PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[49 PA. CODE CH. 43b]

Schedule of Civil Penalties

[34 Pa.B. 5552]

   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.

Effective Date

   The proposed rulemaking will be effective upon publication of final-form rulemaking in the Pennsylvania Bulletin.

Statutory Authority

   Section 5(a) of the act of July 2, 1993 (P. L. 345, No. 48) (Act 48) (63 P. S. § 2205(a)) authorizes the Commissioner, after consultation with licensing boards and commissions in the Bureau of Professional and Occupational Affairs (Bureau), to promulgate regulations setting forth a schedule of civil penalties, guidelines for their imposition and procedures for appeal for: (1) operating without a current and valid license, registration, certificate or permit; and (2) violating an act or regulation of a licensing board or commission relating to the conduct or operation of a business or facility licensed by the board or commission.

Background and Purpose

   Act 48 authorizes agents of the Bureau to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's boards and commissions. Act 48 citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudications and orders, and consent agreements. At the same time, licensees who receive an Act 48 citation retain their due process right of appeal prior to the imposition of discipline. The use of Act 48 citations has increased steadily since 1996, when the program was first implemented, and they have become an important part of the Bureau's enforcement efforts, with approximately 30% of all sanctions imposed by the boards and commissions being accomplished through the Act 48 citation process.

   Annex A sets forth amendments to the civil penalty schedules of the State Board of Barber Examiners, the State Real Estate Commission, the State Board of Vehicle Manufacturers, Dealers and Salespersons and the State Architects Licensure Board. The proposed rulemaking was drafted following discussions with a representative of the Commissioner and the respective boards and commission at regularly scheduled public meetings.

Description of the Proposed Rulemaking

State Board of Barber Examiners

   The proposed rulemaking would amend the schedule of civil penalties of the State Board of Barber Examiners (Barber Board) in § 43b.4 (relating to schedule of civil penalties--barbers and barber shops) by increasing the amount of the civil penalties across the board. The Barber Board has participated in the Act 48 citation program from its inception in 1996 and has not increased the civil penalties since they were originally promulgated. Currently, the Barber Board has the most lenient civil penalty schedule and the Board feels that it is necessary to increase the civil penalties to improve their deterrent effects. In addition, the proposed rulemaking would increase the civil penalties for continuing violations based on the length of the violation. For example, the penalty for practicing on a lapsed or expired license would increase depending on the length of the lapse. Finally, a technical amendment is proposed to correct an error in the current schedule. The schedule cites section 8 of the act of June 19, 1931 (P. L. 589, No. 202) (63 P. S. § 558), known as the Barbers' License Law, as authority for disciplining a licensee for operating a business or facility on a lapsed or expired permit or license. The correct section is section 12(a)(2) of the Barbers' License Law (63 P. S. § 562(a)(2)). The former section relates to individual licenses to practice barbering; the latter section relates to licenses to operate shops and schools.

State Real Estate Commission

   The civil penalty schedule for the State Real Estate Commission (Commission) in § 43b.8 (relating to schedule of civil penalties--real estate and cemetery brokers, real estate schools) would be amended to add increased penalties for second offenses and continuing violations under sections 301, 604(a)(21) and 2205(b)(2) of the Real Estate Licensing and Registration Act (63 P. S. §§ 455.301, 455.604(a)(21) and 2205(b)(2)) and § 35.242(a) (relating to office of broker or cemetery broker). These amendments are also intended to take further advantage of the efficiencies of the Act 48 citation process by making additional violations subject to citations. Specifically, the Commission proposes the addition of civil penalties for violations of §§ 35.286(a)(1), 35.292(a)(6), 35.305(b) and 35.334. Also, the proposed rulemaking would increase certain existing civil penalties to enhance their deterrent effect. Finally, the civil penalty schedule would be amended to make it consistent with recent amendments to §§ 35.304 and 35.305 (relating to disclosure of licensure when advertising own real estate; and business name on advertisements).

State Board of Vehicle Manufacturers, Dealers and Salespersons

   The proposed rulemaking would amend the civil penalty schedule in § 43b.9 (relating to schedule of civil penalties--vehicle manufacturers, dealers and salespersons) to add civil penalties for additional violations of the Board of Vehicles Act (act). Specifically, the proposed rulemaking would add civil penalties to its schedule for unlicensed practice violations by dealers, auctions, manufacturers, distributors, factory representatives and distributor representatives under section 5 of the act (63 P. S. § 818.5). Additionally, owing to an increasing number of complaints involving activities at vehicle auctions in this Commonwealth, the proposed rulemaking seeks to take advantage of the efficiencies of the citation process for violations of section 19(29), (30) and (38) of the act (63 P. S. § 818.19(29), (30) and (38)) regarding vehicle auctions in section.

State Architects Licensure Board

   The civil penalty schedule for the State Architects Licensure Board (Architects Board) in § 43b.11a (relating to schedule of civil penalties--architects) would be amended to provide a new civil penalty for delinquent payment of the renewal fee for registered architecture firms. This fee was recently promulgated by the Architects Board and is being assessed biennially. The civil penalty schedule also provides for increased penalties based on continuing violations under this provision. Amendments would also be made to the schedule to make it consistent with recent amendments to sections 13 and 18 of the Architects Licensure Law (63 P. S. §§ 34.13 and 34.18) and to provide for increased penalties for practicing without a current license based on the length of the violation.

Fiscal Impact and Paperwork Requirements

   The proposed rulemaking would have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed rulemaking would reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudica- tions/orders for those violations subject to the Act 48 citation process.

Sunset Date

   Professional licensure statutes require each board and commission to be self-supporting. Therefore, boards and commissions continually monitor the cost effectiveness of regulations affecting their operations. As a result, no sunset date has been assigned.

Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on September 29, 2004, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.

   Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commissioner, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comment

   Interested persons are invited to submit written comments, suggestions or objections regarding this proposed rulemaking to Basil L. Merenda, P. O. Box 2649, Harrisburg, PA 17105-2649 within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin.

BASIL L. MERENDA,   
Commissioner

   Fiscal Note: 16-32. 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.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] this chapter, 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.4. Schedule of civil penalties--barbers and barber shops.

STATE BOARD OF BARBER EXAMINERS

Violation under 63 P. S.	Title/Description	Civil Penalty
Section 551	Practicing without a license	1st offense--$[250] 500 2nd offense--Formal action
Section 557	Availability of current license on premises	1st offense--$[50] 150 2nd offense--$[250] 500
Section 558	Practicing on a lapsed or expired license	1st offense--Up to 90 days--Warning; 90 days [or more] to 1 year--$[100] 250; 1 year to 2 years--$500; over 2 years-- $1,000 2nd offense--Formal action
Section [558] 562(a)(2)	Operating a business or facility on a lapsed or expired permit or license	1st offense--Up to 90 days--Warning; 90 days [or more] to 1 year--$250; from 1 year to 2 years--$500; over 2 years-- $1,000 2nd offense--Formal action
Section 559	Failure to employ licensed persons	1st offense--$[250] 500 for each individual unlicensed barber 2nd offense--Formal action
Section 560	Opening shop for business before shop inspected and approved	1st offense--$[100] 200 2nd offense--Formal action
Section 560	Failure to file application when taking over as owner of existing shop	1st offense--$[100] 500 2nd offense--Formal action
Section 562	Operating an establishment without supervision of manager barber	1st offense--$[100] 250 2nd offense--Formal action
Section 563	Operating a business or facility without a permit or license	1st offense--$[250] 500 2nd offense--Formal action
Section 563(a)	Licensee practicing in place other than licensed shop	1st offense--$[150] 500 2nd offense--Formal action

Violation Under 49 Pa. Code Chapter 3	Title/Description	Civil Penalty
Section 3.51(a)	Failure to obtain new shop license when shop moves	1st offense--$[100] 500 2nd offense--[$250] Formal action
Section 3.51(b)	Failure to register [tradename] trade name	1st offense--$[50] 100 2nd offense--Formal action
Section 3.54	Failure to meet minimum equipment requirements	1st offense--$[50] 100 2nd offense--Formal action
Section 3.55	Failure to meet minimum maintenance and sanitation requirements	1st offense--$[50] 100 2nd offense--Formal action
Section 3.85	School equipment does not meet requirements	1st offense--$[50] 100 2nd offense--[$250] Formal action
Section 3.86	School maintenance and [sterilization] sanitation requirements not met	1st offense--$[50] 250 2nd offense--[$100 per requirement] Formal action
Section 3.89	School advertising requirements not met	1st offense--$[50] 250 2nd offense--[$250] Formal action

§ 43b.8. Schedule of civil penalties--real estate and cemetery brokers, real estate schools.

STATE REAL ESTATE COMMISSION

Violation under 63 P. S.	Title/Description	Civil Penalty
Section 455.301	Acting in capacity of cemetery broker or cemetery salesperson without a license	1st offense--$250 2nd offense--$500
*      *      *      *      *
Section 455.604(a)(8)	Placing a ''for sale'' or ''for rent'' sign or advertising property without the written consent of the owner	1st offense--$[100] 250 2nd offense--$[250] 500
*      *      *      *      *
Section 455.604(a)(21)	Failure of licensee to have current license when performing licensed activity	1st offense--$250 per month up to $1,000 2nd offense--Formal action
*      *      *      *      *
Section 2205(b)(2)	Aiding and abetting cemetery or real estate sales activities by unlicensed individuals	1st offense--$250 per individual 2nd offense--$500 per individual

Violation Under 49 Pa. Code Chapter 35	Title/Description	Civil Penalty
Section 35.242(a)	Failure of broker or cemetery broker to devote office to transaction of real estate business in privacy	1st offense--$[100] 125 2nd offense--$250
Section 35.242(b)	Failure of broker or cemetery broker to maintain separate entrance to office located in private residence	1st offense--$[50] 125 2nd offense--$[100] 250
*      *      *      *      *
Section 35.245(a)	Failure of broker, cemetery broker or rental listing referral agent to conspicuously display current license at main office	1st offense--$[100] 125 2nd offense--$250
*      *      *      *      *
Section 35.245(c)	Failure of broker or cemetery broker to conspicuously display current branch office license at branch office	1st offense--$[100] 125 2nd offense--$250
Section 35.245(d)	Failure of broker or cemetery broker to maintain at main office list of licensed [employes] employees and branch offices at which [employes] employees work	1st offense--$[100] 125 2nd offense--$250
*      *      *      *      *
Section 35.286(a)	Failure of broker to retain a copy of the written estimate of reasonably foreseeable expenses required under § 35.334 (relating to statements of estimated cost and return)	1st offense--$250 2nd offense--$500
Section 35.286(a)(1)	Failure of broker, associate broker or salesperson to retain a copy of the acknowledgement portion of the Consumer Notice	1st offense--$250 2nd offense--$500
*      *      *      *      *
Section 35.292(a)(6)	Failure of broker, associate broker or salesperson to provide a copy of the Consumer Notice as required under 63 P. S. § 455.608 regarding information to be given at initial interview	1st offense--$250 2nd offense--$500
*      *      *      *      *
Section 35.304	Failure of a [broker] licensee who sells or leases his own real estate to disclose in ads for the property that he is a [real estate broker] licensee	1st offense--$250 2nd offense--$500
*      *      *      *      *
Section 35.305(b)	Advertising or using a nickname that has not been registered with the Commission	1st offense--$250 2nd offense--$500
Section 35.305[(b)](c)	Failure of [associate broker, salesperson, associate cemetery broker or cemetery salesperson to include employing broker's name and telephone number on advertisement] salesperson or associate broker to include the business name and telephone number of the broker in at least equal size on an advertisement	1st offense--$[500]250 2nd offense--$[750]500
Section 35.334	Failure of broker to provide a written estimate of reasonably foreseeable expenses	1st offense--$250 2nd offense--$500
Section 35.361(a)	Failure of real estate school to prominently display certificate of approval at main location and copy at each satellite location	1st offense--$[100] 125 2nd offense--$250
*      *      *      *      *
Section 35.361(c)	Failure of real estate school to prominently display school director's letter of approval at main location and copy at each satellite location	1st offense--$[100] 125 2nd offense--$250
Section 35.361(d)	Failure of real estate school to prominently display alphabetical list of courses and instructors at each school location	1st offense--$[100] 125 2nd offense--$250
Section 35.361(e)	Failure of real estate school to prominently display a list of satellite locations at main location	1st offense--$[100] 125 2nd offense--$250

§ 43b.9. Schedule of civil penalties--vehicle manufacturers, dealers and salespersons.

STATE BOARD OF VEHICLE MANUFACTURERS, DEALERS AND SALESPERSONS

Violation under 63 P. S.	Title/Description	Civil Penalty
Section 818.5(a)	Person or entity engaging in business of vehicle dealer, auction, manufacturer or distributor without license or acting as broker	Each offense--$1,000
Section 818.5(a)	Person engaging in business as a factory representative or distributor representative without a license	1st offense--$100 2nd offense--$500 3rd offense--$1,000
*      *      *      *      *
Section 818.5(c)	Licensed salesperson working as salesperson for dealership other than for whom salesperson is licensed	1st offense--$100 2nd offense--$500 3rd offense--Formal action
*      *      *      *      *
Section 818.19(29)	Wholesale auction permitting unlicensed or revoked or currently suspended dealer or vehicle business to buy, sell or represent vehicle at auction	1st offense--$250 2nd offense--$500 3rd offense--$1,000 Subsequent offense-- Formal action
Section 818.19(30)	Dealer permitting revoked or currently suspended salesperson to sell, represent or purchase vehicle at auction	1st offense--$500 2nd offense--$1000 3rd offense-- Formal action
*      *      *      *      *
Sections 818.5(f)(5) and (g)(1) and 818.19(38)	Person with revoked or currently suspended dealer or salesperson license physically present during auctioning of vehicles	Each offense $1,000

§ 43b.11a. Schedule of civil penalties--architects.

STATE ARCHITECTS LICENSURE BOARD

Violation under 63 P. S.	Violation under 49 Pa. Code Chapter 9	Title/Description	Civil Penalty
*      *      *      *      *
§ 34.13(j)	§ 9.3	Delinquent payment of annual renewal fee for registered architecture firms ($100 assessed biennially).	1st offense--0 to 2 years--$500; 2nd offense--2 to 4 years--$1,000; 3rd offense--over 4 years-- Formal action
§ 34.13[(h)](j)	§ 9.163	Engaging in the practice of architecture as a professional association, partnership, professional corporation, limited liability company, limited liability partnership 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.] An individual or business engaging in the practice of architecture or offering to engage in the practice of architecture in this Commonwealth, or using any title, sign, card or device implying that the individual or business is competent to engage in the practice of architecture during a period when the individual's or business's license is not current.	1st offense--[$1,000] 0 to 2 years--$500 2nd offense--[formal action] 2 to 4 years--$1,000 3rd offense--over 4 years-- Formal action

[Pa.B. Doc. No. 04-1850. Filed for public inspection October 8, 2004, 9:00 a.m.]

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