(A) The department may issue administrative citations and cease and desist orders, in person or by certified mail, and may assess administrative penalties against any person for a violation of this chapter.
(B)(1) The department may issue separate citations and assess separate administrative penalties for each violation. However, no more than two thousand dollars in administrative penalties may be assessed against a person a day pursuant to a single citation.
(2) Administrative citations may include an order to abate any existing violations, where possible and appropriate, by a date certain. Abatement, timely or otherwise, does not absolve the accused of professional misconduct or of other violation of law or terminate the board's jurisdiction to prosecute the accused on these grounds. However, the board or hearing officer may take timely abatement into consideration in determining an appropriate sanction, including reduction or elimination of a minimum sanction otherwise required by law.
(3) If within fifteen calendar days of a person's receipt of an administrative citation issued by the department, the person files a written protest of the citation with the board administrator, a protest hearing must be scheduled before the board or before a hearing officer appointed by the board. Timely filing of the protest stays imposition of the sanctions assessed by the citation until final order of the board. If no protest is timely filed, the citation is deemed a final order of the board and the administrative penalties must be paid within thirty days of receipt of the citation.
(4) If a citation is timely protested, the protesting party must be given no less than thirty days' notice of the place and date of the protest hearing. The hearing must be conducted in accordance with the Administrative Procedures Act hearing procedures under this title. Service of the notice of hearing shall be accomplished in the same manner as specified for pleadings by Section 40-23-90. Failure to appear may be deemed a default and an admission to the violations specified in the citation.
(5) After notice and hearing, the board or hearing examiner shall issue an order which may affirm, dismiss, or modify the citation. A party aggrieved by a final order from a protest hearing conducted by a hearing officer may appeal to the full board within fifteen calendar days of the party's receipt of a written order by a hearing. The notice of appeal must be in writing and served upon the administrator of the board. Appeals from the decision of the board are to an administrative law judge in accordance with Title 1, Chapter 23, Article 5.
(6) Nothing in this section is to be construed as limiting in any way the authority of the board or the department to seek other applicable remedies which are provided by this chapter or by any other provision of law including, but not limited to, civil penalties, injunctive relief, and criminal sanctions.
(C) A licensee who within any three-year period, or as otherwise provided by regulation, has accumulated at least three final, affirmed citations pursuant to this chapter and who is accused of any subsequent violations of this chapter or regulations promulgated under this chapter, upon receipt of a formal complaint and notice of hearing, shall appear before the board for a disciplinary hearing. The licensee is subject to all applicable sanctions that may be imposed under these proceedings. Further, in any circumstance where a citation is issuable pursuant to this chapter, except for prosecution for unlicensed practice, the department may elect to recommend the matter for disciplinary proceedings by formal complaint pursuant to Section 40-23-90.
(D) A person who, without a valid license as required by this chapter, engages in any activity requiring licensure by this chapter may not bring any action or raise a counter-claim, either at law or in equity, to enforce the provisions of any contract arising from, or in any way associated with, the performance of or commitment to perform, such activity. A sworn affidavit from department staff attesting to a person's unlicensed status is admissible without further foundation as a defense in a proceeding to enforce provisions of a contract associated with activities requiring a license by this chapter.
HISTORY: 2002 Act No. 185, Section 1; 2014 Act No. 156 (H.4574), Section 3, eff April 14, 2014.
Editor's Note
Prior Laws:1983 Act No. 104, Section 5; 1988 Act No. 621, Section 1; 1993 Act No. 181, Section 898; 1976 Code Section 40-23-127.
Effect of Amendment
2014 Act No. 156, Section 3, in subsection (A), deleted text relating to the reference of reports of violations to the board.