4 Colo. Code Regs. § 723-7-7010

Current through Register Vol. 48, No. 1, January 10, 2025

Section 4 CCR 723-7-7010 - Civil Penalties

(a) The Commission may impose a civil penalty against a railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track for failure to comply with the Colorado Constitution, a provision of articles 1 to 7 of title 40, C.R.S., a Commission order or rule, except for an order requiring payment of money, as authorized in §§ 40-4-106(1)(b) and 40-7-105, C.R.S. Before issuing a civil penalty assessment notice, the entity alleged to have failed to comply with the Colorado Constitution, a provision of articles 1 to 7 of title 40, C.R.S., or a Commission order or rule, must be provided written notice of the alleged violation(s), and an opportunity to cure the alleged violation(s) within a minimum of 14 calendar days. The Commission, in its discretion, may provide additional time to cure the alleged violation(s).

(b) Civil penalty assessment notice.

(I) The Director of the Commission or his or her designee has the authority to issue a civil penalty assessment notice for an alleged failure to comply with or violation(s) of the Colorado Constitution, a provision of articles 1 to 7 of title 40, C.R.S., or a Commission order or rule.

(II) The civil penalty assessment notice must be served in person, by certified mail or by personal service and shall contain:

(A) the name and address of the entity cited for the violation;

(B) a citation to the specific constitutional provision, rule, statute or Commission order alleged to have been violated;

(C) a brief description of each alleged violation, and the date and approximate location (as applicable) of the alleged violation;

(D) the maximum penalty amount for each alleged violation and the maximum amount of the penalty surcharge imposed pursuant to § 24-34-108(2), C.R.S., if any. The penalty surcharge shall be equal to the percentage set by the Department of Regulatory Agencies on an annual basis;

(E) a statement allowing for a reduced penalty of 50 percent of the maximum penalty amount and surcharge if paid within ten calendar days of the railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track's receipt of the civil penalty assessment notice;

(F) a place for the railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track to execute a signed acknowledgment of receipt of the civil penalty assessment notice;

(G) a place for the railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track to execute a signed acknowledgement of liability for the violation; and

(H) a statement that if the prescribed penalty is not paid within ten calendar days of the railroad, railroad corporation, rail fixed guideway, transit agency or owner of the track's receipt of the civil penalty assessment notice, that the civil penalty assessment notice becomes a notice of complaint to appear before the Commission.

(III) A civil penalty assessment notice may not be considered defective so as to provide cause for dismissal solely because of a defect in its content. Any defect in the content of a civil penalty assessment notice may be cured by a motion to amend the same filed with the Commission prior to a hearing on the merits. No such amendment may be permitted if the substantial rights of the cited entity are prejudiced.

(c) Adjudication.

(I) The railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track cited with alleged violation(s) may either admit liability for the violation(s) by executing the acknowledgement of liability and paying the penalty prescribed in the civil penalty assessment notice or contest the alleged violation(s) as set forth below. When the cited entity admits liability, it must pay the civil penalty specified for the violation(s) in person at the Commission's office or by depositing payment postage prepaid in the United States mail within ten days after the citation is issued.

(II) The railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track cited with alleged violation(s) may contest the violation(s) identified in the civil penalty assessment notice and request a hearing before the Commission. If the cited entity does not pay the prescribed penalty within ten calendar days after the civil penalty assessment notice is issued, the notice constitutes a complaint to appear before the Commission. The cited entity must contact the Commission on or before the time and date specified in the civil penalty assessment notice to set the complaint for a hearing on the merits. If the cited entity fails to contact the Commission as required, the Commission will set the complaint for a hearing. At the hearing, Commission trial staff shall have the burden of demonstrating the violation(s) by a preponderance of the evidence.

(d) Civil penalty assessment.

(I) The Commission shall assess a civil penalty only after a railroad, railroad corporation, rail fixed guideway, transit agency, or owner of the track either admits liability or is adjudicated to have committed the violation.

(II) In any written decision entered by the Commission assessing a final civil penalty, the Commission may impose a civil penalty of not more than $2,000.00 for each offense, pursuant to § 40-7-105(1), C.R.S. In determining the civil penalty amount, the Commission shall consider the factors set forth in paragraph 1302(b) of the Commission's Rules of Practice and Procedure, 4 Code of Colorado Regulations 723-1.

(III) In accordance with § 40-7-105(2), C.R.S., every violation is considered a separate and distinct offense, and, in the case of a continuing violation, each day's continuance thereof shall be deemed a separate and distinct offense.

(e) Nothing in these rules shall affect the Commission's ability to pursue other remedies in lieu of imposing a civil penalty.

4 CCR 723-7-7010

40 CR 14, July 25, 2017, effective 8/14/2017

41 CR 14, July 25, 2018, effective 8/14/2018

42 CR 07, April 10, 2019, effective 4/30/2019

45 CR 11, June 10, 2022, effective 6/30/2022

47 CR 07, April 10, 2024, effective 4/30/2024