Iowa Code r. 641-70.10 - Denial, suspension, or revocation of certification; denial, suspension, revocation, or modification of course approval; and imposition of penalties
(1) When the
department finds that the applicant, certified lead professional, or certified
firm has committed any of the following acts, the department may deny an
application for certification, may suspend or revoke a certification, may
prohibit specific work practices, may require a project conducted by persons or
firms that are not certified or a project where prohibited work practices are
being used to be halted, may require the cleanup of lead hazards created by the
use of prohibited work practices, may impose a civil penalty, may place on
probation, may require additional education, may require reexamination of the
state certification examination, may issue a warning, may refer the case to the
office of the county attorney for possible criminal penalties pursuant to Iowa
Code section 135.38, or may impose other
sanctions allowed by law as may be appropriate.
a. Failure or refusal to comply with any
requirements of this chapter.
b.
Failure or refusal to establish, maintain, provide, copy, or permit access to
records or reports as required by rules
641-70.3 (135) to
641-70.7 (135).
c. Failure or refusal to permit entry or
inspection as described in subrules 70.9(1) to 70.9(3).
d. Obtaining or attempting to obtain
certification through fraudulent representation.
e. Failure to obtain certification from the
department and performing work requiring certification.
f. Fraudulently obtaining certification and
engaging in any lead-based paint activities requiring certification.
g. Conducting any part of a lead-based paint
activity that requires certification without being certified or with a
certification that has lapsed.
h.
Obtained documentation of training through fraudulent means.
i. Gained admission to an accredited training
program through misrepresentation of admission requirements.
j. Obtained certification through
misrepresentation of certification requirements or related documents pertaining
to education, training, professional registration, or experience.
k. Performed work requiring certification at
a job site without having proof of current certification.
l. Permitted the duplication or use of the
individual's or firm's own certificate by another.
m. Failed to follow the standards of conduct
required by 641-70.6 (135).
n. Failed to comply with federal, state, or
local lead-based paint statutes and regulations, including the requirements of
this chapter.
o. Performed work for
which certification is required with employees or persons under the control of
the certified elevated blood lead (EBL) inspection agency or certified firm who
were not appropriately certified.
p. Knowingly made misleading, deceptive,
untrue, or fraudulent representations in the practice of lead professional
activities or engaged in unethical conduct or practice harmful or detrimental
to the public. Proof of actual injury need not be established.
q. Used untruthful or improbable statements
in advertisements. This includes, but is not limited to, an action by a lead
professional making information or intention known to the public that is false,
deceptive, misleading, or promoted through fraud or
misrepresentation.
r. Falsified
reports and records required by this chapter.
s. Accepted any fee by fraud or
misrepresentation.
t. Negligence by
the firm or individual in the practice of lead professional activities. This
includes a failure to exercise due care, including negligent delegation of
duties or supervision of employees or other individuals, whether or not injury
results; or any conduct, practice, or conditions that impair the ability of the
firm or individual to safely and skillfully practice the profession.
u. Revocation, suspension, or other
disciplinary action taken by a certification or licensing authority of this
state, another state, territory, or country; or failure by the firm or
individual to report such action in writing within 30 days of the final action
by such certification or licensing authority. A stay by an appellate court
shall not negate this requirement; however, if such disciplinary action is
overturned or reversed by a court of last resort, the report shall be expunged
from the records of the board.
v.
Failed to comply with the terms of a department order or the terms of a
settlement agreement or consent order.
w. Representation by a firm or individual
that the firm or individual is certified when the certification has been
suspended or revoked or has not been renewed.
x. Failed to respond within 20 days of
receipt of communication from the department that was sent by registered or
certified mail.
y. Engaged in any
conduct that subverts or attempts to subvert a department
investigation.
z. Failed to comply
with a subpoena issued by the department or failure to cooperate with a
department investigation.
aa.
Failed to pay costs assessed in any disciplinary action.
ab. Been convicted of a felony or misdemeanor
related to lead professional activities or the conviction of any felony or
misdemeanor that would affect the ability of the firm or individual to perform
lead professional activities. A copy of the record of conviction or plea of
guilty shall be conclusive evidence.
ac. Unethical conduct. This includes, but is
not limited to, the following:
(1) Verbally or
physically abusing a client or coworker.
(2) Improper sexual conduct with or making
suggestive, lewd, lascivious, or improper remarks or advances to a client or
coworker.
(3) Engaging in a
professional conflict of interest.
(4) Mental or physical inability reasonably
related to and adversely affecting the ability of the firm or individual to
practice in a safe and competent manner.
(5) Being adjudged mentally incompetent by a
court of competent jurisdiction.
(6) Habitual intoxication or addiction to
drugs.
1. The inability of a lead professional
to practice with reasonable skill and safety by reason of the excessive use of
alcohol on a continuing basis.
2.
The excessive use of drugs which may impair a lead professional's ability to
practice with reasonable skill or safety.
3. Obtaining, possessing, attempting to
obtain or possess, or administering controlled substances without lawful
authority.
(7)
Registration on a state sex offender registry.
(2) The department may deny, suspend, revoke,
or modify the approval for a course, or may place on probation, or impose other
sanctions allowed by law as may be appropriate, or may impose a civil penalty
or may refer the case to the office of the county attorney for possible
criminal penalties pursuant to Iowa Code section
135.38 when it finds that the
training program, training manager, or other person with supervisory authority
over the course has committed any of the following acts:
a. Misrepresented the contents of a training
course to the department or to the student population.
b. Failed to submit required information or
notifications in a timely manner.
c. Failed to maintain required
records.
d. Falsified approval
records, instructor qualifications, or other information or documentation
related to course approval.
e.
Failed to comply with the training standards and requirements in
641-70.4 (135).
f. Made false or misleading statements to the
department in its application for approval or reapproval which the department
relied upon in approving the application.
g. Failed to comply with federal, state, or
local lead-based paint statutes and regulations, including the requirements of
this chapter.
h. Knowingly made
misleading, deceptive, untrue, or fraudulent representations in the practice of
conducting a training program or engaged in unethical conduct or practice
harmful or detrimental to the public. Proof of actual injury need not be
established.
i. Used untruthful or
improbable statements in advertisements. This includes, but is not limited to,
an action by a training program making information or intention known to the
public that is false, deceptive, misleading, or promoted through fraud or
misrepresentation.
j. Falsified
reports and records required by this chapter.
k. Accepted any fee by fraud or
misrepresentation.
l. Revocation,
suspension, or other disciplinary action taken by a certification or licensing
authority of this state, another state, territory, or country; or failure by
the firm or individual to report such action in writing within 30 days of the
final action by such certification or licensing authority. A stay by an
appellate court shall not negate this requirement; however, if such
disciplinary action is overturned or reversed by a court of last resort, the
report shall be expunged from the records of the board.
m. Failed to comply with the terms of a
department order or the terms of a settlement agreement or consent
order.
n. Failed to respond within
20 days of receipt of communication from the department that was sent by
registered or certified mail.
o.
Engaged in any conduct that subverts or attempts to subvert a department
investigation.
p. Failed to comply
with a subpoena issued by the department or failure to cooperate with a
department investigation.
q. Failed
to pay costs assessed in any disciplinary action.
(3)
Reinstatement.
a. Any individual, training program, or firm
that has been revoked, denied, or suspended may apply to the department in
accordance with the terms and conditions of the order of revocation or
suspension, unless the order of revocation provides that the certification is
permanently revoked.
b. If the
order of revocation or suspension did not establish terms and conditions upon
which reinstatement might occur, or if the certification was voluntarily
surrendered, an initial application for reinstatement may not be made until one
year has elapsed from the date of the order or the date of the voluntary
surrender.
(4) Complaints
and other requests for action under this rule. Complaints regarding a certified
lead professional, a certified elevated blood lead (EBL) inspection agency, a
certified firm, or an approved course shall be submitted in writing to the Iowa
Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th
Street, Des Moines, Iowa 50319-0075. The complainant shall provide:
a. The name of the certified lead
professional, certified elevated blood lead (EBL) inspection agency, or
certified firm and the specific details of the action(s) by the certified lead
professional, certified elevated blood lead (EBL) inspection agency, or
certified firm that did not comply with the rules; or
b. The name of the lead professional or firm
that conducted lead professional activities without the appropriate
certification or approval as required by the rules; or
c. The name of the sponsoring person or
organization of an approved course and the specific way(s) that an approved
course did not comply with the rules; or
d. The name of the sponsoring person or
organization that provided a course without the approval required by these
rules.
(5) Civil
penalties.
a. Before instituting any
proceeding to impose a civil penalty under Iowa Code section
135.105A, the department shall
serve a written notice of violation upon the person charged. The notice of
violation shall specify the date or dates, facts, and the nature of the alleged
act or omission with which the person is charged and shall identify
specifically the particular provision or provisions of the law, rule,
regulation, certification, approval, or cease and desist order involved in the
alleged violation and must state the amount of each proposed penalty. The
notice of violation shall also advise the person charged that the civil penalty
may be paid in the amount specified therein, or the proposed imposition of the
civil penalty may be protested in its entirety or in part, by a written answer,
either denying the violation or showing extenuating circumstances. The notice
of violation shall advise the person charged that upon failure to pay a civil
penalty subsequently determined by the department, if any, unless compromised,
remitted, or mitigated, the fee shall be collected by civil action, pursuant to
Iowa Code section 135.105A.
b. Within 20 days of the date of a notice of
violation or other time specified in the notice, the person charged may either
pay the penalty in the amount proposed or answer the notice of violation. The
answer to the notice of violation shall state any facts, explanations, and
arguments denying the charges of violation, or demonstrating any extenuating
circumstances, error in the notice of violation, or other reason why the
penalty should not be imposed and may request remission or mitigation of the
penalty.
c. If the person charged
with violation fails to answer within the time specified in paragraph
70.10(5)"b," an order may be issued imposing the civil penalty
in the amount set forth in the notice of violation described in paragraph
70.10(5)"a."
d. If
the person charged with violation files an answer to the notice of violation,
the department, upon consideration of the answer, will issue an order
dismissing the proceeding or imposing, mitigating, or remitting the civil
penalty. The person charged may, within 20 days of the date of the order or
other time specified in the order, request a hearing.
e. If the person charged with violation
requests a hearing, the department will issue an order designating the time and
place of hearing. The hearing shall be conducted according to the procedural
rules of the department of inspections and appeals found in 481-Chapter 10,
Iowa Administrative Code.
f. If a
hearing is held, an order will be issued after the hearing by the presiding
officer or the department dismissing the proceeding or imposing, mitigating, or
remitting the civil penalty.
g. The
department may compromise any civil penalty. If the civil penalty is not
compromised, or is not remitted by the presiding officer or the department, and
if payment is not made within ten days following either the service of the
order described in paragraph 70.10(5)"c" or
"f," or the expiration of the time for requesting a hearing
described in paragraph 70.10(5)"d," the department may refer
the matter to the attorney general for collection.
h. Except when payment is made after
compromise or mitigation by the department of justice or as ordered by a court
of the state, following reference of the matter to the attorney general for
collection, payment of civil penalties imposed under Iowa Code section
135.105A shall be made by check,
draft, or money order payable to the Iowa Department of Public
Health.
(6) Appeals.
a. Notice of denial, suspension or revocation
of certification, or denial, suspension, revocation, or modification of course
approval shall be sent to the affected individual or organization by restricted
certified mail, return receipt requested, or by personal service. The affected
individual or organization shall have a right to appeal the denial, suspension
or revocation.
b. An appeal of a
denial, suspension or revocation or other disciplinary action shall be
submitted by certified mail, return receipt requested, within 20 days of the
receipt of the department's notice to the Iowa Department of Public Health,
Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa
50319-0075. If such a request is made within the 20-day time period, the notice
of denial, suspension or revocation or other disciplinary action shall be
deemed to be suspended. Prior to or at the hearing, the department may rescind
the notice upon satisfaction that the reason for the denial, suspension or
revocation or other disciplinary action has been or will be removed. After the
hearing, or upon default of the applicant or alleged violator, the
administrative law judge shall affirm, modify or set aside the denial,
suspension or revocation or other disciplinary action. If no appeal is
submitted within 20 days, the denial, suspension or revocation or other
disciplinary action shall become the department's final agency
action.
c. Upon receipt of an
appeal that meets contested case status, the appeal shall be transmitted to the
department of inspections and appeals within five working days of receipt
pursuant to the rules adopted by that agency regarding the transmission of
contested cases. The information upon which the denial, suspension or
revocation is based shall be provided to the department of inspections and
appeals.
d. The hearing shall be
conducted according to the procedural rules of the department of inspections
and appeals found in 481-Chapter 10, Iowa Administrative Code.
e. When the administrative law judge makes a
proposed decision and order, it shall be served by restricted certified mail,
return receipt requested, or delivered by personal service. The proposed
decision and order then becomes the department's final agency action without
further proceedings ten days after it is received by the aggrieved party unless
an appeal to the director is taken as provided in paragraph
70.10(6)"f."
f.
Any appeal to the director for review of the proposed decision and order of the
administrative law judge shall be filed in writing and mailed to the director
by certified mail, return receipt requested, or delivered by personal service
within ten days after the receipt of the administrative law judge's proposed
decision and order by the aggrieved party. A copy of the appeal shall also be
mailed to the administrative law judge. Any request for appeal shall state the
reason for appeal.
g. Upon receipt
of an appeal request, the administrative law judge shall prepare the record of
the hearing or submission to the director. The record shall include the
following:
(1) All pleadings, motions, and
rulings.
(2) All evidence received
or considered and all other submissions by recording or transcript.
(3) A statement of all matters officially
noticed.
(4) All questions and
offers of proof, objection, and rulings thereon.
(5) All proposed findings and
exceptions.
(6) The proposed
findings and order of the administrative law judge.
h. The decision and order of the director
becomes the department's final agency action upon receipt by the aggrieved
party and shall be delivered by restricted certified mail, return receipt
requested, or by personal service.
i. It is not necessary to file an application
for a rehearing to exhaust administrative remedies when appealing to the
director or the district court as provided in Iowa Code section
17A.19. The aggrieved party to
the final agency action of the department who has exhausted all administrative
remedies may petition for judicial review of that action pursuant to Iowa Code
chapter 17A.
j. Any petition for
judicial review of a decision and order shall be filed in the district court
within 20 days after the decision and order becomes final. A copy of the notice
of appeal shall be sent to the department by certified mail, return receipt
requested, or by personal service to the Iowa Department of Public Health, Lead
Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa
50319-0075.
k. The party who
appeals a final agency action to the district court shall pay the cost of the
preparation of a transcript of the contested case hearing for the district
court.
(7) Public
notification.
a. The public shall be notified
of the suspension, revocation, modification, or reinstatement of course
approval through appropriate mechanisms.
b. The department shall maintain a list of
courses for which the approval has been suspended, revoked, modified, or
reinstated.
c. The public shall be
notified of the suspension or revocation of the certification of a lead
professional or firm.
d. The
department shall maintain a list of lead professionals and firms for which
certification has been suspended or revoked.
Notes
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