|(a) If the Enforcement Committee decides to pursue
an administrative penalty, a Notice of Alleged Violation must be issued
to the Respondent. This notice will include a brief summary of the
alleged violation, state the amount of the administrative penalty
pursued, and inform the Respondent of the Respondent's right to a
hearing before the State Office of Administrative Hearings on the
occurrence of the violation or the amount of the penalty. There is
a rebuttable presumption that the notice is received three (3) days
after it was mailed.
(b) Not later than the 20th day after the Notice of
Alleged Violation is received by the Respondent, the Respondent, in
(1) agree to settle the matter without a formal hearing
before the State Office of Administrative Hearings and accept the
determination and settlement penalty recommended by the Enforcement
(2) make a request for a formal hearing before the
State Office of Administrative Hearings on the occurrence of the violation,
the amount of the penalty, or both.
(c) If, within twenty (20) days of receipt, the Respondent
fails to respond to the Notice of Alleged Violation and either accept
the Enforcement Committee's determination and recommended administrative
penalty, sanction, or both, or make a written request for a hearing
on the determination, the Enforcement Committee may propose entry
of a default order against the Respondent unless otherwise provided
by applicable law.
(d) Where the Respondent fails to answer to the Notice
of Alleged Violation, the Enforcement Committee may present to the
Board a proposed Default Order containing findings of fact and conclusions
of law. The Board may grant the relief recommended in the proposed
Default Order, or such other relief as may be justified by the evidence
presented by the Enforcement Committee.
(e) If the Respondent agrees to settle the matter without
a formal hearing and accepts the determination and amount of penalty
recommended by the Enforcement Committee, the Respondent must pay
the penalty to the Board according to an agreed schedule, or if there
is no agreed schedule, not later than sixty (60) days following the
date that the Notice of Alleged Violation was issued.
(f) The Enforcement Committee must report the proposed
agreement to the Board stating a summary of the facts or allegations
against the Respondent and the amount of the recommended administrative
penalty. The Board may approve the proposed agreement and its recommended
penalty by order. If the Respondent subsequently violates the Board's
Order adopting the agreement between the Respondent and the Enforcement
Committee by failing to pay the penalty timely, the Board may:
(1) refuse to renew the Respondent's license or registration;
(2) refuse to issue a new license or registration to
the Respondent, under §1310.451 of the Plumbing License Law;
(3) revoke the Respondent's license or registration;
(4) may sue the Respondent to collect the penalty owed
under §1301.712 of the Plumbing License Law.
(g) The Enforcement Committee must set a formal hearing
on the matter as a contested case before an administrative law judge
at the State Office of Administrative Hearings if:
(1) the Respondent requests a formal hearing as required
by subsection (b)(2) of this section;
(2) the parties do not agree to settle the matter as
stated in subsection (e) of this section;
(3) the Board declines to approve the proposed agree
in subsection (f) of this section; or
(4) the Respondent attends at the time and place prescribed
in the notice required by subsection (d) of the section.
(h) Following the hearing, the administrative law judge
must issue a proposal for decision to the Board containing findings
of facts and conclusions of law. While the administrative law judge
may recommend a sanction, findings of fact and conclusions of law
are inappropriate for sanction recommendations, and sanction recommendations
in the form of findings of fact and conclusions of law are an improper
application of applicable law and these rules. Sections 1301.451,
1301.701, and 1301.706 of the Plumbing License Law provide that the
Board must impose the appropriate sanction. In all cases, the Board
has the discretion to impose the sanction that best accomplishes the
Board's legislatively-assigned enforcement goals. The Board is the
ultimate arbiter of the proper penalty.
(i) The Board may impose an administrative penalty
alone or in addition to other sanctions permitted under the Plumbing
(j) In determining the proper administrative penalty,
the Board will apply the factors to be considered set forth in §1301.702(b)
of the Plumbing License Law.
(k) The following table contains guidelines for the
assessment of administrative penalties in disciplinary matters. This
table is for standard violations under normal circumstances and does
not necessarily include every possible violation of the Plumbing License
Law or Board Rules. The table is divided into two classes of violations.
Class A violations are those violations with greater potential to
jeopardize public health, safety, welfare, property, or environment.
Class B violations are those with less immediate potential to jeopardize
public health, safety, welfare, property, or environment.
(l) The amounts specified in the table in subsection
(k) of this section are guidelines only. The Board retains the right
to increase or decrease the amount of an administrative penalty based
on the circumstances in each case. In particular, the Board may increase
the amount of administrative penalties when the Respondent has committed
multiple violations (e.g., some combination of different violations).
(m) Because it is the policy of the Board to pursue
expeditious resolution of complaints when appropriate, administrative
penalties in uncontested cases may be less than the amounts specified
in the table in subsection (k) of this section. Among other reasons,
this may be because the Respondent admits fault, takes steps to rectify
matters, timely responds to Board concerns, or identifies mitigating
circumstances, and because settlements avoid additional administrative
costs to the Board.
(n) The cost of preparing the transcript of an administrative
hearing is not an administrative penalty. Yet in all cases where the
Board has determined that a violation occurred, the Board assesses
the cost of the transcript of the administrative hearing to the Respondent.
(o) Based on the proposal for decision, including the
findings of fact and conclusions of law, the Board must issue an Order
stating its decision in the contested case and a notice to the Respondent
of the Respondent's right to judicial review of the Order.
(p) When the Default Order adopted under subsection
(d) of this section or the Order adopted under subsection (o) of this
section includes the imposition of an administrative penalty:
(1) not later than the 30th day after the date that
the Default Order or Order becomes final:
(A) the Respondent must pay the penalty to the Board;
(B) the Respondent must file a petition for judicial
review contesting the occurrence of the violation, the amount of the
penalty, or both, in accordance with §1301.707 or §1301.708
of the Plumbing License Law.
(2) after all opportunities for judicial review have
passed and it is determined that the Respondent owes the penalty and
fails to pay the penalty timely:
(A) the Board is authorized to refuse to renew the
Respondent's license or registration and refuse to issue a new license
or registration to the Respondent, under §1301.707 of the Plumbing
License Law; and
(B) the Attorney General may sue the Respondent to
collect the penalty under §1301.712 of the Plumbing License Law.