Section 18.03 - Enforcement Procedures(1)Notification of Violation. The Fund Administrator shall notify the director if a registrant fails to repay the fund for any payment made from the fund to an owner because of the conduct of said registrant. In addition, the director, attorney general, district attorney, or local consumer groups as defined in 201 CMR 18.01(2), shall advise the director of orders resulting from arbitration or court action, or other complaint activity against individual registrants or contractors required to be registered, accompanied by a recommendation for enforcement action against a registrant or contractor required to be registered. Complaint activity shall include, but not necessarily be limited to: (a) acts prohibited under 201 CMR 18.04(5)(c) or M.G.L. c. 142A;(b) a complaint or complaints of violations causing substantial harm to an owner or owners. Nothing in 201 CMR 18.03(1) shall preclude the director from initiating enforcement action on his or her own initiative.(2)Consideration of Factors. The director, upon receipt of a notification under 201 CMR 18.03(1) shall consider the pertinent factors in the particular situation, and decide what enforcement action in accordance with 201 CMR 18.04, if any, shall be taken against the registrant or contractor required to be registered considering, among any other pertinent factors, the recommendations of the director, attorney general, district attorney, the local building inspector or the local consumer group(s), the severity of the violation(s), the frequency of repetitive violations, the harm to the complainant or the general public, and the impact upon the registrant or contractor required to be registered.(3)Letter of Reprimand. The director, on his or her own initiative, may send a letter of reprimand to the registrant containing the facts of the situation, which may include that the incident has been noted on the registrant's official records, and the possibility of more severe disciplinary action in the event of repetitive violations.(4)Suspension, Revocation, Administrative Penalty. The director may suspend or revoke a registrant's certificate of registration, or assess an administrative penalty against a registrant or contractor required to be registered, subject to the hearing provisions in 201 CMR 18.03(5).(5)Hearing Procedure.(a)Notice of Hearing. The director shall give at least 14 days notice of a scheduled hearing to the registrant or contractor required to be registered, and to all parties to the hearing, i.e., the director, the attorney general, the district attorney, or the local consumer group from whom the recommendation for enforcement action was received. Notice to the registrant or contractor required to be registered will be deemed sufficient if it is mailed to the most recent address of record in the director's file.(b) The notice of hearing shall contain, at a minimum:1. The nature of the violation;2. A statement of the enforcement action recommendation;3. The date, time and place for the hearing;4. Notice that the registrant or contractor required to be registered may be represented by an attorney;5. Advisory that the complete investigation file is available for review at the office of the director during regular business hours;6. Notice that the registrant or contractor required to be registered may present written and oral testimony and evidence to mitigate any planned enforcement action.(c) The hearing will be conducted by the director or a hearing officer appointed by the director.(d)Rescheduling of Hearing. The director, at his or her discretion, may delay and reschedule the date for such hearing upon written request of the registrant or contractor required to be registered, the director, the attorney general, a district attorney, or the involved local consumer group, provided the request is received not less than ten days prior to such hearing.(e)Unmanageable Hearings. After a warning, the hearing officer may terminate any hearing that becomes unmanageable due to the behavior of any participants and enter an order by default against the party whose behavior made the hearing unmanageable.(f)Decision. Following the close of the hearing, the director shall issue a written decision on the violation within 30 business days. A copy of the decision shall be sent to the registrant or contractor required to be registered, the director, the attorney general, the involved district attorney and local consumer group.(g)Appeal. Any party to the hearing who is aggrieved by the decision may appeal under the applicable provisions of the Massachusetts Administrative Procedures Act, M.G.L. c. 30A.(6)Registered and Unregistered Home Improvement Contractor Complaint Form. The director shall make a complaint form available to homeowners and other prospective complainants.(7)Limitations to Complaints. The submission of a complaint form will not result in an enforcement hearing if:(a) the complaint form was submitted more than three years after the contract for home improvements was signed by the homeowner or, absent a signed contract, the earlier of:1. the date of the first payment to the contractor; or2. the date work commenced on the project; or(b) the complaint form fails to state or allege that a violation of M.G.L. c. 142A or 201 CMR 18.00 was committed; or(c) OCABR dismisses the complaint for any reason.(8)Receipt of Timely Complaints. For the purposes of determining whether a complaint form was submitted timely, complaint forms filed by U.S. mail shall be deemed filed on the date contained in the U.S. postal cancellation stamp or U.S. postmark, and not the date contained on a postal meter stamp. Complaint forms filed by facsimile or other electronic medium shall be deemed filed at OCABR on the date received by OCABR during usual business hours but not later than 5:00 P.M. Complaint forms filed by all other means shall be considered hand-delivered and shall be deemed filed on the date received by OCABR during usual business hours. Complaint forms received after usual business hours shall be deemed filed on the following business day.(9)Notification of Contractor. After OCABR receives a timely complaint form complete with at least one allegation of a violation of M.G.L. c. 142A or 201 CMR 18.00, OCABR will mail a copy of that complaint form to the registrant or contractor required to be registered at the most recent address of record in the director's file, or in the case of an unregistered contractor, the address provided by the complainant. The mailing of the copy of the complaint form will constitute sufficient notice of the issues involved in the hearing, as required by 801 CMR 1.02(10)(c). The notice of the issues involved in the hearing shall be deemed sufficient if the complaint form is mailed to the most recent address of record in the director's file.(10)Purpose of the Complaint Process and Enforcement Hearing. The purpose of the complaint process and hearing is to adjudicate whether the contractor committed violations of M.G.L. c. 142A and 201 CMR 18.00 and, if so, whether any administrative penalties should be issued against the contractor or his certificate of registration. The final agency decision arising from the submission of a complaint form will not result in any award, monetary or otherwise, to the complainant, even if the allegations in the complaint are proven with substantial evidence.(11)Status of the Complainant as a Non-party. For the purposes of the complaint process and the enforcement hearing, the complainant shall not be considered a party to the hearing. The complainant shall be deemed a witness only and shall not have the right of direct and cross-examination of witnesses, the right to object to evidence, or the right to appeal any final agency decision.(12)Injunctions, Restitution. The director, on his or her own initiative, may institute court action in accordance with 201 CMR 18.04(5), to obtain a permanent or temporary injunction or an order requiring restitution or completion of a home improvement contractor's contract with an owner.(13)Fines and Criminal Penalties. The attorney general or a district attorney may initiate court action on his or her own initiative in accordance with 201 CMR 18.04(4).Amended by Mass Register Issue 1314, eff. 6/3/2016.