Section 0400-02-02-.35 - NOTICES OF VIOLATION(1) In addition to or in lieu of any other lawful action, the Commissioner may issue a notice of violation for any violation for which the Commissioner is authorized to seek a civil penalty pursuant to T.C.A. § 11-1-109 by notifying a person of the Commissioner's intent to seek assessment of a civil penalty pursuant to T.C.A. § 11-1-109(c) and offering to settle the matter by the person to whom the notice of violation was issued admitting that the alleged violation occurred and paying the proposed penalty according to paragraph (3) of this rule. Multiple alleged violations and proposed penalties may appear in a single notice of violation.(2) Except as set out by paragraph (4) of Rule 0400-02-02-.34, a notice of violation issued pursuant to paragraph (1) of this rule shall be served by U.S. mail, personal service, email, or any other lawful means, on the person named in the notice of violation. The name and signature of the person issuing the notice of violation shall appear on the notice of violation.(3) Any person served a notice of violation pursuant to this rule:(a) May provide the Commissioner with a copy of the notice of violation signed by the person named on the notice of violation accepting the proposed civil penalty and admitting to the violations alleged in the notice of violation. The signed notice of violation shall be sent to the Department as provided on the notice of violation or the Department's website. The person named on the notice of violation shall, by any means made available by the Department, make payment in the amount of the proposed civil penalty designated in the notice of violation within 30 calendar days of service of the notice of violation. The Commissioner may further settle the violations alleged in a notice of violation by such terms as the Commissioner determines appropriate; or(b) If a person does not accept the proposed civil penalty set out in a notice of violation, or any subsequent offer of settlement, the Commissioner, through the attorney general and reporter, may institute proceedings for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation occurred, in the name of the Department to seek civil penalties pursuant to T.C.A. § 11-1-109(b)(3) and (c) for each violation. Nothing in this rule shall prohibit the Commissioner from seeking civil penalties greater than those proposed in the notice of violation or other offer of settlement.(4) Signing and returning a notice of violation without remitting full payment of the proposed penalty in the notice of violation within the required 30 calendar days of service of the notice of violation may result in the Commissioner instituting proceedings through the attorney general and reporter for assessment in the chancery court of Davidson County or in the chancery court of the county in which all or part of the violation occurred.(5) Each notice of violation shall state the proposed penalty for the violation alleged. The date of the violation shall be the date that the violation occurred, not the date that any penalty is proposed through a notice of violation. Only penalties accepted according to subparagraph (3)(a) of this rule, or assessed according to subparagraph (3)(b) of this rule, shall be considered in determining whether to issue a second, or third or subsequent violation within a 365-day period pursuant to subparagraph (b) of this paragraph. Each day of a continued violation shall constitute a separate violation. The following shall be the schedule of standard penalties to be proposed by the Department. (a) For an alleged violation of Rule 0400-02-02-.34: $35.(b) For any other alleged violation: 1. First violation by an individual within a 365-day period, $50;2. Second violation by an individual within a 365-day period, $100; and3. Third or subsequent violation by an individual within a 365-day period, $200.(6) Any proposed civil penalties paid to the Department pursuant to this rule shall be deposited in the state park fund created by T.C.A. § 11-3-302.(7) Nothing in this rule shall limit the Commissioner's authority to:(a) Seek an assessment of civil penalties in excess of those proposed in a notice of violation through an action brought pursuant to T.C.A. § 11-1-109(c) without proposing to settle the matter by a notice of violation;(b) Settle the allegations contained in a notice of violation after the expiration of the 30- day acceptance period; or(c) Pursue any other lawful criminal or civil remedy.Tenn. Comp. R. & Regs. 0400-02-02-.35
New rule filed January 22, 2021; effective 4/22/2021.Authority: T.C.A. §§ 4-5-201, et seq.; 11-1-101(e); and 11-1-109(b). Administrative History: