§ 4-4-35. Hearings.

(a)

Initiation of hearings; frequency. Upon its own motion or upon receipt of a completed application by the franchisee, the governing body shall convene a public hearing to consider the rates, fees and charges of a franchisee. A public hearing shall be convened not less frequently than once every three (3) years.

(b)

Presiding officer. The board chairman or his designee shall be the presiding officer of all hearings conducted by the governing body.

(c)

Parties. Parties to all hearings shall include the county, the franchisee, and any petitioners.

(d)

Notice of hearing. The presiding officer shall set the time and place for all hearings and shall issue notice thereof to all parties of record. No less than twenty (20) days' notice shall be given for the hearing on the merits of the application or petition unless otherwise agreed by the parties. No less than seven (7) days' notice shall be given for all other hearings. Notice of the hearing on the merits before the governing body shall be published once in a newspaper of general circulation in the county.

(e)

Intervention. Persons, other than the original parties to a pending proceeding, who have a substantial interest in the proceedings and who desire to become parties, may petition the presiding officer for leave to intervene. Petitions for leave to intervene must be filed at least five (5) days before the hearing on the merits and must include allegations sufficient to demonstrate that the intervenor is entitled to participate in the proceedings as a matter of legal right, or that the substantial interests of the intervenor are subject to determination or will be affected through the proceeding. Intervenors shall take the case as they find it.

(f)

Discovery. Parties may obtain discovery through the means and in the manner provided in the Florida Rules of Civil Procedure. The presiding officer may issue appropriate orders to effectuate the purpose of discovery and to prevent delay and may impose appropriate sanctions under the Florida Rules of Civil Procedure, except that such sanctions may not include contempt or the award of expenses. Sanctions may include dismissal.

(g)

Prehearing statement. The presiding officer may issue an order requiring each party to file a prehearing statement. Such order shall provide a date by which time such prehearing statement is due and shall further state that the failure of a party to file a prehearing statement shall be a waiver of any issues not raised by other parties or by the county, as well as the ability to present testimony in favor of his or her position. An order requiring a prehearing statement may address or rule upon any matter which may aid in the orderly disposition of the proceeding. In an order requiring a prehearing statement, the presiding officer may require each party:

(1)

To identify all known witnesses that may be called and indicate the subject matter of their testimony;

(2)

To identify all known exhibits, identify their contents, and indicate whether they may be identified on a composite basis;

(3)

To provide a statement of its basic position in the proceedings;

(4)

To provide a statement of each question of fact the party considers at issue;

(5)

To provide a statement of each question of law the party considers at issue;

(6)

To provide a statement of each policy question the party considers at issue;

(7)

To provide a statement of the party's position on each issue identified pursuant to paragraphs (4), (5) and (6);

(8)

To provide a statement of issues that have been stipulated to by the parties;

(9)

To provide a statement of all pending motions or other matters the party seeks action upon;

(10)

To provide a statement as to any requirement set forth in the prehearing order that cannot be complied with, and the reasons therefor;

(11)

To include such other matters in the prehearing statement as will aid the governing body in achieving an orderly disposition of the proceeding.

(h)

Prehearing conference. Upon seven (7) days' written notice, the presiding officer may conduct one (1) or more prehearing conferences for the purpose of hearing arguments on pending motions, clarifying and simplifying issues, discussing the possibility of settlement, exchanging names and addresses of witness, and resolving other procedural matters.

(i)

Prehearing order. The presiding officer may issue a prehearing order which separately sets forth the factual and legal issues in the case, as well as the positions of the parties, and addresses other matters as may aid in the conduct of the hearing such as setting a hearing schedule. The prehearing order shall control the conduct of the parties in the case to the extent the matter is addressed in the order.

(j)

Continuance. The presiding officer may grant a continuance of a hearing for good cause shown or upon stipulation of all parties.

(k)

Power and duties of the governing body. The governing body shall, with regard to the conduct of hearings pursuant hereto, have the authority to:

(1)

Administer oaths and affirmations;

(2)

Issue subpoenas requiring the attendance of witnesses or production of documents or things for the purpose of taking the testimony of such witnesses and inspection of documents during discovery and at a public hearing;

(3)

Take, or cause to be taken, depositions of witnesses whenever the ends of justice would be served thereby;

(4)

Regulate the conduct of hearings including the identification of burdens of proof;

(5)

Rule upon offers of proof and receive relevant and material evidence;

(6)

Dispose of procedural requests, objections and similar matters;

(7)

Enter such orders as are authorized by this article.

(l)

Subpoenas. Subpoenas may be issued by the clerk to the board upon written application of a party. The issuance of subpoenas shall be governed by the Florida Rules of Civil Procedure.

(m)

Recordation. Hearings shall be recorded on tape by the clerk to the board. Any party to a hearing may, at its own expense, provide a certified court reporter. If a court reporter records the proceedings, the transcript of that recordation shall become the official transcript.

(n)

Evidence.

(1)

Oral evidence shall be taken only on oath or affirmation.

(2)

Any relevant evidence shall be admitted if it is the sort of evidence which reasonable prudent persons are accustomed to rely upon in the conduct of their affairs. Hearsay evidence may be used to supplement or explain other evidence, but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions. Irrelevant and unduly repetitious evidence shall be excluded.

(3)

A presiding officer may require all parties to pre-file written testimony and shall provide reasonable notice to the parties of the date testimony shall be pre-filed.

(4)

Upon providing copies of written testimony to all parties of record, a witness may enter that testimony into the record as though read, at which time the witness shall become subject to cross-examination.

(5)

When appropriate, the general public may be given an opportunity to testify under oath, and be subject to cross-examination.

(o)

Due process protection. The governing body shall ensure the right of every party to:

(1)

Receive notice as required herein;

(2)

Present his case or defense by oral and documentary evidence;

(3)

Submit rebuttal evidence and conduct such cross-examination as may be required for a full and true disclosure of the facts;

(4)

Make offers of settlement or proposals of adjustments to financial data; and

(5)

Be accompanied, represented and advised by counsel, or to proceed by self-representation.

(p)

Burden of proof. The franchisee shall have the burden of proof to establish that its rates, fees and charges comply with the requirements of this article. Rates, fees and charges shall be established or adjusted using an operating ratio approach.

(q)

Post-hearing memorandum. If a hearing is conducted, all parties may submit proposed findings of fact, conclusions of law, recommended orders, and legal briefs on any issue within a time designated by the presiding officer.

(r)

Final order. Upon receipt of post-hearing memoranda, if any, the governing body shall enter its final order within forty-five (45) days of the final hearing before the governing body. The final order shall include a caption, time and place of the hearing, appearances entered at the hearing, statement of the issues, findings of fact, conclusions of law, and statement of final action. A final order shall be considered entered when signed by the board chairman and filed with the clerk to the board.

(s)

Motion for reconsideration. Any party to a hearing who is adversely affected by an order of the governing body may file a motion for reconsideration of that order, within fourteen (14) days of the entry of said order. Timely filing of a motion for reconsideration shall toll the time for filing an appeal from the governing body's final order.

(Ord. No. 2004-006, § 1, 2-10-04)