§ 17. Enforcement remedies and procedures.

(a)

A Franchisee shall not be relieved of its obligation to comply with any of the provisions of this Ordinance or a Franchise Agreement adopted pursuant to this Ordinance by reason of any failure of the County to enforce prompt compliance.

(b)

Remedies and enforcement procedures.

(1)

Responsibility for the administration of this Ordinance and any Franchise granted pursuant to this Ordinance, and for the resolution of all complaints against the Franchisee regarding the quality of service, service outages and related matters, is hereby delegated to the County Manager or his designee, who is empowered, among other things, to settle, or compromise any controversy arising from operations of the Franchisee, either on behalf of the County or any Subscriber, in accordance with the best interests of the public. In cases where requests for service have been ignored or in cases where the service provided is alleged to be in noncompliance with this Ordinance or a Franchise Agreement, the County Manager or his designee shall have the power to require the Franchisee to provide service consistent with the terms of the Franchise, if in the opinion of the County Manager or his designee such request for service is reasonable. Any Person aggrieved by a decision of the County Manager, including the Franchisee, may appeal the matter to the County Commission for hearing and determination. The Board of County Commissioners may accept, reject or modify the decision of the County Manager. No adjustment, settlement, or compromise, whether instituted by the County Manager or by the Board of County Commissioners shall be contrary to the provisions of the Ordinance, any Franchise issued pursuant to the Ordinance or this Agreement, and neither the County Manager nor the Board of County Commissioners, in the adjustment, settlement, or compromise of any controversy shall have the right or authority to add to, modify or delete any provision of the Ordinance or of the Franchise or this Agreement, or to interfere with any rights of Subscribers or any Franchisee under applicable federal, or state law or private contract.

(2)

Whenever the County has reason to believe that a Franchisee has violated any provision of a Franchise Agreement or this Ordinance, the County shall first notify the Franchisee in writing of the violation and demand correction within the time period specified in this subsection, which shall not be less than thirty (30) days or in the cases of violations measured on a quarterly or longer period (such as customer service standards), Franchisee's cure period shall be no less than one (1) such period. Said notice shall indicate with reasonable specificity the violation alleged to have occurred. If a Franchisee fails to demonstrate to the reasonable satisfaction of the County that no violation exists, or if Franchisee fails to correct the violation within the time prescribed, or if a Franchisee is unable to correct the violation and fails to commence corrective action within the time prescribed to diligently remedy such violation, the Franchisee shall then be given written notice of not less than ten (10) days of a hearing before the County Manager. The County Manager shall hear and consider all relevant evidence and thereafter render a written decision, which shall be delivered to the Franchisee by certified or registered mail.

(3)

In the event the County Manager finds that a Franchisee has corrected the violation or promptly commenced correction of such violation after notice thereof from the County and is diligently proceeding to fully remedy the violation, or that no violation has occurred, the proceedings shall terminate and no penalty or other sanction shall be imposed.

(4)

In the event the County Manager finds that a violation exists and that a Franchisee has not corrected the same in a satisfactory manner or did not promptly commence and diligently proceed to correct the violation, the County Manager may impose a fine following the procedures set forth below.

(5)

Prior to assessing a fine, the County Manager shall mail to the Franchisee a written notice by certified or registered mail of the proposed fine, specifying the violation at issue. This notice may be combined with the written decision referred to in subsection (b)(2) above and shall be referred to hereafter as the Assessment Letter. The Franchisee shall have thirty (30) days from the date of receipt of the Assessment Letter to file a written response to the notice of the County Manager. Written response of the Franchisee shall be signed by management level employee of Franchisee and all statements contained will be regarded as material representations to the County.

(6)

Prior to assessing a fine, the County Manager or designee shall consider any justification or mitigating factor advanced in the written response of the Franchisee, including but not limited to rebates or credits to the Subscriber or a cure or commencement of a cure of the violation. The County Manager may, after consideration of the response of the Franchisee, waive or reduce any proposed refund or fine.

(7)

Any fine will commence as of the date of the last day of the applicable cure period, or if Franchisee challenges the assessment in a court of competent jurisdiction, within thirty (30) days of a final nonappealable decision that the assessment is valid. This fine shall constitute liquidated damages to the County for the violation and the County may enforce payment of the fine in any court having jurisdiction. It is the intent of the County to determine fines as a reasonable estimate of the damages suffered by the County or its Subscribers.

(8)

Intentional material misrepresentation by a Franchisee in any response in connection with a violation of this chapter shall be considered a material breach of the Franchise Agreement, subject to penalty of no less than one thousand dollars ($1,000.00) in liquidated damages per violation to the County, and may be grounds for the imposition of damages and Franchise revocation in the event of repeated violations.

(9)

Franchisee's material failure to comply with any other provision, where a fine is not specified herein, shall result in a fine in the amount of two hundred fifty dollars ($250.00) per day, or part thereof, that the violation continues.

(10)

Any Person who intentionally files a false complaint against a Franchisee shall be subject to a fine in the amount of one hundred dollars ($100.00) for the first violation and one hundred fifty dollars ($150.00) for each subsequent violation.

(11)

Franchisee may submit an appeal regarding any decision of the County Manager directly to the Board of County Commissioners within thirty (30) days of the date of the notice of the decision to the Franchisee. Such appeal shall be made in writing and submitted by certified mail. The Grantee shall have the right to appeal the County's decision to a court of competent jurisdiction. Pending such appeal to the Board of County Commissioners or a court of competent jurisdiction, the assessment of any liquidated damages subject of the appeal shall continue but collection or payment is stayed.

(c)

The County may, after following the procedures set forth in subsection 17(b), apply any one (1) of the following remedies in the event a Franchisee violates this Chapter, its Franchise Agreement or applicable local, state or federal law:

(1)

Impose liquidated damages in such amount, whether on a per diem, per incident, or other measure of violation, as provided in the Franchise Agreement. Payment of liquidated damages by the Franchisee will not relieve the Franchisee of its obligation to comply with the Franchise Agreement and the requirements of this Chapter.

(2)

Revoke the Franchise in accordance with federal and state law, due process and the provisions of the Franchise Agreement and this Chapter pursuant to the procedures specified in section 18.

(3)

Seek any other remedy, the County may seek legal or equitable relief from any court of competent jurisdiction.

(4)

Where the County elects to assess liquidated damages as provided in this Ordinance or the Franchise and such liquidated damages have been paid, such damages shall be the County's exclusive financial remedy for the time period assessed, unless the County can demonstrate its actual damages exceed the paid liquidated damages, in which case the County may pursue any remedy. Nothing in this section is intended to preclude the County from exercising any other right or remedy with respect to a breach that continues past the time the County stops assessing liquidated damages for such breach.

(d)

In determining which remedy or remedies are appropriate, the County shall take into consideration the nature of the violation, the Person or Persons bearing the impact of the violation, the nature of the remedy required in order to prevent further violations, and such other matters as the County determines are appropriate to the public interest.

(e)

Failure of the County to enforce any requirements of a Franchise Agreement or this Chapter shall not constitute a waiver of the County's right to enforce that violation or subsequent violations of the same type or to seek appropriate enforcement remedies.

(Ord. No. 2006-6, 2-28-06)