Iowa Admin. Code r. 641-69.14

Current through Register Vol. 47, No. 6, September 18, 2024

Rule 641-69.14 - Enforcement

(1) The department may impose a civil penalty pursuant to Iowa Code section 135.105C and this rule and may refer the case to the office of the county attorney for possible criminal penalties pursuant to Iowa Code section 135.38 when it finds that a person has committed any of the following acts:

a. Failed or refused to comply with any requirements of this chapter.

b. Failed or refused to establish, maintain, provide, copy, or permit access to records or reports as required by this chapter.

c. Failed or refused to permit entry or inspection as described in subrule 69.14(1).

d. Falsified reports and records required by this chapter.

e. Failed to comply with the terms of a department order or the terms of a settlement agreement or consent order.

f. Failed to respond within 20 days of receipt of communication sent by the department by registered or certified mail.

g. Engaged in any conduct that subverts or attempts to subvert a department investigation.

h. Failed to comply with a subpoena issued by the department or failed to cooperate with a department investigation.

i. Failed to pay costs assessed in any disciplinary action.

(2) Complaints and other requests for action under this rule. Complaints regarding a person who performs renovation, remodeling, or repainting for compensation in target housing or a child-occupied facility shall be submitted in writing to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075. The complainant shall provide the name of the person who performs renovation, remodeling, or repainting for compensation in target housing or a child-occupied facility and the specific details of the person's action(s) that did not comply with the rules.

(3) Civil penalties.

a. Before instituting any proceeding to impose a civil penalty under Iowa Code section 135.105C, the department shall serve a written notice of violation upon the person charged. The notice of violation shall specify the date or dates, facts, and the nature of the alleged act or omission with which the person is charged and shall identify specifically the particular provision or provisions of the law, rule, regulation, or cease and desist order involved in the alleged violation and must state the amount of each proposed penalty. The notice of violation shall also advise the person charged that the civil penalty may be paid in the amount specified therein, or the proposed imposition of the civil penalty may be protested in its entirety or in part, by a written answer, either denying the violation or showing extenuating circumstances. The notice of violation shall advise the person charged that upon failure to pay a civil penalty subsequently determined by the department, if any, unless compromised, remitted, or mitigated, the fee shall be collected by civil action pursuant to Iowa Code section 135.105C.

b. Within 20 days of the date of a notice of violation or other time specified in the notice, the person charged may either pay the penalty in the amount proposed or answer the notice of violation. The answer to the notice of violation shall state any facts, explanations, and arguments denying the charges of violation or demonstrating any extenuating circumstances, error in the notice of violation, or other reason why the penalty should not be imposed and may request remission or mitigation of the penalty.

c. If the person charged with a violation fails to answer within the time specified in paragraph 69.14(3)"b, " an order may be issued imposing the civil penalty in the amount set forth in the notice of violation described in paragraph 69.14(3)"a. "

d. If the person charged with a violation files an answer to the notice of violation, the department, upon consideration of the answer, will issue an order dismissing the proceeding or imposing, mitigating, or remitting the civil penalty. The person charged may, within 20 days of the date of the order or other time specified in the order, request a hearing.

e. If the person charged with a violation requests a hearing, the department will issue an order designating the time and place of hearing. The hearing shall be conducted according to the procedural rules of the department of inspections and appeals found in 481-Chapter 10, Iowa Administrative Code.

f. If a hearing is held, an order will be issued after the hearing by the presiding officer or the department dismissing the proceeding or imposing, mitigating, or remitting the civil penalty.

g. The department may compromise any civil penalty. If the civil penalty is not compromised or is not remitted by the presiding officer or the department or if the time for requesting a hearing described in paragraph 69.14(3)"d" has expired, the department may refer the matter to the attorney general for collection.

h. Except when payment is made after compromise or mitigation by the department of justice or as ordered by a court of the state, following reference of the matter to the attorney general for collection, payment of civil penalties imposed under Iowa Code section 135.105C shall be made by check, draft, or money order payable to the Iowa Department of Public Health.

(4) Appeals.

a. Notice of the civil penalty shall be sent to the affected person by certified mail, return receipt requested, or by personal service. The affected person shall have a right to appeal the civil penalty.

b. An appeal of a civil penalty shall be submitted by certified mail, return receipt requested, to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075, within 20 days of receipt of the department's notice. If such a request is made within the 20-day time period, the notice of civil penalty shall be deemed to be suspended. Prior to or at the hearing, the department may rescind the notice upon satisfaction that the reason for the civil penalty has been or will be removed. After the hearing, or upon default of the applicant or alleged violator, the administrative law judge shall affirm, modify or set aside the civil penalty. If no appeal is submitted within 20 days, the civil penalty shall become the department's final agency action.

c. Upon receipt of an appeal that meets contested case status, the appeal shall be transmitted to the department of inspections and appeals within 5 working days of receipt pursuant to the rules adopted by that agency regarding the transmission of contested cases. The information upon which the civil penalty is based shall be provided to the department of inspections and appeals.

d. The hearing shall be conducted according to the procedural rules of the department of inspections and appeals found in 481-Chapter 10, Iowa Administrative Code.

e. When the administrative law judge makes a proposed decision and order, it shall be served by restricted certified mail, return receipt requested, or delivered by personal service. The proposed decision and order then becomes the department's final agency action without further proceedings 10 days after it is received by the aggrieved party unless an appeal to the director is taken as provided in paragraph 69.14(4)"f"

f. Any appeal to the director for review of the proposed decision and order of the administrative law judge shall be filed in writing and mailed to the director by certified mail, return receipt requested, or delivered by personal service within 10 days after the receipt of the administrative law judge's proposed decision and order by the aggrieved party. A copy of the appeal shall also be mailed to the administrative law judge. Any request for appeal shall state the reason for appeal.

g. Upon receipt of an appeal request, the administrative law judge shall prepare the record of the hearing or submission to the director. The record shall include the following:

(1) All pleadings, motions, and rulings.

(2) All evidence received or considered and all other submissions by recording or transcript.

(3) A statement of all matters officially noticed.

(4) All questions and offers of proof, objection, and rulings thereon.

(5) All proposed findings and exceptions.

(6) The proposed findings and order of the administrative law judge.

h. The decision and order of the director becomes the department's final agency action upon receipt by the aggrieved party and shall be delivered by restricted certified mail, return receipt requested, or by personal service.

i. It is not necessary to file an application for a rehearing to exhaust administrative remedies when appealing to the director or the district court as provided in Iowa Code section 17A.19. The aggrieved

party to the final agency action of the department who has exhausted all administrative remedies may petition for judicial review of that action pursuant to Iowa Code chapter 17A.

j. Any petition for judicial review of a decision and order shall be filed in the district court within 20 days after the decision and order becomes final. A copy of the notice of appeal shall be sent by certified mail, return receipt requested, or by personal service to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075.

k. The party who appeals a final agency action to the district court shall pay the cost of the preparation of a transcript of the contested case hearing for the district court.

Iowa Admin. Code r. 641-69.14

ARC 8501B, IAB 2/10/10, effective 1/13/10