Desert Hot Springs Municipal Code Art. II Video Customer Bill of Rights

The purpose of this article is to implement and expand upon the powers and duties created by the state Video Customer Service Act (California Government Code Sections 53088 et seq., or as hereafter amended). Any provision of this article not directly authorized by the Video Customer Service Act is based on the City’s general police powers.

(Prior code § 112.40)

For the purpose of this article, the definitions of the Video Customer Service Act (California Government Code Sections 53088 et seq., or as hereafter amended) are incorporated herein by this reference.

(Prior code § 112.41)

A. All customer service standards and consumer protection provisions of the state Video Customer Service Act (California Government Code Sections 53088 et seq.), as it now exists or may be amended, are incorporated herein by this reference.

B. As authorized by State law, the City Council may from time to time adopt additional customer service standards and consumer protection provisions that exceed those of the Video Customer Service Act, as it deems necessary, in order to ensure that residents of the City receive high quality service from video providers.

(Prior code § 112.42)

There is established the Video Customer Dispute Board of the City, whose purpose shall be to resolve disputes between video providers and residents of the City regarding the provider’s compliance with the provisions of the Video Customer Service Act and/or this article. Members of the Board shall be appointed by the Mayor and shall then serve at the pleasure of the City Council. Members may be removed from office, with or without just cause, by a majority vote of a quorum of the Council.

(Prior code § 112.43)

The City Clerk shall act as Secretary to the Video Customer Dispute Board and in that capacity shall receive complaints from aggrieved parties pursuant to this article, set hearings on those complaints before the Board, provide notice to interested parties of hearing dates and final decisions of the Board, maintain records of all Board proceedings, and perform such other services as the Board deems necessary to its proper functioning.

(Prior code § 112.44)

A. Generally. In reliance on State law and its general police powers, the City does impose a filing fee in order to recover its costs of providing dispute resolution services pursuant to the Video Customer Service Act and/or this article.

B. Filing Fee. Parties filing complaints with the Video Customer Dispute Board shall pay an up-front filing fee in the amount deemed necessary by the City Council to defray and/or recover the City’s estimated costs of providing dispute resolution services. The exact amount of the fee shall be set by resolution of the City Council.

C. Fee Shifting. If the Video Customer Dispute Board concludes that a video provider committed a nonmaterial breach of the Video Customer Service Act and/or this article, then the Board shall order the video provider to pay the complaining party one-half of any filing fee paid by the complaining party. If the Video Customer Dispute Board concludes that a video provider committed a material breach of the Video Customer Service Act and/or this article, then the Board shall order the video provider to pay the complaining party the full filing fee paid by the complaining party.

D. Fee Waiver. Any individual may petition the City Council for a fee waiver based on practical inability to pay or on the apparent factual merits of a given case. If a fee waiver is granted and the complaining party subsequently prevails, then the Board shall order the video provider to pay the City an amount equal to the portion of the filing fee that would have been imposed on the video provider had a waiver not been granted.

(Prior code § 112.45)

A. Parties wishing to submit a dispute to the Video Customer Dispute Board shall file a written complaint with the Board’s Secretary on a form to be provided by the City. Complaint forms shall be available at City Hall and shall at a minimum require the complaining party to provide all of the following information:

1. Identification of the parties to the dispute, including their names, addresses and phone numbers (if available).

2. Brief description of the factual background of the dispute.

3. Identification of the specific provisions of the state Video Customer Service Act or this article that were allegedly violated by the video provider.

4. Signature of the complaining party, verifying that the information contained therein is believed to be true and correct and stating that the complaining party has previously made at least one reasonable attempt to notify the video provider of the alleged violations and to resolve the dispute amicably.

B. The complaining party shall also provide the Secretary with additional copies of the complaint, one for each member of the Board and one for each party named in the complaint. Upon receipt of a properly completed complaint form, and sufficient number of copies, the Secretary shall set a date and time for a hearing on the matter. The hearing date shall be set no sooner than 30 days from the date the complaint is filed. Complaints not in proper form or lacking the sufficient number of additional copies may be rejected by the Secretary. The Secretary shall notify members of the Board and parties named in the complaint of the hearing date and shall mail or deliver copies of the complaint to them. The Secretary shall also post public notice of scheduled hearing dates in a conspicuous place at City Hall within 24 hours of any hearing date.

(Prior code § 112.46)

Any video provider named in a complaint may, but is not required to, submit to the Board a written answer to the complaint, responding to the charges therein. Such answer shall not exceed ten pages, double-spaced, not including exhibits thereto. The answer shall be filed with the Board’s Secretary during normal business hours, on or before the tenth calendar date preceding the hearing date. The video provider shall also supply the Secretary with additional copies of the answer, one for each member of the Board and one for each party named in the complaint. Answers not proper in form or lacking the sufficient number of additional copies may be rejected by the Secretary. Upon receipt of properly completed answer and sufficient number of copies thereof, the Secretary shall mail or deliver copies of the answer to members of the Board and to parties named in the original complaint.

(Prior code § 112.47)

Other than the complaint and answer specified above, no additional formal documentation regarding the dispute shall be submitted to or accepted by the Board in advance of the hearing, unless otherwise directed by the Board.

(Prior code § 112.48)

Any party named in a complaint may attend and participate in a hearing before the Board, however, such attendance and participation is not mandatory nor shall a party’s failure to appear automatically result in a default finding against that party. Members of the public who are not named in a complaint may also attend Board hearings but may not participate therein unless specifically requested to participate by a party to the proceeding or by the Board itself.

(Prior code § 112.49)

A quorum of the Board members must be physically present at a hearing in order for the Board to formally hear and evaluate a complaint. If a quorum does not exist, then the hearing shall be continued by the attending Board member or by the Board’s Secretary until the next available date, to be specified by the Secretary. The quorum of the Board in attendance at a given hearing shall select a presiding officer from its own members for that hearing.

(Prior code § 112.50)

A. Commencement. When a quorum of the Board is present, the presiding officer shall officially open the hearing by calling the subject matter and ascertaining which parties to the dispute are present and wish to orally address the Board during the hearing. The time guidelines provided by this section for presentation of arguments and evidence may be modified by the Board in its discretion so long as both sides to a given proceeding have an equal opportunity to present their case.

B. Oral Argument. Having ascertained the parties in attendance and desiring to address the Board, the presiding officer shall allow any complaining party (if in attendance) to make an opening statement to the Board if he or she so desires. The statement shall be limited to ten minutes per complaining party, unless the Board directs otherwise. Upon completion of the complaining party’s statement, the presiding officer shall allow the representative of the video provider (if in attendance) an equal amount of time to respond to the opening statements. The Board shall then allow each side a rebuttal of five minutes or such other period of time as the Board deems appropriate. After all evidence has been presented to the Board, representatives of each side may then make closing statements to the Board of no more than five minutes per statement.

C. Presentation of Evidence. No formal rules of evidence shall apply and the Board may consider any evidence it considers relevant to the dispute, whether or not presented by the parties. Tangible evidence shall be presented by the parties during their oral arguments. Each side may also present the live testimony of two other persons in support of their position. Such testimony shall not exceed five minutes per person called to testify and shall not be counted against the time otherwise allotted to that side for argument of their case.

D. Deliberation. Upon conclusion of the parties’ closing statements, the Board members shall then deliberate openly among themselves and may ask questions of any person in attendance. The Board may render a decision at that time or may continue the hearing until another date to continue their deliberations. All decisions shall be made by a majority vote of the quorum present at the original hearing. If the quorum deadlocks on any aspect of the decision, then the entire matter shall automatically be referred to the City Council for a new hearing and final disposition.

E. Termination. When the Board has reached a decision or deadlock, the presiding officer shall announce the decision or deadlock for the record and terminate the proceedings. The Board may also terminate proceedings at any time prior to reaching a decision or deadlock, upon the request of a complaining party. The Secretary shall provide notice of the Board’s decision or deadlock to all parties to the proceeding.

(Prior code § 112.51)

In any given case, the Board’s inquiry shall be limited to determining, by a preponderance of the evidence, whether or not a video provider has breached a provision of the Video Customer Service Act and/or this article. If a breach is found, the Board shall also determine whether the breach was material. Unless otherwise defined by the Video Customer Service Act, “material breach” means any substantial and repeated failure to comply with the consumer standards set forth in the Video Customer Service Act and/or this article.

(Prior code § 112.52)

Upon a finding by the Board of a material breach by a video provider, the Board shall give the video provider written notice of the material breach and allow the video provider at least 30 days from the receipt of the notice to remedy the specified breach. In the case of a Board finding of non-material breach by a video provider, the Board shall place a written record of its finding in the Board’s and City’s files regarding that video provider. The Board shall also provide the video provider and all parties to the proceeding with written notice of its finding.

(Prior code § 112.53)

A. Generally. If the video provider does not remedy a specified material breach within 30 days from the receipt of notice to remedy the same, then the Board may in its discretion impose a monetary penalty on the video provider consistent with the Video Customer Service Act and/or this section. However, no monetary penalties shall be assessed for a material breach where the breach is out of the reasonable control of the video provider.

B. First Failure to Remedy. Upon a video provider’s first failure to remedy a specified breach within the 30-day period provided by this section, the Board may impose a monetary penalty of $200 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for a first-time failure to remedy a specified breach shall not exceed $600.

C. Second Failure to Remedy. Where the Board has previously imposed a monetary penalty on a provider for failure to remedy a specified material breach, if a video provider commits a subsequent material breach of the same nature within 12 months of imposition of the first monetary penalty and fails to remedy it within the 30-day period provided by this section, then the Board may impose a monetary penalty of $400 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for a second failure to remedy a specified breach shall not exceed $1,200.

D. Third or Further Failures to Remedy. Where the Board has twice previously imposed a monetary penalty on a provider for failure to remedy a specified material breach, if a video provider commits a third or further material breach of the same nature within 12 months of imposition of the second monetary penalty and fails to remedy it within the 30-day period provided by this section, then the Board may impose an additional monetary penalty of $1,000 for each day of breach following the expiration of the time allotted by this article. However, the total penalty for such additional failures to remedy a specified breach shall not exceed $3,000 per occurrence.

(Prior code § 112.54)

A. Decisions of the Video Customer Dispute Board may be appealed to the City Council upon request by the Board, the City Manager, Mayor, or any Councilmember. Dates for appeal hearings before the City Council shall be set by the City Clerk. Absent such an appeal, decisions of the Video Customer Dispute Board shall be final with respect to the administrative process provided by this article.

B. The appellate hearing shall be a new hearing and shall be conducted by the Council in substantial conformity with the procedures provided by this article for hearings before the Board, unless otherwise directed by the Council. After the hearing and the Council’s arrival at a decision, the City Clerk shall provide all parties to the proceeding with notice of the Council’s decision.

C. In the event that the Council finds a breach by the video provider, the City Clerk shall give notice of the same to all parties to the proceeding, consistent with the procedures provided herein for findings of breach by the Board. Upon a finding of breach, the Council may also shift all or half of the original filing fee to the video provider consistent with this article. If a specified material breach found by the Council has not been corrected by the video provider within 30 days of receipt of notice thereof, then the Council may impose a monetary penalty on the video provider consistent with this article.

(Prior code § 112.55)

Consistent with the Video Customer Service Act, nothing in this article shall preclude a party affected by the Video Customer Service Act and/or this article from utilizing any judicial remedy available to that party without regard to this article. Actions taken by the Video Customer Dispute Board or the City Council pursuant to the Video Customer Service Act and/or this article shall not be binding upon a court of law. For this purpose a court of law may conduct a de novo review of any issues presented.

(Prior code § 112.56)