(1)
The department calculates an appropriate penalty based on the following
factors:
(a) The level of threat to public
health;
(b) The number of previous
violations attributed to the violator; and
(c) The presence of aggravating or mitigating
factors.
(2) The
department determines administrative penalties from the range in the following
penalty schedule. The standard penalty is assessed unless a proportionate
adjustment is warranted and/or there are aggravating or mitigating factors
present.
Penalty Schedule
|
NUMBER OF PREVIOUS VIOLATIONS
|
ADJUSTMENT
FACTORS
|
PUBLIC HEALTH THREAT
|
|
LOW
License Action/
Civil Penalty
|
INTERMEDIATE
License Action/
Civil Penalty
|
HIGH
License Action/
Civil Penalty
|
|
0
|
Mitigated
|
0 Months/$150
|
0 Months/$300
|
3 Months/$350
|
|
Standard
|
0 Months/$200
|
1 Month/$350
|
6 Months/$400
|
|
Aggravated
|
1 Month/$250
|
3 Months/$400
|
9 Months/$450
|
|
1
|
Mitigated
|
0 Months/$200
|
1 Month/$350
|
6 Months/$400
|
|
Standard
|
0 Months/$250
|
3 Months/$400
|
9 Months/$450
|
|
Aggravated
|
3 Months/$300
|
6 Months/$450
|
12 Months/$500
|
|
2
|
Mitigated
|
0 Months/$250
|
3 Months/$400
|
12 Months/$500
|
|
Standard
|
3 Months/$300
|
6 Months/$450
|
18 Months/$500
|
|
Aggravated
|
6 Months/$350
|
9 Months/$500
|
24 Months/$500
|
|
3 or More
|
Mitigated
|
3 Months/$300
|
6 Months/$450
|
18 Months/$500
|
|
Standard
|
6 Months/$350
|
9 Months/$500
|
24 Months/$500
|
|
Aggravated
|
9 Months/$400
|
12 Months/$500
|
36 Months/$500
|
(3)
The department reserves the right to proportionately increase the civil penalty
and decrease the license action under certain circumstances. These
circumstances include situations where license actions as a deterrent are
ineffective and include, but are not limited to, violations by persons who are
not licensed.
(4) The department
reserves the right to proportionately decrease the civil penalty and increase
the license action when circumstances in a particular case demonstrate the
ineffectiveness of a civil penalty as a deterrent.
(5)
(a)
When assessing a civil penalty or license action, the department considers any
previous violation(s) for the following period of time, depending on the
severity of the previous violation(s):
(i)
Three years for low public health threat;
(ii) Five years for intermediate public
health threat; or
(iii) No limit
for high public health threat.
(b) The time period will begin on the date of
adjudication or settlement of the previous violation(s), rather than the date
on which the incident or conduct occurred.
(6) The department considers circumstances
that increase the seriousness of a violation, including, but not limited to,
the following aggravating factors:
(a) The
extent to which the violation is part of a pattern of the same or substantially
similar conduct;
(b) The extent to
which previous education, technical assistance, or notice of correction has
been provided for the same or substantially similar conduct; and
(c) The extent to which the violation caused
serious and actual injury or death to a person or persons.
(7) If the department determines that one or
more aggravating factors are present, then the department may assess the
aggravated penalty or may increase the penalty to a level greater than listed
in the penalty schedule, including, but not limited to, revocation of the
license.
(8) The department will
consider circumstances that decrease the seriousness of a violation, including,
but not limited to, the following mitigating factors:
(a) Voluntary disclosure of the
violation;
(b) Complete cooperation
and voluntary disclosure during the investigation of the violation;
and
(c) Voluntary taking of
remedial measures that will result in increased public health protection and
that will result in a decreased likelihood that the violation will be repeated
and that other violations will occur.
(9) If the department determines that one or
more mitigating factors are present, then the department may assess the
mitigated penalty or may decrease the penalty to a level less than listed in
the penalty schedule.
(10) The
maximum civil penalty that may be imposed by the department is five hundred
dollars per day for each violation.
(11) The department considers each violation
to be a separate and distinct event. Each day a violation is continued is a
separate and distinct violation. When a person has committed multiple
violations, the violations are cumulative for purposes of calculating the
appropriate penalty. Penalties are added together, rather than served
concurrently.
(12) Nothing in this
section prevents the department from responding to a violation by:
(a) Declining to pursue an administrative
penalty;
(b) Issuing a notice of
correction instead of pursuing an administrative penalty; or
(c) Negotiating settlement of a case on such
terms and for such reason as the department deems appropriate. Violations
covered by a prior settlement agreement may be used for the purpose of
determining the appropriate penalty for the current alleged violation(s),
unless prohibited by the prior settlement agreement.
