Or. Admin. Code § 141-126-0230

Current through Register Vol. 64, No. 1, January 1, 2025

Section 141-126-0230 - Enforcement Actions; Civil Penalties and Other Remedies

(1) Upon the director's own initiative, or in response to a complaint, the director may investigate a suspected violation of a communication site facility lease or the alleged unauthorized use of state-owned land to determine if use of the state-owned land conforms with the terms and conditions of a communication site facility lease or other department issued authorization or to determine if the use is not authorized.

(2) In conducting the investigation relative to suspected or alleged violations of a communication site facility lease issued by the director, the director or the director's agent may enter into buildings or structures owned by the lessee in order to determine if a violation has occurred. The department will provide the lessee advance notice prior to entering buildings or structures owned by the lessee during an investigation.

(3) Upon a determination that a violation of the communication site facility lease has occurred or that an unauthorized use of state-owned land has occurred, the director may exercise any available remedy or combination of remedies to bring the violation into compliance with the lease, including, but not limited to, the remedies set forth in the lease, imposition of civil penalties consistent with OAR 141-126-0230(4), or any other available remedies. The department will provide the lessee 60 calendar days in which to correct any violation prior to enforcement action being taken by the department. Failure of the lessee to comply with any obligation of the lease within 60 calendar days after notice by the department specifying the nature of the deficiency, or in the event of an emergency, within the time specified by the department to resolve the emergency, is considered a default of the lease and a trespass.

(4) The unauthorized use of state-owned land or the violation of an authorization granted under these rules constitutes a trespass. In addition to any other penalty or sanction provided by law, the director may assess a civil penalty per ORS 183.745 and 273.992 of not more than $1,000 per day of violation for the following:

(a) Violations of any provision of OAR 141-126 or ORS Chapter 273 or 274; or

(b) Violations of any term or condition of a written authorization granted by the department under ORS Chapter 273 or 274.

(5) The director will give written notice of a civil penalty incurred under OAR 141-126-0230(4) by registered or certified mail to the person incurring the penalty. The notice will include, but not be limited to the following:

(a) The particular section of the statute, rule, or written authorization involved;

(b) A short and clear statement of the matter asserted or charged;

(c) A statement of the person's right to request a hearing within 20 calendar days of the notice;

(d) The time allowed to correct a violation; and

(e) A statement of the amount of civil penalty which may be assessed and terms and conditions of payment if the violation is not corrected within the time period stated.

(6) The person incurring the penalty may request a hearing within 20 calendar days of the date of service of the notice provided in OAR 141-126-0230(5). Such request must be in writing. If no written request for a hearing is made within the time allowed, or if the person requesting a hearing fails to appear, the director may make a final order imposing the penalty.

(7) In imposing a penalty under OAR 141-126-0230 of these rules, the director will consider the following factors as specified in ORS 273.994:

(a) The history of the person incurring a penalty in taking all feasible steps or procedures necessary or appropriate to correct any violation;

(b) Any prior violations of statutes, rules, orders, and authorizations pertaining to the use of state-owned land;

(c) The impact of the violation on school lands or statutory lands.

(d) Any other factors determined by the director to be relevant and consistent with the policy of these rules.

(8) Pursuant to ORS 183.745(2), a civil penalty imposed under OAR 141-126-0230 will become due and payable 10 calendar days after the order imposing the civil penalty becomes final by operation of law or on appeal.

(9) If a civil penalty is not paid as required by OAR 141-126-0230, interest will accrue at the maximum rate allowed by law from the date first due.

Or. Admin. Code § 141-126-0230

DSL 7-2024, adopt filed 12/10/2024, effective 12/13/2024

Statutory/Other Authority: ORS 273.045, ORS 273.051(2)(b) & ORS 273.245

Statutes/Other Implemented: OR Const. Art. VIII, Sec. 2 & 5