Iowa Admin. Code r. 661-235.10 - Grounds for suspension, revocation, or denial of commercial explosive licenses; appeals
Current through Register Vol. 44, No. 6, September 22, 2021
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661—235.10(101A,252J) Grounds for suspension, revocation, or denial of commercial explosive licenses; appeals.
235.10(1) The state fire marshal may refuse to issue a contractor or blaster license for the manufacture, importation, distribution, sale, and commercial use of explosives sought pursuant to Iowa Code section 101A.2 or may suspend or revoke such a license for any of the following reasons:
a. Finding that the applicant or licensee is not of good moral character and sound judgment. “Not of good moral character and sound judgment” means disqualified by any provision of federal or Iowa law from possessing explosives, firearms, or offensive weapons.
b. Finding that the applicant or licensee lacks sufficient knowledge of the use, handling, and storage of explosive materials to protect the public safety.
c. Finding that the applicant or licensee falsified information in the current or any previous license application.
d. Finding that the applicant or licensee has been adjudged mentally incompetent at any time by any court, been committed by any court to any mental institution, received inpatient treatment for any mental illness in the past three years, or received treatment by a health care professional for a serious mental illness or disorder which impairs a person’s capacity to function normally and safely, both toward themselves and others.
e. Proof that the licensee or applicant has violated any provision of Iowa Code chapter 101A, this chapter, or 661—Chapter 231.
f. Receipt of a certificate of noncompliance from the child support recovery unit of the Iowa department of human services, pursuant to the procedures set forth in Iowa Code chapter 252J.
g. Receipt of a certificate of noncompliance from the centralized collection unit of the department of revenue, pursuant to Iowa Code chapter 272D.
h. Conviction of a felony offense, if the offense directly relates to the profession or occupation of the applicant, in the courts of this state or another state, territory or country. Conviction as used in this subrule includes a conviction of an offense which if committed in this state would be a felony without regard to its designation elsewhere and includes a finding or verdict of guilt made or returned in a criminal proceeding even if the adjudication of guilt is withheld or not entered. A certified copy of the final order or judgment of conviction or plea of guilty in this state or in another state constitutes conclusive evidence of the conviction. If an applicant is denied under this provision, the applicant shall be notified of the specific reasons for the denial.
i. Knowingly making misleading, deceptive, untrue or fraudulent representations in the practice of the applicant’s profession or engaging in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established.
j. Willful or repeated violations of the provisions of this chapter.
235.10(2) An applicant or licensee whose application is denied or a licensee whose license is suspended or revoked for a reason other than receipt of a certificate of noncompliance from the child support recovery unit or a certificate of noncompliance from the department of revenue may appeal that action pursuant to 661—Chapter 10, except that wherever “commissioner of public safety” or “department of public safety” appears, “state fire marshal” shall be substituted. Applicants or licensees whose licenses are denied, suspended, or revoked because of receipt by the department of a certificate of noncompliance issued by the child support recovery unit or the department of revenue shall be subject to the provisions of rule 661—235.10(101A,252J). Procedures specified in 661—Chapter 10 for contesting department actions shall not apply in these cases.
235.10(3) The state fire marshal shall notify the employing commercial explosive contractor licensee of the denial, suspension, or revocation of a commercial explosive blaster license.
235.10(4) Disqualifications for criminal convictions limited.
a. Notwithstanding any other provision of law to the contrary, a person’s conviction of a crime may be grounds for the denial, revocation, or suspension of a license only if an unreasonable risk to public safety exists because the offense directly relates to the duties and responsibilities of the profession and the state fire marshal does not grant an exception pursuant to paragraph 235.10(4)“d.”
b. The state fire marshal shall provide a list of the specific convictions that may disqualify an applicant from receiving a license. Any such offense shall be an offense that directly relates to the duties and responsibilities of the profession.
c. The state fire marshal shall not deny an application for a license on the basis of an arrest that was not followed by a conviction or based on a finding that an applicant lacks good character, suffers from moral turpitude, or on other similar basis.
d. The state fire marshal shall grant an exception to an applicant who would otherwise be denied a license due to a criminal conviction if the following factors establish by clear and convincing evidence that the applicant is rehabilitated and an appropriate candidate for licensure:
(1)The nature and seriousness of the crime for which the applicant was convicted.
(2)The amount of time that has passed since the commission of the crime. There is a rebuttable presumption that an applicant is rehabilitated and an appropriate candidate for licensure five years after the date of the applicant’s release from incarceration, provided that the applicant was not convicted of sexual abuse in violation of Iowa Code section 709.4, a sexually violent offense as defined in Iowa Code section 229A.2, dependent adult abuse in violation of Iowa Code section 235B.20, a forcible felony as defined in Iowa Code section 702.11, or domestic abuse assault in violation of Iowa Code section 708.2A, and the applicant has not been convicted of another crime after release from incarceration.
(3)The circumstances relative to the offense, including any aggravating and mitigating circumstances or social conditions surrounding the commission of the offense.
(4)The age of the applicant at the time the offense was committed.
(5)Any treatment undertaken by the applicant.
(6)Whether a certification of employability has been issued to the applicant pursuant to Iowa Code section 906.19.
(7)Any letters of reference submitted on behalf of the applicant.
(8)All other relevant evidence of rehabilitation and present fitness of the applicant.
e. An applicant may petition the state fire marshal in writing as specified in 661—subrule 275.1(4) for a determination as to whether the applicant’s criminal record will prevent the applicant from receiving a license. The state fire marshal shall issue such a determination within 30 days of receiving the petition. The state fire marshal shall determine whether an applicant’s criminal record will prevent the applicant from receiving a license and while determining whether to deny an applicant’s application on the basis of an applicant’s criminal conviction. The state fire marshal may charge a fee to recoup the costs of such a determination, provided that such fee shall not exceed $25.
f. When the state fire marshal denies an applicant a license solely or partly because of the applicant’s prior conviction of a crime, the state fire marshal shall notify the applicant in writing of all of the following:
(1)The grounds for the denial or disqualification.
(2)That the applicant has the right to a hearing to challenge the state fire marshal’s decision.
(3)The earliest date the applicant may submit a new application.
(4)That evidence of rehabilitation of the applicant may be considered upon reapplication.
g. A determination by the state fire marshal that an applicant’s criminal conviction is specifically listed as a disqualifying conviction and the offense directly relates to the duties and responsibilities of the applicant’s profession must be documented in written findings for each factor specified in paragraph 235.10(4)“d” sufficient for a review by a court.
h. In any administrative or civil hearing authorized by this rule or Iowa Code chapter 17A, the state fire marshal shall carry the burden of proof on the question of whether the applicant’s criminal offense directly relates to the duties and responsibilities of the profession for which the license is sought.
i. The state fire marshal may require an applicant with a criminal record to submit the applicant’s complete criminal record detailing an applicant’s offenses with an application. The state fire marshal may also require an applicant with a criminal record to submit a personal statement regarding whether each offense directly relates to the duties and performance of the applicant’s occupation. For the purposes of this subrule, “complete criminal record” includes the complaint and judgment of conviction for each offense of which the applicant has been convicted.
[ARC 8303B, IAB 11/18/09, effective 1/1/10; ARC 5395C, IAB 1/13/21, effective 2/17/21]