Or. Admin. R. 259-059-0400

Current through Register Vol. 63, No. 5, May 1, 2024

Section 259-059-0400 - [Effective 5/28/2024] Compliance

(1) The Department may cause administrative proceedings or court action to be initiated to enforce a private security entity's compliance with ORS 181A.840 to 181A.918 or OAR Chapter 259 Division 59.

(2) Violations. The Department may find violation and recommend assessment of civil penalties upon finding that a private security entity has previously engaged in or is currently engaging in any of the following acts:

(a) Operating as a private security entity without a license in violation of ORS 181A.850;

(b) Using a name that implies that the private security entity is, or is affiliated with, an existing law enforcement unit or public safety agency as defined in ORS 181A.355, the organized militia as described in ORS 396.105, the Armed Forces of the United States, a federal law enforcement agency or a federal intelligence agency in violation of ORS 181A.893 and OAR 259-059-0095;

(c) Possessing or using in the scope of employment prohibited equipment, vehicles, uniforms, or titles as defined in OAR 259-059-0090;

(d) Discharging or in any other manner discriminating against private security providers in violation of ORS 181A.914;

(e) Failing to maintain a designated executive manager as required by ORS 181A.900 and OAR 259-059-0100;

(f) Failing to maintain general liability insurance as required by ORS 181A.900 and OAR 259-059-0120;

(g) Failing to maintain proof of ability to pay wages as required by ORS 181A.900 and OAR 259-059-0130;

(h) Failing to have a use of force policy and a citizen arrest policy as required by ORS 181A.900 and OAR 259-059-0110;

(i) Failing to ensure armed private security professionals successfully complete a firearms qualification for each firearm make, model, and caliber that the armed private security professional will possess or have access to while performing private security services as required by ORS 181A.906 and OAR 259-059-0140;

(j) Failing to provide the Professional Workplace Training Course as required by ORS 181A.908 and OAR 259-059-0150;

(k) Failing to provide private security providers employed by the entity with any of the statements as required by ORS 181A.913 and OAR 259-059-0160 through OAR 259-059-0180;

(l) Failing to maintain records as required by OAR Chapter 259 Division 59;

(m) Failing to notify the Department of a change of information as required by OAR 259-059-0190;

(n) Failing to file or furnish all forms and other information as required by ORS 181A.900 to 181A.918 or OAR Chapter 259 Division 59;

(o) Falsifying any information submitted on the application for licensure or on any documents submitted to the Board or the Department; or

(p) Any other violation of ORS 181A.840 to 181A.918 or OAR Chapter 259 Division 59.

(3) The Department may issue a Demand to Examine Books and Records (DEBR) to obtain any record or document related to compliance.

(a) The Department may cause inspection or audits of the records of any private security entity. Records inspected may include any document relating to the requirements of ORS 181A.840 to 181A.918 or OAR Chapter 259 Division 59.

(b) Failure to cooperate or respond to any investigative inquiries or DEBR may result in issuance of a civil penalty under this rule or the denial, refusal to renew, revocation, or suspension of a license under OAR 259-059-0410.

(4) Allegation of Non-Compliance. The Department may issue an Allegation of Non-Compliance when there is a reason to believe a violation has occurred. The purpose of this document is to provide education and allow an opportunity for the private security entity to gain compliance, within a reasonable time agreed on by the Department and the private security entity, without penalty.

(5) Notice of Violation. The Department may issue a Notice of Violation upon discovery of a violation.

(a) The Notice will include a statement of found violations and proposed sanctions, and an opportunity to provide mitigation to the Department.

(b) A private security entity served with a Notice of Violation has 10 business days from the date of mailing or personal service of the Notice to remedy the violation and pay a penalty or submit a written request for a time extension to remedy the violation and pay the penalty.

(c) The Department may extend the time to remedy a violation upon a showing of good cause.

(d) Failure to remedy a violation or request an extension within 10 business days of the mailing of the Notice of Violation may result in the assessment of a civil penalty.

(6) Notice of Intent to Propose a Civil Penalty. When the Board assesses a civil penalty, the Department will issue a Notice of Intent to Propose a Civil Penalty pursuant to the applicable provisions of the Attorney General's Model Rules of Procedures adopted under OAR 259-005-0015.

(a) A private security entity who has been served with a Notice of Intent to Propose a Civil Penalty has 20 business days from the date of mailing or personal service of the Notice to file a written request for a hearing with the Department.

(b) If the Department receives a timely request for a hearing, it will refer the matter to the Office of Administrative Hearings in accordance with OAR 137-003-0515.

(7) Default Orders. If the Department does not receive a timely request for a hearing, the Notice of Intent to Impose a Civil Penalty will become a Final Order Imposing Civil Penalty.

(8) Resolution by Stipulation. The Department is authorized to seek resolution of a civil penalty by stipulation, subject to acceptance and approval by the Board or the Department's Director, if:

(a) The matter is resolved before entry of a Final Order Imposing Civil Penalty;

(b) The private security entity satisfies all terms set forth by the Department within the time allowed; and

(c) Any stipulated penalty amount is received by the Department.

(9) Civil Penalty Amounts.

(a) Each 30-day period in violation of the same statute or rule is considered a separate violation by the Department.

(b) A flagrant violation occurs when a private security entity who, after being notified of a violation, continues or repeats the violation within a 36-month period after the initial violation.

(c) A private security entity will be charged a civil penalty of not less than $1,000 for the first violation and $1,500 for each flagrant violation.

(10) The Department may reduce or waive civil penalties from the amounts set in this rule at any time prior to the entry of a Final Order in situations where further mitigation warrants or the matter is resolved by stipulation.

(11) The Department will recommend the Board assess the full civil penalty amount when a private security entity fails to satisfy the terms as stipulated.

Or. Admin. R. 259-059-0400

DPSST 11-2023, temporary adopt filed 11/30/2023, effective 12/1/2023 through 5/28/2024; DPSST 11-2023, temporary adopt filed 11/30/2023, effective 12/1/2023 through 5/28/2024; DPSST 5-2024, adopt filed 04/25/2024, effective 5/1/2024

Statutory/Other Authority: ORS 181A.870 & ORS 181A.900

Statutes/Other Implemented: ORS 181A.900 & ORS 181A.995