Board at the request of the Chief Inspector, upon the petition of ten or more consumers or upon its own initiative shall recommend to the Director of Community Development or to Council for passage rules, regulations and ordinances declaring specific practices in consumer transactions to be unconscionable and prohibiting the use thereof. In recommending such action, the Board shall consider among other things:
(1) The degree to which the practice unfairly takes advantage of the lack of knowledge, ability, experience or capacity of consumers;
(2) Knowledge by those engaging in the practices of the inability of consumers to receive benefits properly anticipated from the goods or services involved;
(3) Gross disparity between the price of goods or services and their value as measured by the price at which similar goods or services are readily obtainable by other consumers or by other tests of true value;
(4) The fact that the practice may enable suppliers to take advantage of the inability of consumers reasonably to protect their interests by reason of physical or mental infirmities, illiteracy or inability to understand the language of the agreement, ignorance or lack of education or similar factors;
(5) The degree to which terms of the transaction require consumers to jeopardize money or property beyond the money or property immediately at issue in the transaction;
(6) The degree to which the natural effect of the practice is to cause or aid in causing consumers to misunderstand the true nature of the transaction or their rights and duties thereunder;
(7) The extent or degree to which the writing purporting to evidence the obligation of the consumer in the transaction contains terms or provisions or authorizes practices prohibited by law; and
(8) Definitions of unconscionability in statutes, regulations, rulings and decisions of legislative, administrative or judicial bodies in this State or elsewhere.
(g) All meetings of the Advisory Board shall be open to the public, and the Advisory Board may conduct such public hearings as it deems appropriate dealing with all matters involving consumer protection.
(h) The Chief Inspector may call public meetings of the Advisory Board for the consideration of the affairs of his Division, and the Chief Inspector shall be chairman of such meetings.
(i) All evidence adduced at any public hearings shall be under oath administered by the chairman of the hearing, and a record of all hearings shall be maintained.
(1952 Code § 26-7-40)
No person shall misrepresent the mileage of a motor vehicle so as to show a lesser mileage reading than recorded by the instrument, or when the vehicle is in use, by disconnecting the odometer or by interfering with its normal operation in any other way; provided, however, that this shall not be construed to prevent the service, repair or replacement of an odometer which by reason of normal wear, use or through damage requires service, repair or replacement.
(1952 Code § 26-7-50)
(1) "Consumer transaction" means a sale, lease, assignment, award by chance or other transfer of an item of goods, a service, franchise or an intangible to an individual for purposes that are primarily personal, family or household or solicitation to supply any of these things.
(2) "Claim" means any obligation or alleged obligation arising from a consumer transaction.
(3) "Debt collection" means any action or conduct in connection with the collection of claims that are owed or due to a supplier by a consumer.
(4) "Debt collector" means any person, business organization or corporation engaging in debt collection.
(1952 Code § 26-7-70)
In the course of engaging in debt collection, a debt collector shall not:
(a) Threaten physical violence to the person or property of another;
(b) Falsely, wrongfully or maliciously accuse any person of fraud or crime, or threaten to cause the arrest of any person when no such right exists;
(c) Threaten to enforce a substantive or remedial right with knowledge that the right does not exist;
(d) Communicate with the debtor or person related to him with such frequency or at extremely inconvenient hours or in such a manner as can reasonably be expected to abuse or harass him;
(e) Make, or threaten to make, false accusations to another person, including any credit reporting agency, that a consumer is willfully refusing to pay a bona fide debt when the debt collector has knowledge of any defense to the claim;
(f) Communicate or threaten to communicate with a person's employer with respect to a delinquent indebtedness, other than for the sole purposes of verifying that person's employment, income, pay period or home address, except that communication is not prohibited when such person works for an employer which by law exempts his wages from garnishment. Nothing herein shall prohibit a debt collector from answering questions asked of the debt collector expressly and without solicitation by the consumer's employer, or from communication without any restrictions with employers after judgment. This subsection shall not apply to any person whose primary activity is the gathering of information, who does not directly collect debts and who is not an employee of one who collects debts;
(g) Use or distribute for sale any written communication which is falsely represented to be a document authorized, issued or approved by a court, a public official or any other legally constituted or authorized authority, or which would appear to be such to a person of ordinary intelligence;
(h) Make any false representation or implication that any debt collector is vouched for, bonded by or affiliated with any person, or an instrumentality, agent or official of this City or State or any agency of the Federal, State or local government;
(i) Disclose, publish or communicate information relating to a consumer's indebtedness other than the mere existence of a debt to any relative or family member of the consumer other than a person having a lawful obligation to pay the debt, except through proper legal action or process or at the express and unsolicited request of the relative or family member. Nothing herein shall prohibit a debt collector from answering questions asked of him expressly and without solicitation by the relative or family member or from communication with any person present in the household of the consumer;
(j) Cause expense to any person in the form of long distance telephone tolls, telegram fees or other charges incurred by a medium of communication by concealment of the true purpose of the notice, letter, message or communication, provided that the total expense is less than one hundred fifty dollars ($150.00);
(k) Disclose, publish or communicate any information relating to a consumer's indebtedness to any other person (except credit reporting agencies and their customers, check services and their customers, credit card service companies and their customers, trade association members and internally within a corporation, its affiliates and subsidiaries) by general publication or posting any list of consumers, commonly known as "deadbeat lists" unless such information is a matter of public record, or in any other manner other than through proper legal action, process or proceeding;
(l) Represent that an existing obligation of the consumer may be increased by the addition of attorney's fees, court costs, interest, investigation fees, service fees or any other fees or charges when in fact, such fees or charges may not legally be added to the existing obligation, or unless a court has actually added such fees or charges in a final judgment;
(m) Seek or obtain any written statement or acknowledgement in any form containing an affirmation of any obligation by a consumer who has been declared bankrupt, without clearly disclosing both orally and in writing the nature and consequences of such affirmation and the fact that the consumer is not legally obligated to make such affirmation;
Nothing in this section shall deprive any person from making a complaint of a violation of any State or Federal law, or prohibit the Chief Inspector from referring complaints to the appropriate licensing authority or regulatory agency.
(1952 Code § 26-7-71)
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