§ 11A-44. Procedures.

(1)

Any person aggrieved by an unlawful contracting, procurement, bonding or financial services practice prohibited by this article must file a written, signed complaint with the Director of DBD within one hundred eighty (180) days after the alleged unlawful practice occurs.

(2)

The complaint shall set forth the facts upon which it is based with sufficient specificity to identify the respondent. Such complaint may be amended; however, the amended complaint must be filed within the period prescribed by Section 11A-44(1).

(3)

Upon the filing of such a complaint, the Director of DBD shall serve notice upon the complainant acknowledging such filing and advising the complainant of the time limits provided under this article.

(4)

Upon the filing of a complaint, the Director of DBD shall promptly serve the complaint and a written notice on the respondent or person charged with the commission of a discriminatory practice, setting forth the rights and obligations of the parties including, but not limited, the right to a fair and full hearing on the matter before a Hearing Officer. Such service shall be by certified mail.

(5)

A person who is not named as a respondent in a complaint, but who is identified as a respondent in the course of investigation, may be joined as an additional or substitute respondent upon written notice to such person from the Director of DBD. Notice shall be served upon such additional or substitute respondent within ten (10) days of such joinder or substitution and shall explain the basis for the Director of DBD's belief that the person to whom the notice is addressed is properly joined as a respondent.

(6)

Each respondent may file an answer to the complaint, no later than twenty (20) days after receipt of complaint and notice from the Director of DBD.

(7)

In conducting an investigation of a complaint, the Director of DBD shall have access at all reasonable times to premises, records, documents, individuals, and other evidence or possible sources of evidence relevant to the complaint and may examine, record, photograph and copy such materials and take and record the testimony or statements of such persons and issue such interrogatories as are reasonably necessary for the furtherance of the investigation. The Director of DBD may enter an order compelling answers to interrogatories. The Director of DBD may issue subpoena's to compel access to or the production of materials, or appearance of persons, to the same extent and subject to the same limitations as all other subpoenas issued by the county court of Miami-Dade County, Florida.

(8)

In conducting investigations of discriminatory activities, if the Director of DBD has reason to believe that a "pattern or practice" of discrimination exists, the Director of DBD shall have the ability to initiate complaints and to obtain information and/or evidence from other persons or businesses in the effort to determine whether a "pattern or practice" of discriminatory activities has, or is, occurring, even though specific complaints have not been filed against those other persons or businesses. Such ability will include all of the powers available to the Director of DBD as provided for in Article VII herein, including subpoena powers.

(9)

Subpoenas.

(a)

Upon written application to the Director of DBD, a party shall be entitled to the issuance of a reasonable number of subpoenas to compel the attendance of witnesses and/or the production of documents at a hearing or at a deposition. Subpoenas issued at the request of a party shall show on their face the name and address of such party, shall state that they were issued at the party's request and shall be subject to the same limitations as subpoenas issued by the County Court of Miami-Dade County, Florida.

(b)

Witnesses summoned by the subpoena of the Director of DBD shall be entitled to the same witness and mileage fees as are witnesses in proceedings in the County Court of Miami-Dade County, Florida. Fees payable to a witness summoned by subpoena issued at the request of a party shall be paid by the party, or where the party is unable to pay, shall be paid by the Director of DBD.

(c)

Within ten (10) days after service of a subpoena upon any person, such person may petition the Director of DBD to revoke or modify the subpoena. The Director of DBD shall grant the petition if it finds that the subpoena requires appearance or attendance at an unreasonable time or place, that it requires production of evidence which does not relate to any matter under investigation, that it does not describe with sufficient particularity the evidence to be produced, that compliance would be unduly onerous, or for other good reason.

(d)

In the case of the contumacy or refusal to obey a subpoena, the Director of DBD or any party may seek enforcement of a subpoena issued under the authority of this article by filing a petition for enforcement in the County Court of Miami-Dade County, Florida.

(e)

In any enforcement proceeding authorized by this article, the court may award to the prevailing party all or part of the costs and attorney's fees incurred in obtaining the court order as authorized by the Florida Rules of Civil Procedure.

(f)

Any person who willfully fails or neglects to attend and testify or to answer any lawful inquiry or to produce records, documents or other evidence, if in his or her power to do so, shall be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(g)

Any person who, with the intent thereby to mislead the Director of DBD or the Hearing Officer, makes or causes to be made any false entry or statement of fact in any report, account, record or other document submitted to the Director of DBD pursuant to its subpoena or other order, or shall willfully neglect or fail to make or cause to be made full, true and correct entries in such reports, accounts, records or other documents, or shall willfully mutilate, alter or by any other means false any documentary evidence, shall be fined by the County Court of Miami-Dade County, Florida, not more than five hundred dollars ($500.00) or imprisoned not more than sixty (60) days or both.

(h)

The Director of DBD shall have the ability to initiate complaints and to issue subpoenas as provided for in this section to persons or businesses if there is a belief or evidence that a "pattern or practice" of discrimination appears to exist.

(10)

The provisions of Rule 1.090, Florida Rules of Civil Procedure, shall govern the computation of any period of time prescribed or allowed by this article or by rules, regulations, or orders adopted pursuant to this article.

(11)

All papers or pleadings required by this article to be served may be served by certified mail or in accordance with Rule 1.080, Florida Rule of Civil Procedure.

(12)

In the case of a complaint of contracting, procurement, bonding or financial services discrimination, the Director of DBD shall make a determination consisting of a final investigative report and issue a "cause" or "no cause" determination not later than one hundred eighty (180) days from receipt of the complaint or amended complaint. Provided, however, if the Director of DBD is unable to make a determination of the alleged discriminatory contracting, procurement, bonding or financial services practice within one hundred eighty (180) days after the filing of the complaint, the Director shall notify the complainant and the respondent in writing of the reasons for not being able to make a determination of discriminatory practice.

(13)

If the Director of DBD has not issued a finding within one hundred eighty (180) days, the complainant may request a right to sue letter.

(14)

At the end of any investigation under this article, the Director of DBD shall prepare a determination consisting of a final investigative report. The complainant has fourteen (14) calendar days to request a hearing before a Hearing Officer, or to request a right to sue letter. In a case where a right to sue letter has been issued, the complainant has ninety (90) days to pursue legal action in a court of appropriate jurisdiction. If a hearing is requested, the complainant must submit a written request to the Director of DBD within fourteen (14) days of receipt of the final investigative report.

(15)

Upon receipt of a written request for a hearing, the Director of DBD shall forward the final investigative report to a Hearing Officer. The Director's investigative report shall contain:

(a)

The names and dates of contacts with witnesses;

(b)

A summary and the dates of correspondence and other contacts with the complainant and the respondent;

(c)

A summary description of other pertinent records;

(d)

A summary of witness statements;

(e)

Any responses to requests for discovery; and

(f)

Recommendations including, but not limited to the issues of liability for a violation of this article, affirmative action, reasonable accommodation, quantifiable damages, costs, attorney's fees, interest, civil fines, and other sanctions or penalties as outlined in Article VII.

(16)

The Director of DBD shall send a complete copy of the final investigative report by first class mail to all parties. In addition, the entire investigative file prepared by the Director of DBD or his or her designee shall be forwarded to the Hearing Officer and shall become part of the record of any hearing pursuant to this ordinance. However, the Hearing Officer may exclude any portions of the investigative file as deemed appropriate.

(17)

Scheduling and conduct of hearings:

(a)

Upon receipt of a final investigative report from the Director of DBD wherein the Director of DBD has made a determination of "cause," the Hearing Officer shall set the matter down for hearing on the next regularly scheduled hearing date or as soon thereafter as possible or as mandated herein.

(b)

The Hearing Officer shall send a notice of hearing by first class mail to the named violator at his last known address. The notice of hearing shall include but not be limited to the following:

(1)

Name of the Hearing Officer who issued the notice.

(2)

Factual description of alleged violation(s).

(3)

Date(s) of alleged violation(s).

(4)

Section of this article allegedly violated.

(5)

Place, date and time of the hearing.

(6)

Right of violator to be represented by a lawyer.

(7)

Right of violator to present witnesses and evidence.

(8)

Notice that failure of violator to attend hearing may result in civil penalty and/or other penalties or sanctions being assessed.

(9)

Notice that requests for continuances will not be considered if not received by the Hearing Officer at least ten (10) calendar days prior to the date set for hearing.

(c)

The Hearing Officers shall call hearings on a monthly basis or upon the request of the Clerk of the Board of County Commissioners. No hearing shall be set sooner than twenty (20) calendar days from the date of service of the notice of violation.

(d)

A hearing date shall not be postponed or continued unless a request for continuance, showing good cause for such continuance, is received in writing by the Hearing Officer at least ten (10) calendar days prior to the date set for the hearing.

(e)

All hearings of the Hearing Officer shall be open to the public. All testimony shall be under oath. A hearing may proceed in the absence of the named violator provided proper notice has been given as required by this section.

(f)

The proceedings at the hearing shall be recorded and may be transcribed at the expense of the party requesting the transcript.

(g)

The Clerk of the Board of County Commissioners shall provide clerical and administrative personnel as may be reasonably required by each Hearing Officer for the proper performance of his duties.

(h)

Each case before a Hearing Officer shall be presented by the parties.

(i)

The hearing need not be conducted in accordance with the formal rules relating to evidence and witnesses. Any relevant evidence shall be admitted if the Hearing Officer finds it competent and reliable, regardless of the existence of any common law or statutory rule to the contrary.

(j)

Each party shall have the right to call and examine witnesses; to introduce exhibits; to cross-examine opposing witnesses on any matter relevant to the issues even though that matter was not covered in the direct examination; to impeach any witness regardless of which party first called him to testify; and to rebut the evidence against him.

(k)

The Hearing Officer shall make findings of fact based on the evidence in the record. In order to make a finding upholding the Director of DBD's determination, the Hearing Officer must find by a preponderance of the evidence that the named violator was responsible for the violation of the relevant section of this article as charged.

(l)

If the named violator is found to have committed the violation, it may be held liable for the reasonable costs of the administrative hearing, at the discretion of the Hearing Officer.

(m)

The fact-finding determination of the Hearing Officer shall be limited to whether the violation alleged occurred and, if so, whether the person named in the violation can be held responsible for that violation. Based upon this fact-finding determination, the Hearing Officer shall either affirm or reverse the determination of the Director of DBD as to the responsibility of the named violator for violation of this article. If the Hearing Officer affirms the determination of the Director of DBD, the Hearing Officer, pursuant to this article, shall determine civil fine(s) and/or sanctions or penalties as appropriate. If the Hearing Officer reverses the determination of the Director of DBD and finds the named violator not responsible for the violation alleged in the final investigatory report, the named violator shall not be liable for the payment of any civil penalty or other sanction or penalty or administrative costs, absent reversal of the Hearing Officer's findings pursuant to this article. If the decision of the Hearing Officer is to affirm, the following elements shall be included:

(1)

Amount of civil penalty.

(2)

Amount, and/or type, of other sanctions or penalties as indicated in Section 11A-53 herein.

(3)

Administrative costs of hearing.

(n)

The Hearing Officer shall have the power to:

(1)

Take testimony under oath.

(2)

Assess and order the payment of civil penalties as provided herein. Assess and order other penalties and/or sanctions as provided herein.

(18)

In the case of a complaint of contracting, procurement, bonding or financial services discrimination, the Hearing Officer's final order shall become final ten (10) days after issuance. The final investigative report and final order may be amended if additional evidence is discovered within ten (10) days, and if amended, shall become final ten (10) days thereafter.

(19)

In all complaints filed pursuant to this article the Director of DBD's determination, and the Hearing Officer's final order, shall be served upon the complainant and the respondent.

(20)

If the Director of DBD determines that no reasonable cause exists to believe that a violation of this article has occurred or is about to occur, the Director of DBD shall promptly dismiss the complaint. The Director of DBD shall publicly disclose each such dismissal.

(21)

It is the policy of the Director of DBD and the Hearing Officer to encourage conciliation or settlement of charges. If possible, a written settlement agreement resolving the dispute between the aggrieved party and the respondent shall be executed prior to determination and any time until final hearing by the Hearing Officer; the Director of DBD will work with the parties in an attempt to conciliate the charge.

(22)

A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant and shall be subject to approval by the Director of DBD and the Hearing Officer.

(23)

Whenever the Director of DBD has reasonable cause to believe that a party has breached a conciliation agreement, the Director of DBD or the Hearing Officer shall refer the matter to the county attorney with a recommendation that a civil action be filed in a court of competent jurisdiction for enforcement of such agreement.

(24)

Nothing said or done in the course of attempting conciliation under this article may be used as evidence in any subsequent proceeding under this article or otherwise without the written consent of the parties to the underlying charge of unlawful conduct.

(25)

No hearing may be had where the Director of DBD finds a lack of jurisdiction or cause. However, following receipt of a right to sue letter, the complainant may file a private action with a court of proper jurisdiction.

(26)

If after the Hearing Officer issues a determination finding discrimination, the respondent fails to comply with the Hearing Officer's order and if efforts at conciliation have failed and the respondent has not timely requested a hearing before the Hearing Officer, then the Hearing Officer or the Director of DBD or the complainant may file a civil action in the appropriate court of Miami-Dade County, Florida, seeking enforcement of the order.

(27)

In any proceeding under this article, the burden of proof rests upon the complainant.

(28)

Copies of current rules of procedure shall be available at the office of the Director of DBD.

(29)

The Director of DBD, subject to approval by the county commission, and upon written agreement with federal, state or local agencies may accept written, sworn and signed complaints of violation of this article deferred to the Director of DBD by such agency for investigation or resolution; however, the Director of DBD may waive such deferment.

(Ord. No. 97-67, § 1, 6-3-97)