Rule 120-3-28-.06 - Notice of Hearing and Penalties(1) Issuance of Citation or Notice of Administrative Proceeding: (a) If, upon inspection by an inspector or deputy inspector, 1. A carnival ride is deemed to be in an unsafe condition,2. The owner, operator, user, contractor, or installer has not complied with the Carnival Ride Safety Law or these rules, or3. When a written warning has been issued and the violations continues, then the deputy inspector shall issue the violator a Citation stating the date, time and place of the violation, the specific violation, the recommended penalty, and shall offer the respondent the opportunity for a hearing as set forth in this section.(b) If, upon receiving information from any source, the Chief Inspector determines that there is a reasonable belief that: 1. A carnival ride may be in an unsafe condition,2. The owner, operator, user, contractor, or installer has not complied with the Carnival Ride Laws or these rules, or3. When a warning has been issued, the violation is a continuing violation, the Chief Inspector or the Director, Safety Engineering, on behalf of the Office, may issue Notice of Administrative Proceeding stating the date, time and place of the violation, the specific violation, the recommended penalty, and shall offer the respondent the opportunity for a hearing as set forth in this section.(c) The Director, Safety Engineering, upon review of a citation issued under subsection (a) above, may, in his sole discretion, dismiss the Citation and substitute therefore a Notice of Administrative Proceeding pursuant to subsection (b) above on the same, similar, or different violations, as required by the evidence.(d) The Commissioner, upon review of a Citation or Notice of Administrative Proceeding, in his sole discretion, may refer the matter to the appropriate prosecuting official for criminal or injunctive relief as permitted under law. In such event, the Commissioner may, in his sole discretion, elect to dismiss, suspend, or continue with the civil penalty proceeding.(2) Hearing Procedure: (a) If a request for a hearing is not received from the respondent within the allotted time, the Director, Safety Engineering, on behalf of the Commissioner, may without further process impose a civil penalty not greater than the total of civil penalties set forth on the Citation or in the Notice of Administrative Proceeding. An administrative order under the authority of the Commissioner may be issued to collect the civil penalty assessed. If the civil penalty is not paid, the Commissioner may authorize the Director to file appropriate legal action in the name of the Commissioner through the Attorney General to collect the civil penalty.(b) Upon receipt of a request for a hearing pursuant to any Citation or Notice of Administrative Proceeding, the Director, Safety Engineering, shall determine, in his sole discretion, whether the hearing shall be held before the Commissioner of Insurance or referred to the Office of State Administrative Hearings. If the hearing is to be before the Commissioner, the Director shall set a date and time for the hearing and shall cause the case file to be referred to the Attorney General for legal representation of the Office Department. If the Director determines that a hearing before the Commissioner is not warranted, the matter shall be referred to the Office of State Administrative Hearings pursuant to O.C.G.A. 50-13-41(a)(1). The casefile for an OSAH proceeding may be referred to staff counsel within the Department or to the Attorney General for representation of the Department. The Office of State Administrative Hearings will set the date, time and place of hearing as prescribed by OSAH Rules.(c) All hearings, whether before the Commissioner or before the Office of State Administrative Hearings, shall be subject to the powers and procedures set forth in the Administrative Procedure Act, including but not limited to O.C.G.A. 50-13-13 and 50-13-15.(d) The decision of an administrative law judge made after a hearing before the Office of State Administrative Hearings shall be the initial agency decision as set forth in O.C.G.A. 50-13-41(d) and shall be subject to review by the Commissioner as set forth in O.C.G.A. 50-13-41(e). A hearing before the Commissioner shall be the final agency decision in the matter and shall be subject to judicial review as set forth in O.C.G.A. 50-13-19.(3) Guidelines for imposition of civil penalties:(a) Any person, firm partnership, corporation or other business entity, which violates this part, shall be subject to the imposition of civil penalties. Each day on which a violation occurs shall constitute a separate offense. Repeat offenders, including those who refuse to adhere to orders of inspectors, exceed the limitations of operating permits, or refuse to adhere to the requirements of these rules and regulations, may be referred appropriate prosecuting official for criminal (misdemeanor) or injunctive relief as permitted under law. Serious violations, including those causing serious bodily injury or death, or which exhibit gross negligence or serious disregard for public safety, may also be referred appropriate prosecuting official for criminal (misdemeanor) or injunctive relief as permitted under law.(b) Notwithstanding the recommended minimum penalties set forth below, a serious violation, including those causing serious bodily injury or death, or which exhibit gross negligence or serious disregard for public safety, may receive the maximum penalty of $5,000.00 for each violation including a first offense. The imposition of a penalty for a violation of this part shall not excuse the violation or permit it to continue.(c) The deputy inspector issuing a Citation shall, at the time of issuance, specify a recommended civil penalty amount for each specific violation in accordance with these Rules and Regulations. The Director, Safety Engineering, is charged with the responsibility to ensure that recommended penalties for violations are graduated with the more serious violations receiving the heavier penalty and with assuring uniformity of recommended penalties such that offenders in similar circumstances with similar violations receive similar penalty recommendations. In this regard, the Director may dismiss a Citation and issue a Notice of Administrative Proceeding solely for the purpose of making an appropriate penalty recommendation. (d) The recommended civil penalty set forth in the Citation or Notice of Administrative Proceeding shall be given great deference by the Hearing Officer. The minimum recommended penalties set forth below are normally for first offenses with only one violation being cited. The Hearing Officer shall, after hearing the case, consider factors in mitigation of the violations as well as those in aggravation. The Hearing Officer shall impose a penalty less than the recommended minimum penalty only upon finding unusually significant mitigating factors, and shall set forth those factors in the order. The Hearing Officer may impose a penalty substantially greater than the department's recommended penalty upon finding significant aggravating factors associated with the violation, and shall set forth those factors in the order. The Hearing Officer shall consider the provisions of these Rules and Regulations guiding the assessment of penalties. In particular, the Hearing Officer, shall, in cases involving continued operation of equipment without valid operating certificates; continued operation of equipment after failing to notify the department of an accident involving structural damage, bodily injury, or death; or continued operation after an unsafe condition is detected or after the equipment is taken out of service by an inspector or deputy inspector, consider the imposition of separate penalties for each day of violation. The Hearing Officer shall not assess a penalty exceeding $5,000.00 for each violation or each day of a continuing violation.(e) The Hearing Officer may, in addition to a civil penalty, recommend in the order that the Commissioner suspend for a period of time or indefinitely, operating certificates, permits to install, or certificates for contractors.(4) Minimum recommended penalties: (a) Specific violations: 1. Operating equipment without a certificate of inspection or permit. (Authority: O.C.G.A. 25-15-88 and 25-15-89) First offense ........................$250.00
Second offense .....................$500.00
2. Operating equipment in an unsafe condition. (Authority: O.C.G.A. 25-15-96) First offense ........................$500.00
Second offense .....................$1000.00
3. Failure to permit free access for the purpose of inspecting or investigating equipment. (Authority: O.C.G.A. 25-15-97)
First offense ........................$500.00
Second offense .....................$1,000.00
4. Failure to notify the Chief Inspector of any accidents involving serious personal injury. (Authority: O.C.G.A. 25-15-91 and 120-3-28-.14) First offense ........................$500.00
Second offense .....................$1000.00
5. Failing to notify the Chief Inspector of an accident which involves death. (Authority: O.C.G.A. 25-15-91) First offense ........................$2500.00
Second offense .....................$4500.00
6. Placing ride back in service which has been "Re d-Tagged"or placed out of service by a deputy inspector, without first having the unit inspected. (Authority: O.C.G.A. 25-15-96(a)) First offense ........................$1000.00
Second offense .....................$2500.00
7. Placing ride back in service which has been involved in an accident prior to first having the unit inspected or otherwise cleared. (Authority: O.C.G.A. 25-15-91) First offense ........................$1000.00
Second offense .....................$2500.00
(b) General violations: 1. Violating adopted Code, Standards, Rules, Regulations or Order. (Authority: O.C.G.A. 25-15-96(c)(2)) First offense ........................$250.00
Second offense .....................$500.00
2. Failure to post required signage such as, but not limited to, age, weight or height restrictions. Each day constitutes a separate violation. (Authority: O.C.G.A. 25-15-96(c)(2)) First offense ........................$250.00
Second offense .....................$500.00
3. Failure to file a required report. Each report constitutes a separate violation. (Authority: O.C.G.A. 25-15-96(c)(2)) First offense ........................$250.00
Second offense .....................$500.00
4. Any third repeated offense may subject the violator to the maximum civil penalty permitted under the Act ($5,000.00).Ga. Comp. R. & Regs. R. 120-3-28-.06
O.C.G.A. §§ 25-15-83, 25-15-92, 25-15-96(c)(2).
Original Rule entitled "Imposition of Civil Penalties. Amended"adopted. F. Jan. 10, 2014; eff. Jan. 30, 2014.Amended: New title "Notice of Hearing and Penalties."F. Dec. 28, 2017; eff. Jan. 1, 2018, as specified by the Agency.