RULES AND REGULATIONS
BUREAU OF PROFESSIONAL AND
OCCUPATIONAL AFFAIRS
[49 PA. CODE CH. 43b]
Schedule of Civil Penalties
[31 Pa.B. 1227] The Commissioner of Professional and Occupational Affairs (Commissioner) amends Chapter 43b (relating to Commissioner of Professional and Occupational Affairs) to read as set forth in Annex A.
The amendments are made under the authority of section 5(a) of the act of June 2, 1993 (P. L. 345, No. 48) (63 P. S. § 2205(a)).
Notice of proposed rulemaking was published at 29 Pa.B. 4437 (August 21, 1999) following which the Commissioner accepted public comment for 30 days. Comments were received from the Pennsylvania Dental Association. Suggestions and comments were also submitted by the Independent Regulatory Review Commission (IRRC) and the House Committee on Professional Licensure (House Committee).
Comments submitted by IRRC and the House Committee related to the clarity and consistency of the regulations. First, IRRC suggested that § 43b.3 (relating to procedures) be amended to reflect the additional schedules of civil penalties proposed in this regulation. Both the House Committee and IRRC commented on an inconsistency between § 43b.7 (relating to schedule of civil penalties--pharmacists and pharmacies). In particular, the description of violations in proposed rulemaking was not consistent with the existing subsections of the State Board of Pharmacy regulations. IRRC also commented that the penalty column under § 43b.12a (relating to schedule of civil penalties--auctioneers, apprentice auctioneers, auction houses and auction companies) was missing the word ''action'' after the word ''formal.'' In addition, IRRC suggested that § 43b.13a (relating to schedule of civil penalties--engineers, land surveyors and geologists) be consolidated and clearly establish that the violation is for representing oneself to be an engineer, land surveyor or geologist on a sign, advertisement, letterhead or card, without being licensed or registered. The Commissioner has implemented all of these suggestions.
The House Committee commented that the civil penalty for practicing on a lapsed license is not uniform among the various licensing boards. The House Committee requested an explanation as to why the Boards would assess different penalties for the same offense. The explanation for this is that each board has independent authority to implement its own schedule of penalties, and therefore, approved its own schedule of civil penalties. The Commissioner perceives no special need for uniformity among all licensing boards in the Bureau of Professional and Occupational Affairs (Bureau) for operating without a personal or facility license and notes the varying degrees of harm to the public.
The Pennsylvania Dental Association (PDA) commented on the proposed civil penalty for dentists, dental hygienists and expanded function dental assistants for practicing on a lapsed license/certificate, expressing concern that dentists who have made a good faith effort to comply with proposed rulemaking, but are denied a license on the grounds of noncompliance with these proposed rulemaking, would be subject to penalties. The State Board of Dentistry (Board) noted that section 10.1 of the Dental Law (63 P. S. § 129.1), authorizes the Board to levy a civil penalty of up to $1,000 on any current licensee who practices without being properly licensed or certified to do so. As such, licensees are already subject to a $1,000 civil penalty. Enforcement of these regulations for practicing on a lapsed license, which also constitutes unlicensed practice, will not be instituted until they are published as final. Disciplinary action will be taken based upon noncompliance with regulations or section 10.1 of the Dental Law.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Bureau submitted a copy of the notice of proposed rulemaking, published at 29 Pa.B. 4437 to IRRC and the Chairpersons of the House Professional Licensure Committee and the Senate Consumer Protection and Professional Licensure Committee for review and comment.
In compliance with section 5(c) of the Regulatory Review Act, the Bureau also provided IRRC and the Committees with copies of the comments received. In preparing these final-form regulations, the Bureau has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), these final-form regulations were approved by the House Committee on October 3, 2000, and approved by the Senate Committee on October 9, 2000. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 19, 2000, and approved the final-form regulations.
Fiscal Impact
Professional licensing statutes require each board and commission 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 a board's operations, including the disciplinary function.
Licensees are impacted individually when they are found guilty of violating a board's act or regulations and a fine is levied. A licensee who disputes charges brought against him, including those filed as civil penalty citations under the act of June 2, 1993 (P. L. 345, No. 48) 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 the disciplinary function upon a board's operating costs.
Paperwork Requirements
The amendments will not necessitate any legal, accounting, reporting or other paperwork requirements.
Statutory Authority
The amendments are authorized under section 5(a) of the act of June 2, 1993, which provides the Commissioner with authority to promulgate regulations adopting a schedule of civil penalties, after consultation with the licensing boards and commissions, 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
Individuals who desire information are invited to submit inquiries to Commissioner Dorothy Childress, P. O. Box 2649, Harrisburg, PA 17105-2649.
Findings
The Bureau finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and the regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These amendments do not enlarge the purpose of proposed rulemaking published at 29 Pa.B. 4437.
(4) These amendments are necessary and appropriate for administration and enforcement of the authorizing acts identified in this Preamble.
Order
The Commissioner of the Bureau orders that:
(a) The regulations of the Commissioner, 49 Pa. Code Chapter 43b, are amended by amending §§ 43b.3 and 43b.7; deleting Statements of Policy in §§ 43b.10--43b.14; and adding §§ 43b.10a--43b.14a to read as set forth in Annex A with ellipses referring to the existing text of the regulations.
(b) The Commissioner shall submit this order and Annex A to the Office of General Counsel and to the Office of Attorney General as required by law.
(c) The Commissioner shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(d) This order shall become effective immediately upon publication in the Pennsylvania Bulletin.
DOROTHY CHILDRESS,
CommissionerFiscal Note: Fiscal Note 16-20 remains valid for the final adoption of the subject regulations.
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.3. Procedures.
* * * * * (b) Citations.
(1) If an inspection reveals a violation of a statute or a regulation for which a civil penalty has been established under the schedules in §§ 43b.4--43b.14a, the authorized agent may prepare a citation indicating the violations found and the penalties imposed. A copy of the citation will be provided to the respondent.
* * * * * § 43b.7. Schedule of civil penalties--pharmacists and pharmacies.
Violation under 49 Pa. Code Chapter 27 Title/Description Civil Penalty * * * * *
Section 27.15 Sanitary standards (a) Pharmacy not in good repair or not in clean and orderly condition. $250 (b) Violation of health and sanitation statutes of the Commonwealth and of the municipality and county where pharmacy is located. $250 (c) Waste disposal violations $250 (d) Prescription area not dry, well ventilated and well lighted; not free from rodents or insects $250 (e) Plumbing not functional $250 (f) Unauthorized items in prescription area $250 Section 27.16 Construction requirements-- (b)(4) Lack of telephone $250 (5) Lack of required sanitary facilities $250 (7) Television set in prescription area not intended for pharmacy instructional use $500 (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.10. (Reserved).
§ 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 action Section 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 to 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 to 180 days past renewal deadline--$500 2nd offense--formal action Section 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 renewal deadline-- warning;
90 days to 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
Title/Description
Civil PenaltySection 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.11. (Reserved).
§ 43b.11a. Schedule of civil penalties--architects.
STATE ARCHITECTS LICENSURE BOARD
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.12. (Reserved).
§ 43b.12a. Schedule of civil penalties--auctioneers, apprentice auctioneers, auction houses and auction companies.
STATE BOARD OF AUCTIONEER EXAMINERS
Violations Violation Under Under Title 49 Description 63 P. S. Chapter 1 of Violation Penalties Sections 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 actionSections 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 actionSections 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 actionSections 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 actionSections 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 actionSections 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 actionSections 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 actionSections 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 actionSection 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 actionSections 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 actionSections 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 actionSections 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 actionSections 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 3rd offense--formal action BEI inspectors or investigators. 1st offense--$500
2nd offense--$1,000
3rd offense--formal actionSections 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 actionSections 734.18(b) and 734.20(a)(9) N/A Failure of an apprentice auctioneer to display the apprentice auctioneer license in the apprentice 3rd offense--formal action auctioneer's office. 1st offense--$250
2nd offense--$500
3rd offense--formal actionSection 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 actionSections 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.13. (Reserved).
§ 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 oneself as an engineer, land surveyor or geologist on sign, advertisement, letterhead or card, without being licensed or registered 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 action2nd offense--formal action § 43b.14. (Reserved).
§ 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. 01-347. Filed for public inspection March 2, 2001, 9:00 a.m.]
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