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                         CHAPTER 43: CONSUMER AFFAIRS DEPARTMENT*

*State law reference—Consumer Protection Division, IC 4-6-9-1; Indiana Deceptive
Consumer Sales Act, IC 24-5-0.5-1 et seq. Indiana Business Opportunity Transactions Act, IC
24-5-8-1 et seq.; powers specifically withheld, IC 36-1-3-8(a).

                                      GENERAL PROVISIONS

§ 43.001 ESTABLISHMENT-COMPOSITION.

There is hereby created and established an executive department of the municipal government
of the city of Gary which shall be known as the department of consumer affairs. The said
department shall embrace a director of consumer affairs and such deputies, assistants and
employees as the city council may provide by the annual appropriation ordinance.
(Ord. No. 6933, § 1(43.001), 9-16-1997)


§ 43.002 DIRECTOR-APPOINTMENT AND AUTHORITY.

There is hereby created the office of director of consumer affairs. The director shall be the
head of the department of consumer affairs, and shall have supervision over the said
department. The director shall be appointed by the mayor, by and with the advice and consent
of the city council.
(Ord. No. 6933, § 1(43.002), 9-16-1997)


§ 43.003 EMPLOYEES.

All employees of the department of consumer affairs shall be under the direction and
supervision of the director and shall perform such duties as may be required of them by the
director by the provisions of this code.
(Ord. No. 6933, § 1(43.003), 9-16-1997)


§ 43.004 DIRECTOR-POWERS AND DUTIES DESIGNATED.

    The duties and powers of the director of consumer affairs shall be as follows:

    1. To investigate complaints to ascertain whether any person has engaged in, is engaging



1
  Legal analysis: 1989 Code, CHAPTER 43 (as added by Ord. No. 6933). CONSUMER AFFAIRS
DEPARTMENT. Deleted as obsolete or preempted by statute. This chapter revolves around the
state Consumer Fraud and Deceptive Business Practices Act (which is now the Indiana Business
Opportunity Transactions Act and the Deceptive Consumer Sales Act--see IC 24-5-0.5-1 et seq., IC
24-5-8-1 et seq). Under IC 36-1-3-8 (a), the city cannot regulate conduct that is regulated by a
state agency, except as expressly granted by statute or prescribe a penalty for conduct
constituting a crime or infraction under statute or prescribe imprisonment for a ordinance
violation. The state acts are enforced by the Attorney General pursuant to IC 4-6-9-1 et seq. It is
unclear if the city intended to adopt federal standards but they are not needed given state
authority. In addition, the city’s webpage does not indicate that this department exits. If retained,
please review the penalties in Code § 43.008.
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         in or is about to engage in, any illegal, fraudulent or other deceptive practices in
         connection with the sale for cash or on credit or advertisement of any merchandise to
         any consumer, any practices which violates any law governing or regulating such sales
         and advertisements, and to report forthwith to the corporation counsel, the state's
         attorney general, and such other governmental agency as may have jurisdiction or an
         interest in the subject matter, the names and places of businesses of all persons
         suspected of having engaged in fraud, false pretense, misrepresentation and other
         deceptive practices as described herein: 15 USCA §§ 43, 46, 49; also see 16 CFR §
         2.1.

    2.   To do research, conduct educational programs, and disseminate information to the
         public regarding consumer affairs and energy conservation;

    3. To assist in relevant investigation, execution and enforcement of all laws, ordinances,
       rules, and regulations contained in the Gary Municipal Code.

    4. To advise, consult and cooperate with other agencies of the county, state, and federal
       governments in furtherance of the duties prescribed herein;

    5. To prepare and maintain all records as required by ordinance or as may be necessary
       for the efficient and orderly conduct of the business of this department;

    6. To investigate and make recommendation from time to time, to the mayor in respect to
        additions or revisions of the municipal code as may be necessary for the enforcement
        and regulations of the duties and powers described herein;

    7. To investigate and determine, or cause to be investigated and determined, whether all
       persons required by this code to secure license, permits and franchises have complied
       and such provisions, and in cases of evasion of payment, or failure to obtain the
       necessary license, permit or franchise, the director shall issue the appropriate notice
       of violation and shall request the corporation counsel to institute an appropriate legal
       proceeding to enforce such provisions and collections. See: 15 USCA § 45(B); 16 CFR
       § 3.1.

    8.     To establish a compliance procedure to determine whether violations have been
          corrected. If such violation or violations have not been corrected within 30 days from
          date of first inspection showing such violation or violations to have existed, a request
          for prosecution and shall be forwarded to the corporation counsel; provided, however,
          that if within 30 days, the person(s) subject to prosecution shall have presented an
          executed contract for the completion of the work necessary to correct such violation or
          violations and shall have obtained all permits required by this code, prosecution may
          be withheld for a period not to exceed 45 days. 16 CFR § 3.61
(Ord. No. 6933, § 1(43.004), 9-16-1997)

§ 43.005 INTERFERING WITH OR OBSTRUCTING OFFICIAL DUTIES UNLAWFUL.

    No persons shall in any way or manner obstruct the director of consumer affairs, his
deputies, assistants and employees in the performance of his duties or refuse to permit the
examination of any document relating to the sale or advertisement of any commodity
whatsoever in order that the said director of consumer affairs, his deputies, assistants and
employees, may ascertain the form and substance of any document or advertisement or any
commodity whatsoever which may be sold or offered for sale.
(Ord. No. 6933, § 1(43.005), 9-16-1997)
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§ 43.006 PROHIBITED ACTS-ENFORCEMENT.

   (a) No person shall engage in any act of consumer fraud, unfair method of competition or
       deceptive practice, while conducting any trade or business in the city. Any conduct
       constituting an unlawful practice under the Consumer Fraud and Deceptive Business
       Practices Act, Deceptive Consumer Sales et seq., as now or hereafter amended, shall
       be a violation of this section. In construing this section, consideration shall be given to
       court interpretations relating to the Consumer Fraud and Deceptive Business Practices
       Act, Deceptive Consumer Sales 24-5-0.5-1 et seq. In construing this section,
       consideration shall also be given to the interpretations of the Federal Trade
       Commission, and the federal courts relating to Section 5(a) of the Federal Trade
       Commission Act, 15 USCA § 45. Nothing in this section shall be construed as
       permitting the regulation of any business to the extent that such regulation is not
       permitted under the statutory of home rule powers of the city.

   (b) The director of consumer affairs shall be charged with the enforcement of this section
       and shall construe this section in compliance with sub-section (a).

   (c) Compliance with applicable rules and regulations promulgated pursuant to the
       Consumer Fraud and Deceptive Business Practices Act and with court interpretations
       relating to such Act shall be an absolute defense to a finding of a violation of this
       section. Compliance with applicable Federal Trade Commission rules, regulations and
       guidelines and with interpretations by the Federal Trade Commission and the federal
       courts relating to Section 5(a) of the Federal Trade Commission Act, 15 USCA Section
       45, shall be an absolute defense to a finding of a violation of this section.

   (d) When it appears to the director after receiving a written complaint or otherwise that a
       person has engaged in, is engaging in or is about to engage in a practice that is in
       violation of this section, the director may, after serving a 30-day notice:

       (1) Require that person to file on such forms as the director may prescribe a
           statement or report in writing as to all relevant and material information;

       (2) Examine any person in connection with relevant and material issues concerning
           the conduct of any trade or business;

       (3) Examine any merchandise or sample thereof, any record, book, document,
           account of paper relevant and material to the inquiry;

       (4) Retain copies of any record, book, document, account, paper or sample of
           merchandise that is produced in accordance with this section and retain it in his or
           her possession until the completion of all proceedings to connection with which it
           is produced and;

       (5) Conduct hearing under oath on issues that are relevant and material to the
           inquiry. Such hearings shall be recorded on audio tape. A copy of the tape shall be
           available to all parties upon request in writing within 40 days of the request. Any
           person requesting such a tape shall provide a blank tape at the time the written
           request is made. All hearing officers shall be attorneys licensed to practice law in
           Indiana or, five administrative years in Consumer Law. 16 CFR §§ 3.31, 3.40.

   (e) If, after completing an investigation pursuant to this section, the director determines
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        that a person has engaged in, is engaging in, or is about to engage in a practice
        prohibited by this section, the director may;

        (1) Order the person to discontinue the prohibited practice;

        (2) Order the person to pay restitution to persons aggrieved by the practice;

        (3) Request that the mayor take action under Section 30.05 of this code to revoke or
            suspend a license of the person; or

        (4) <com> in circuit court for injunctive relief or such other equitable relief that the
            director considers appropriate.

    (f) The director may by rule establish a system by which the director may impose
        administrative fines on persons who violate this section. Each day that a violation
        occurs shall be considered a separate and distinct offense. The rules establishing the
        system shall:

        (1) Provide for the imposition of fines only after the person accused of the violations
            has been given notice and an opportunity to be heard;

        (2) Provide for the appointment of hearing officers to hear the testimony of witnesses
            under oath, evaluate evidence, and make recommendations to the director. Such
            hearing shall be recorded on audio tape A copy of the tape shall be available to all
            parties upon request in writing within 14 days of the request. Any person
            requesting such a tape shall provide a blank tape at the same time the written
            request is made. All hearing officers shall be attorneys licensed to practice law in
            Indiana or five administrative years in Consumer Law.

        (3) Prescribe minimum and maximum fine amounts for specific violations; provided
            that the maximum fine for a single violation shall not exceed $500.00.

            The notice given under this subsection shall be made by first class mail, and shall
            include copy of a complaint which alleges specific facts showing the violation of
            which the person is accused and the time during which the alleged violation
            occurred.

            The director may take action pursuant to paragraphs (3) and (4) of subsection (e)
            against any person who fails to pay a fine imposed under this subsection within a
            reasonable time as specified by the director for such payment. Such action shall
            be stayed pending the appeal by any person of a fine imposed under this
            subsection.

    (g) The findings of a violation of this section, any order issued by the director, and the
        imposition of any fine under subsection (f), may be appealed to the mayor's license
        commission by the person against whom it is imposed and shall be subject to a de
        novo hearing wherein additional evidence may be adducted. Further appeal may be
        taken to the circuit court as provide by law. All orders and the imposition of any fine
        under this subsection shall be stayed pending appeal.

     (h) A violation of this section does not preempt the city from prosecution under any other
          ordinance that the director is authorized to enforce.
(Ord. No. 6933, § 1(43.006), 9-16-1997)
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§ 43.007 FAILURE TO SECURE REQUIRED LICENSE PERMIT OR FRANCHISE.

     If any person conducts any trade or business in the city of Gary without securing any
license, permit or franchise required by the city for such activity, the director of consumer
affairs shall have the authority to order the person to discontinue activity as conducted after
serving a 30-day written notice on the statutory agent or on another person otherwise
designated to receive legal documents. Nothing in this subsection shall prevent the director
from serving a notice of less than 30 days if a shorter notice period is authorized by an
ordinance specifically regulating an activity.
(Ord. No. 6933, § 1(43.007), 9-16-1997)
§ 43.008 VIOLATION-PENALTY.

   Any person who:

    (1) unless an appeal is pending, fails to obey an order issued by the director of consumer
        affairs pursuant to this chapter;

    (2) unless an appeal is pending fails to pay a fine imposed under Section 43.006 within a
        reasonable time specified by the director;

    (3) makes a deliberately false or deliberately misleading information to the director or

    (4) deliberately interferes with an investigation conducted by the director pursuant to this
        chapter, shall be subject to a fine of not less than $100.00 nor more than $1,000.00
        or imprisonment for a period not to exceed six months or both. Such violations shall
        be punishable as a misdemeanor pursuant to Section 10.99 of the Gary Municipal
        Code and Indiana State Statute 35-50-3-3. Any person who otherwise violates Section
        43.006 shall be subject to a fine of not less than $50.00 nor more than $500.00. All
        sanctions imposed pursuant to this section shall be imposed only after a judicial
        hearing and only pursuant to an order of the circuit court.

                               INCORPORATE BY REFERENCE

     15 USCA §§ 43, 45, 46, 49 and 57;
     FTC Rules of Practice 16 CFR §§ 2, 3 et seq.; and, IC 24-5-0.5-1 et seq (Deceptive
     Consumer Sales)
(Ord. No. 6933, § 1(43.008), 9-16-1997)

								
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