Section 1 Scope
The Commissioner or the representative of the Commissioner
may, after notice and an opportunity for a hearing, assess an administrative
penalty against any person who violates the laws, rules and standards
referenced in this rule.
These rules establish the procedure for issuing
administrative citations, assessing penalties and appealing citations. All
programs enforced by the Division of Fire Safety including boiler/pressure
vessel, fire safety, structural, prevention of carbon monoxide poisoning,
fire-safe (reduced ignition propensity) cigarettes, elevator safety, access for
persons with disabilities, electrical and plumbing, are covered by these rules
ensuring that all programs will have a consistent process for administrative
citations. The purpose of these rules is to encourage code compliance that will
result in improved safety and access for the public in a timely
manner.
Section 2 Authority
These rules are adopted pursuant to:
(a)
20 V.S.A. §
2885; chapter 173, subchapter 5, Boiler &
Pressure Vessels
(b)
20 V.S.A. §
2734; chapter 173, subchapter 2, Fire
Safety
(c)
20 V.S.A. §
2906; chapter 174 Accessibility Standards for
Public Buildings and Parking
(d)
26
V.S.A. §
897; chapter 15
Electricians
(e)
26
V.S.A. §
2175; chapter 39
Plumbers
(f)
20 V.S.A. §
2757; chapter 173, subchapter 2A,
Fire-Safe (Reduced Ignition Propensity) Cigarettes
(g)
21 V.S.A. §§
150 and
156; chapter
3, subchapter 2A, Elevators
Section
3 Issuance of Administrative Citation
(a) The Commissioner or the representative of
the Commissioner may issue an administrative citation, and have the
administrative citation served on the person by certified mail or personal
service. Each citation shall be in writing and shall specifically describe the
nature of the violation, its location and include a reference to the particular
section of the law, rule or standard alleged to have been violated. The
citation shall also state the amount of the fine and the process for
appeal.
(b) The person alleged to
have committed the violations shall have twenty days from the date of service
to notify the Director of the Division of Fire Safety or the individual
identified in the citation, in writing, of any intent to appeal the citation
and fine. If no notice or appeal is filed the citation and penalty shall be
deemed a final order of the Commissioner.
(c) Administrative citations and penalties
issued under these rules shall not limit the authority of the Commissioner or a
representative of the Commissioner under other sections of law to issue orders,
revoke permits, stop work on construction, seek injunctive relief and penalties
through the court system, order buildings closed, demolished or to be fenced
off, or to order the electrical power to be disconnected, or to take any other
appropriate enforcement action. Administrative citations and penalties issued
under these rules shall not limit the authority of the Commissioner of Liquor
Control under
7 V.S.A. §
1009 or the Office of the Attorney General
under
20 V.S.A. §
2757(h).
Section 4 Appeal of Proposed
Penalty
The procedures set forth in
3 VSA §§
809 and
813 shall
cover all hearings under these rules.
(a) A person who appeals a citation issued
pursuant to Section
3
of this rule shall be entitled to a hearing before the Commissioner or designee
within 60 days of filing the notice of appeal. The 60 day time frame may be
extended if the appellant requests, in writing, additional time to prepare for
the hearing.
(b) A hearing notice
to the appellant shall include the following information:
(1) A statement of the time, place, and
nature of the hearing;
(2) A
statement of the legal authority and jurisdiction under which the hearing is to
be held;
(3) A reference to the
sections of the statutes and rules involved;
(4) A short and plain statement of the
matters at issue.
(c)
The Commissioner may appoint a hearing officer to hear evidence on any
complaint and prepare findings and recommend a decision.
(d) The applicant may appear at the hearing
with Counsel, present evidence and cross-examine witnesses.
(e) At the hearing the rules of evidence
shall be according to
3 V.S.A. §
810.
(f) Opportunity shall be given all parties to
respond and present evidence and argument on all issues involved.
(g) The hearing officer may compel, by
subpoena, the attendance and testimony of witnesses and the production of books
and record in accordance with
3 V.S.A. §
809.
(h) At the close of the evidence the
Commissioner or the representative of the Commissioner shall issue a written
decision with findings of fact and conclusions of law determining whether a
violation or violations have occurred and the amount of any penalty to be
assessed.
(i) Nothing in this
section shall prohibit the informal disposition of a citation by stipulation,
agreed settlement, consent order or default. Informal disposition may proceed
with clear and simple documentation without complete adherence to this
section.
Section 5
Administrative Penalty/Fine When a penalty is assessed the fine shall be as
follows:
(a) Permits:
(1) Failure to obtain an identification tag
for a boiler or pressure vessel, the fine shall be $ 100 for each
occurrence.
(2) Failure to obtain a
construction permit before starting work, the fine shall be an additional
amount equal to 1/2 of the construction permit fee due the Department, but not
less than $ 500 for each occurrence.
(3) Failure to file an electrical or plumbing
work notice with the appropriate fee, before starting work, the fine shall be $
100 for an initial violation, and up to $ 500 for subsequent
violations.
(b) Repair
and Construction:
(1) Failure to notify a
commissioned inspector for the repair, alteration or relocation of a boiler or
pressure vessel, the fine shall be $ 100 for each occurrence.
(2) Failure to request a rough electrical
inspection or a rough plumbing inspection for priority work, the fine shall be
no more than $ 250 for each occurrence.
(3) Failure to comply with a stop work order,
the fine shall be $ 500 for each occurrence.
(c) Operation and Use:
(1) Operating or allowing a boiler or
pressure vessel to be operated without a valid certificate of inspection, the
fine shall be $ 250 for each occurrence.
(2) Failure to obtain a final inspection or a
Use and Occupancy Permit before occupancy or using a building, the fine shall
be not more than $ 1000 for each occurrence.
(3) Failure to obtain a final inspection or
an energizing permit before the electrical installation is energized, the fine
shall be $ 250 for each occurrence.
(4) Failure to obtain a final inspection for
priority plumbing work shall be $ 250 for each occurrence.
(d) Code Violations:
In assessing the penalty for code violations the Commissioner
or a duly authorized representative shall consider the seriousness of the
hazard, the number of people exposed to the hazard, whether or not the
violation was corrected after notification of its existence, and whether the
person has been fined for the same or similar violations in the past. In
assessing the penalty where the violation concerns access to the building,
whether access to the building is prevented as well as any alternative
provisions shall be considered. Where a person has been fined for the same or
similar violation in the past the fine may be twice the amount listed in this
section, but may not exceed $ 1000 for each occurrence.
(1) The fine shall not exceed $ 500 for each
code violation which poses a serious threat to life safety, or prevents access
or use of a building or premise.
(2) The fine shall not exceed $ 1000 for each
code violation which poses a serious threat to life safety, or prevents access
or use of a building or premise, where the person has not corrected the
violation after receiving written notification.
(3) The fine shall not exceed $ 250 for each
technical code violation which does not pose a serious threat to life safety,
or does not prevent access or use of a building or premise.
(4) The fine shall not exceed $ 500 for each
technical code violation which does not pose a serious threat to life safety,
or does not prevent access or use of a building or premises, where the person
has not corrected the violation after receiving written notification.
(e) Licensing and Certification:
(1) A person who performs electrical,
elevator or plumbing work without being properly licensed shall be fined not
more than $ 500 for each occurrence.
(2) A person or entity who employs a person
or persons to perform work for which a license is required or where a helper or
apprentice is not properly supervised in violation of any of the programs set
forth in section
1 shall be
fined not more than $ 500 for each occurrence.
(3) A person who performs activities related
to fire or life safety that requires a certificate of fitness under the Vermont
Fire & Building Safety Code without a certificate of fitness shall be fined
not more than $ 500 for each occurrence.
(4) Where a person has been fined for the
same or similar violation in the past the fine may be twice the amount listed
in this section, but may not exceed $ 1000 for each occurrence where authorized
by statute.
(f)
Fire-Safe (reduced ignition propensity) Cigarettes:
The fine shall be assessed in accordance with, and not
exceed, the amounts established under
20 V.S.A. §
2757.
(g) Other:
The fine shall not exceed $ 500 for each administrative or
technical violation not otherwise noted in this section.
Section 6 Overdue Payment
The authority having jurisdiction may refuse to issue a
permit, license, certificate of fitness, work notice, energizing permit, final
inspection, certificate of occupancy or plan review or take other action under
its authority if the owner or a designated representative owes the Department
penalties. The Department may notify other state agencies of noncompliance with
an order of the Commissioner or nonpayment of penalties.
Section 7 Severability Clause
In the event any part or provision of these rules is held to
be illegal, this shall not have the effect of making void or illegal any of the
other parts or provisions of these rules.
Section 8 Effective Date
These rules shall take effect on December 1, 2006, and shall
supersede Appendix II of the Vermont Electrical Safety Rules adopted November
1, 2005 and Article III, Section
3
of the Vermont Elevator Safety Rules adopted December 1, 2005.
20 V.S.A. §§
2734,
2757,
2885,
2906;
21 V.S.A. §§
150,
156;
26
V.S.A. §§
897,
2175
