PROPOSED RULEMAKING
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[49 PA. CODE CH. 43b]
Schedule of Civil Penalties
[29 Pa.B. 4437] The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to amend Chapter 43b (relating to Commissioner of Professional and Occupational Affairs) to read as set forth in Annex A.
Section 5(a) of the act of June 2, 1993 (P. L. 345, No. 48) (act) (63 P. S. § 2205(a)) authorizes the Commissioner, after consultation with licensing boards and commissions in the Bureau, to adopt a schedule of civil penalties for: (1) operating without a current and valid license, registration, certificate or permit; and (2) violating a licensing board or commission act or regulation relating to the conduct or operation of a business or facility licensed by a licensing board or commission.
Section 5(a) of the act further requires the Commissioner to publish in the Pennsylvania Bulletin the schedule of penalties, guidelines for imposition and procedures for appeal of the imposition of civil penalties. Accordingly, the Commissioner published a statement of policy pertaining to the amended schedule of civil penalties at 28 Pa.B. 5883 (November 28, 1998).
Section 5(a) of the act also requires the Commissioner to promulgate regulations finalizing this amended schedule of civil penalties within 2 years of the schedule being published in the Pennsylvania Bulletin. Therefore, the Commissioner has until November 28, 2000, to promulgate final-form regulations. The Commissioner intends to accomplish this mandate by promulgating the amendments in Annex A.
Prior to adopting the statement of policy, the Commissioner consulted with the applicable licensing boards, notified the various professional associations and invited comments and suggestions regarding its implementation. In addition, under the Governor's Executive Order 1996-1, the Commissioner notified the individuals and associations identified by the licensing boards and commissions of the Bureau's intent to promulgate proposed regulations and offered them the opportunity to comment on this proposal. The boards considered these comments in developing the proposed schedules.
Since its implementation, sanctions imposed for relatively minor violations have been entered more quickly than it would have taken to resolve these cases under regular disciplinary procedures. Based upon the effectiveness of the implementation of the statement of policy and upon the implementation of Chapter 43b, the Commissioner proposes these regulatory amendments finalizing the schedule of civil penalties.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on August 10, 1999, the Commissioner submitted a copy of these proposed amendments to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Professional Licensure and to the Senate Committee on Consumer Protection and Professional Licensure. In addition to submitting the proposed amendments, the Commissioner has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Commissioner in compliance with Executive Order 1982-2, ''Improving Government Regulations.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendments, it will notify the Commissioner within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendments, by the Commissioner, the General Assembly and the Governor, of objections raised.
Fiscal Impact
Professional licensing statutes require each board to be self supporting. Revenues must be generated by fees paid by licensees and must meet or exceed budgeted expenditures.
A board's disciplinary duties consist of investigating complaints, inspecting licensed facilities and meting out appropriate sanctions. Although the boards are not supported by general fund tax revenues, members of the regulated community are assessed a biennial renewal fee which finances them operations, including the disciplinary function.
Licensees are impacted individually when they are found guilty of violating a board's act and a fine is levied. Licensees who dispute charges brought against them including those filed as civil penalty citations under the act, may request a hearing before a hearing examiner or appeal a decision to the appropriate board. The more resources and time expended by personnel of the department to dispose of disciplinary cases, the greater the impact of disciplinary function upon a board's operating costs.
Paperwork Requirements
The proposed amendments will not necessitate any legal, accounting, reporting or other paperwork requirements.
Statutory Authority
The amendments are proposed under section 5(a) of the act, which gives the Commissioner the authority to adopt a schedule of civil penalties for: (1) operating without a current and valid license, registration, certification or permit; and (2) violating a licensing board or commission act or regulation relating to the conduct or operation of a business or facility licensed by a licensing board or commission.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed amendments to Commissioner Dorothy Childress, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days following the publication of the proposed amendments in the Pennsylvania Bulletin.
DOROTHY CHILDRESS,
CommissionerFiscal Note: 16-20. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS
PART I. DEPARTMENT OF STATE
Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL § 43b.7. Schedule of civil penalties--pharmacists and pharmacies.
STATE BOARD OF PHARMACY
Violation Under Title/Description Civil Penalty 49 Pa. Code Chapter 27 * * * * *
Section 27.15 Sanitary standards--
(a) and (b) Uncleanliness$250 [(c)] (b) Pharmacy not in good repair $250 [(d)] (c) Waste disposal violations $250 [(e)] (d) Prescription area not dry, well ventilated and well lighted; not free from rodents or insects $250 [(f)] (e) Plumbing not functional $250 [(g)] (f) Unauthorized items in prescription area $250 Section 27.16 Construction requirements--
(b)[(5)](4) Lack of telephone$250 [(6)] (5) Lack of required sanitary facilities $250 [(8)] (7) Television set in prescription area not intended for pharmacy instructional use $500 [(9)] (8) Drugs accessible to unauthorized persons; animals unrelated to pharmacy security in prescription area $250 * * * * *
Section 27.31 Biennial renewal--(c) practicing on a lapsed license or permit 0--4 months--$50 per month; over 4 months--8 months--$100 per month; over 9 months--12 months--$200 per month; over 1 year--formal action * * * * * § 43b.10a. Schedule of civil penalties--accountants
STATE BOARD OF ACCOUNTANCY
Violation under 63 P. S. Title/Description Civil Penalty Section 9.8b(b) Completion of continuing education hours after end of reporting period but before start of next license biennium (assumes no other continuing education violation) 1st offense--$150
2nd offense--formal actionSection 9.12(a) Unlawful use of ''certified public accountant,'' ''CPA'' or similar representation by person never licensed 1st offense--$500*
2nd offense--formal actionUnlawful use of ''certified public accountant,'' ''CPA'' or similar representation by person not currently licensed 1st offense--up to 90 days past renewal deadline--warning 90 days--180 days past renewal deadline--$500
2nd offense--formal actionSection 9.12(c) Unlawful use of ''certified public accountant,'' ''public accountant,'' ''CPA,'' ''PA''or similar representation by a firm never licensed 1st offense--$500*
2nd offense--formal actionUnlawful use of ''certified public accountant,'' ''public accountant,'' ''CPA,'' ''PA'' or similar representation by a firm not currently licensed 1st offense--up to 90 days past renewal deadline--warning
90 days--180 days past renewal deadline--$500
2nd offense--formal actionSection 9.12(j) Unlawful use of ''public accountant,'' or ''PA'' or similar representation by person never licensed 1st offense $500*
2nd offense--formal actionUnlawful use of ''public accountant,'' or ''PA'' or similar representation by person not currently licensed 1st offense--up to 90 days past renwal deadline--warning
90 days--180 days past renewal deadline--$500
2nd offense--formal actionSection 9.12(o) Unlawful representation of membership in professional society, association, or organization of CPA's or PA's by person or firm never licensed 1st offense--$250*
2nd offense--formal actionUnlawful representation of membership in professional society, association, or organization of CPA's or PA's by person or firm not currently licensed 1st offense--up to 90 days past renewal deadline--warning
90 days to 180 days past renewal deadline--$250
2nd offense--formal actionViolation under 49 Pa. Code, Chapter 11 Section 11.62(a)(2) Failure to complete 20 hours of continuing education each year (assumes no other continuing education violation) 1st offense--$150
2nd offense--formal actionSection 11.68(b) Failure to timely submit documentation of continuing education during Board audit (assumes no other continuing education violation) 1st offense--$500
2nd offense--formal action* The first offense provision does not apply to a situation involving multiple occurrences or a pattern or practice of misconduct
§ 43b.11a. Schedule of civil penalties--architects.
STATE ARCHITECTS LICENSURE BOARD Proposed Schedule
Violation Under Violation 49 Pa. Code Description Under 63 P. S. Chapter 9 Violation Penalties § 34.12(a) N/A Architect impressing his seal or knowingly permitting it to be impressed on drawings, specifications or other design documents which were not prepared by him or under his personal supervision. 1st offense--1,000
2nd offense--formal action§ 34.12(a) N/A Anyone impressing an architect's seal or knowingly permitting it to be impressed on drawings, specifications or other design documents after the architect's certificate has expired, or has been revoked, annulled or suspended. 1st offense--$1,000
2nd offense--formal action§ 34.13(h) § 9.163 Engaging in the practice of architecture as a professional association, partnership, professional corporation, or business corporation without first receiving the written approval of the Board. 1st offense--$500
2nd offense--$1,000
3rd offense--formal action§ 34.18(a) and (b) § 9.171 Use of the word ''architect'' or ''architects'' in the surname, word, or business title implying that an individual or business is engaged in the practice of architecture, without possessing current and proper licensing by the Board. 1st offense--$1,000
2nd offense--formal action§ 43b.12a. Schedule of civil penalties--auctioneers, apprentice auctioneers, auction houses and auction companies.
STATE BOARD OF AUCTIONEER EXAMINERS Proposed Schedule
Violations Violation Under Under Title 49 Description 63 P. S. Chapter 1 of Violation Penalties §§ 734.3(a) and 734.20(a)(9) N/A Auctioneer or apprentice auctioneer operating on a lapsed license in this Commonwealth. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.3(a) and 734.20(a)(9) N/A Engaging in unlicensed auctioneering activities in this Commonwealth. 1st offense--$1,000
2nd offense--formal§§ 734.9(a) and 734.20(a)(9) N/A Operating an unlicensed auction house in this Commonwealth. 1st offense-- $500
2nd offense--$1,000
3rd offense--formal§§ 734.10(a) and 734.20(a)(9) N/A Operating as an unlicensed auction company in this Commonwealth. 1st offense--$500
2nd offense--$1,000 3rd offense--formal§§ 734.9(d) and 734.20(a)(9) N/A A licensed auctioneer operating an unregistered auction house in this Commonwealth. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.10(d) and
734.20(a)(9)N/A A licensed auctioneer operating an unregistered auction company in this Commonwealth. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.9(a) and
734.20(a)(9)N/A Operating an auction house on a lapsed license in this Commonwealth. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.10(a) and 734.20(a)(9) N/A Operating an auction company on a lapsed license in this Commonwealth. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§ 734.20(a)(12) N/A Failure of an auctioneer to establish or maintain an escrow account. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.21 and 734.20(a)(9) N/A Failure of an auctioneer to immediately deposit gross auction sale proceeds into an escrow account. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.17 (a) and 734.20(a)(9) N/A Failure of an auctioneer to enter into a written contract with the owner or consignor of the property to be sold at auction prior to the auction sale. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.17(a) and 734.20(a)(9) N/A Failure of an auctioneer to keep contracts on file in the office of the auctioneer. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.16(b) and
734.20(a)(9)N/A Failure or refusal of an auctioneer to permit inspection of auction sale records at all reasonable times by BEI inspectors or investigators. 1st offense--$500
2nd offense--$1,000
3rd offense--formal§§ 734.18(a) and 734. 20(a)(9) N/A Failure of an auctioneer to display auctioneer license in the auctioneer's office. 1st offense_$250
2nd offense--$500
3rd offense--formal action§§ 734.18(b) and 734.20(a)(9) N/A Failure of an apprentice auctioneer to display the apprentice auctioneer license in the apprentice auctioneer's office. 1st offense--$250
2nd offense--$500
3rd offense--formal action§ 734.20(a)(10) §§ 1.31(c) and (d) Failure of a sponsor to either directly supervise the apprentice while the apprentice is conducting an auction or to provide for appropriate substitute supervision of the apprentice by a qualified auctioneer. 1st offense--$500
2nd offense--$1,000
3rd offense--formal action§ 734.20(a)(10) § 1.31(e) Apprentice auctioneer conducting an auction sale without direct supervision by either the sponsor or an authorized substitute sponsor. 1st offense--$500
2nd offense--$1,000
3rd offense--formal action§ 43b.13a. Schedule of civil penalties--engineers, land surveyors and geologists.
STATE REGISTRATION BOARD FOR PROFESSIONAL ENGINEERS, LAND SURVEYORS AND GEOLOGISTS
Violation Under 63 P. S. Title /Description Penalties Section 150(b) Representing himself or herself to be an engineer, land surveyor or geologist without being licensed or registered by one or more of the following: (1) Sign. 1st offense--$1,000
2nd offense--formal action(2) Advertisement. 1st offense--$1,000
2nd offense--formal action(3) Letterhead. 1st offense--$1,000
2nd offense--formal action(4) Card. 1st offense--$1,000
2nd offense--formal actionSection 151(e) Biennial renewal--Practicing on a lapsed license or registration 1st offense--Up thru 5 months--$500
6 months thru 1 year--$1,000
over 1 year--formal action
2nd offense--formal action§ 43b.14a. Schedule of civil penalties--dentists, dental hygienists and expanded function dental assistants.
STATE BOARD OF DENTISTRY
Violation under 49 Pa. Code Title/Description Civil Penalty § 33.105(b) Practicing on a Lapsed license/certificate 1st offense--
Dentists--$100/month
Dental hygienists--$50/month
Expanded function dental assistants--$25/month
2nd offense--formal action
[Pa.B. Doc. No. 99-1368. Filed for public inspection August 20, 1999, 9:00 a.m.]
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