PROPOSED RULEMAKING
BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
[49 PA. CODE CH. 43b]
Schedule of Civil Penalties
[27 Pa.B. 2745] The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to adopt 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 schedule of civil penalties at 25 Pa.B. 4527 (October 21, 1995).
Section 5(a) of the act also requires the Commissioner, by October 21, 1997, to promulgate regulations finalizing a schedule of civil penalties, guidelines and procedures. The Commissioner intends to accomplish this mandate by promulgating the regulations 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 and commission considered these comments in developing the proposed schedules.
Since its implementation, civil penalty citations have been issued in approximately 373 cases. The sanctions imposed on these relatively minor violations were entered more quickly than it would have taken to resolve the same number of cases under regular disciplinary procedures.
Based upon the effectiveness of the implementation of the statement of policy, the Commissioner proposes these regulatory amendments finalizing the schedule of civil penalties, guidelines and procedures.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Commissioner submitted a copy of these proposed regulations on May 23, 1997, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House Committee on Professional Licensure and the Senate Committee on Consumer Protection and Professional Licensure. In addition to submitting the proposed regulations, 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.
If IRRC has objections to any portion of the proposed regulations, it will notify the Commissioner within 30 days of the close of the public comment 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 regulations, by the Commissioner, the General Assembly and the Governor of objections raised.
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. 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 the disciplinary function upon a board's operating costs.
Paperwork Requirements
The proposed regulations will not necessitate any legal, accounting, reporting or other paperwork requirements.
Statutory Authority
The regulations are proposed under the authority of 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 regulations to Commissioner Dorothy Childress, P. O. Box 2649, Harrisburg, PA 17105-2649, within 30 days following the publication of the proposed regulations in the Pennsylvania Bulletin.
DOROTHY CHILDRESS,
CommissionerFiscal Note: 16-15. 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 §§ 43a.1--43a.11. (Reserved).
(Editor's Note: These proposed regulations replace the Statement of Policy published at 49 Pa. Code Chapter 43a, pages 43a-1--43a-16 (serial page nos. (201947)--(214490)).
CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL § 43b.1. Purpose.
The purpose of this chapter is to adopt a schedule of civil penalties, procedures for their imposition and procedures for appeal for persons operating without a current, registered, unsuspended and unrevoked license, registration, certificate or permit. The schedule of civil penalties also includes penalties imposed for violating provisions of statutes and regulations of the licensing boards and relating to the conduct or operation of a business or facility as licensed by a licensing board in the Bureau.
§ 43b.2. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Act--The act of July 2, 1993 (P. L. 345, No. 48) (63 P. S. §§ 2201--2207).
Authorized agent--An individual authorized by the Bureau to issue citations in accordance with the act.
Bureau--The Bureau of Professional and Occupational Affairs under the Commissioner within the Department of State.
Commissioner--The Commissioner of Professional and Occupational Affairs.
§ 43b.3. Procedures.
(a) Inspections/investigations. Authorized agents may conduct inspections and investigations for the purpose of ascertaining compliance with statutory provisions and regulations of licensing boards and commissions relating to required licensure and the conduct or operation of a business or facility.
(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 following schedule, 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.
(2) The citation shall be made on a form approved by the Bureau.
(3) Within 10 days of the date of the issuance of the citation, the respondent shall enter one of the following:
(i) A plea to admit to the violation and remit payment of the civil penalty to the Bureau.
(ii) A plea to deny the violation and request a hearing to contest the imposition of a civil penalty.
(4) Failure to respond to the citation in the manner specified in paragraph (3) within 10 days will result in the entry of a default judgment against the respondent for the full amount of the civil penalty and may result in additional disciplinary action.
(5) The civil penalties shall be paid by certified check or cashier's check or money order and made payable to the ''Commonwealth of Pennsylvania,'' and mailed to: Commonwealth of Pennsylvania, Department of State, Complaints Office--Citations, Post Office Box 2649, Harrisburg, Pennsylvania 17105-2649.
(c) Hearings.
(1) Hearings shall be conducted by a hearing examiner in compliance with 2 Pa.C.S. §§ 501--508 and 701--704 (relating to Administrative Agency Law).
(2) If a violation is found, the hearing examiner shall impose the full amount of the civil penalty as charged in the citation and as authorized by the schedules in this chapter.
(d) Appeals. A decision by a hearing examiner may be appealed by any party by filing an application for review with the appropriate licensing board within 20 days of the mailing date of the order. An application for review shall set forth with specificity the grounds for appeal. The board will review the record established before the hearing examiner and in its discretion receive additional evidence.
(e) Miscellaneous. This section supplements 1 Pa. Code Part II (relating to general rules of administrative practice and procedures.)
§ 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
2nd offense--Formal actionSection 557 Availability of current license on premises 1st offense--$50
2nd offense--$250Section 558 Practicing on lapsed or expired license 1st offense--Up to 90 days--Warning;
90 days or more--$100
2nd offense--Formal actionSection 558 Operating a business or facility on a lapsed or expired permit or license 1st offense--Up to 90 days--Warning;
90 days or more--$250
2nd offense--Formal actionSection 559 Failure to employ licensed persons 1st offense--$250 for each individual unlicensed barber
2nd offense--Formal actionSection 560 Opening shop for business before shop inspected and approved 1st offense--$100
2nd offense--Formal actionSection 560 Failure to file application when taking over as owner of existing shop 1st offense--$100
2nd offense--Formal actionSection 562 Operating an establishment without supervision of manager barber 1st offense--$100
2nd offense--Formal actionSection 563 Operating a business or facility without a permit or license 1st offense--$250
2nd offense--Formal actionSection 563(a) Licensee practicing in place other than licensed shop 1st offense--$150
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
2nd offense--$250Section 3.51(b) Failure to register tradename 1st offense--$50
2nd offense--Formal actionSection 3.54 Failure to meet minimum equipment requirements 1st offense--$50
2nd offense--Formal actionSection 3.55 Failure to meet minimum maintenance requirements 1st offense--$50
2nd offense--Formal actionSection 3.85 School equipment does not meet requirements 1st offense--$50
2nd offense--$250Section 3.86 School maintenance and sterilization requirements not met 1st offense--$50
2nd offense--$100 per requirementSection 3.89 School advertising requirements not met 1st offense--$50
2nd offense--$250§ 43b.5. Schedule of civil penalties--cosmetologists, manicurists, cosmeticians, shops.
STATE BOARD OF COSMETOLOGY
Violation Under 63 P. S. Title/Description Civil Penalty Section 508 Practicing without a license 1st offense--$500
2nd offense--Formal actionSection 508 Maintaining an unlicensed shop 1st offense--$500
2nd offense--Formal actionSection 514 Practice in place other than licensed shop 1st offense--$500
2nd offense--Formal actionSection 519(a) Owner employing unlicensed employes 1st offense--$500 for each unlicensed individual
2nd offense--Formal actionSection 524 Availability of current licenses and permits on the premises 1st offense--$100
2nd offense--$250
Violation Under 49 Pa. Code Chapter 7 Title/Description Civil Penalty Section 7.43 Practice on lapsed license 1st offense--Up to 90 days--Warning;
90 days or more--$250
2nd offense--Formal actionSection 7.62 Operating without manager 1st offense--$100
2nd offense--$250Sections 7.64(a) Manager employing unlicensed persons 1st offense--$500 for each unlicensed individual
2nd offense--Formal actionSections 7.71--7.79 Physical requirements for beauty shop 1st offense--$50 for each violation
2nd offense--$100 for each violationSection 7.82 Failure to maintain record of services rendered outside a shop 1st offense--$50
2nd offense--$250Section 7.92 Failure to sterilize equipment 1st offense--$100
2nd offense--$250Section 7.93 Unsanitary use of towels 1st offense--$100
2nd offense--$250Section 7.94 Unsanitary use of supplies 1st offense--$100
2nd offense--$250Section 7.101 Electrical appliances not properly installed/grounded 1st offense--$50
2nd offense--$250Section 7.114 School equipment and supplies not sufficient for student enrollment $50/each item missing Section 7.117 Failure to employ supervisor 1st offense--$500
2nd offense--Formal actionSection 7.118(a) Unlicensed teachers 1st offense--$500
2nd offense--Formal actionSection 7.118(b) Availability of instructor license on the premises 1st offense--$100
2nd offense--$250Section 7.118(c) Failure to employ at least one full time instructor 1st offense--$100
2nd offense--$250Section 7.118(d) Allowing student-teacher ratio to exceed 25:1 1st offense--$100
2nd offense--$250Section 7.119 Failure to maintain student records 1st offense--$250
2nd offense--Formal actionSection 7.119a Failure to obtain notarized transcript; failure to obtain verification from other state 1st offense--$50
2nd offense--$250Section 7.120 Work done by students on public; failure to post notices; failure to post sign 1st offense--$100
2nd offense--$250Section 7.121 Failure to advertise licensee name or student work 1st offense--$100
2nd offense--$250Section 7.134 Apprentice reports--failure to submit to board 1st offense--$100
2nd offense--$250§ 43b.6. Schedule of civil penalties--funeral directors and funeral establishments.
STATE BOARD OF FUNERAL DIRECTORS
Violation Under 63 P. S. Title/Description Civil Penalty Section 479.6 Failure to display licenses conspicuously 1st offense--$50
2nd offense--$250Section 479.13 Practice without license Any offense--$1,000
Violation Under 49 Pa. Code Chapter 13 Title/Description Civil Penalty Section 13.83
Section 13.84
Section 13.194Requirements for advertising of name of licensee 1st offense--$100
2nd offense--$250
Section 13.91 Operating funeral establishment without Board approval Any offense--$1,000 Section 13.171 Use of preparation room for purposes other than embalming or caring for remains 1st offense--$100
2nd offense--Formal actionSection 13.174 Preparation room facility and equipment requirements 1st offense--$100 per violation
2nd offense--$250 per violationSection 13.182 Improper disposal of waste products including biohazardous waste 1st offense--$100
2nd offense--$500Section 13.193 Advertising name of permanent supervisor 1st offense--$100
2nd offense--$250Section 13.224 Failure to comply with reporting requirements for prepaid burial contracts 1st offense--$100
2nd offense--Formal actionSection 13.225 Failure to file affidavit for prepaid burial account 1st offense--$100
2nd offense--Formal actionSection 13.231 Practicing on a lapsed license Up to 60 days--1st offense--Warning
60 days or more--$500
2nd offense--Formal action§43b.7. Schedule of civil penalties--pharmacists and pharmacies.
STATE BOARD OF PHARMACY
Violation Under 49 Pa. Code Chapter 27 Title/Description Civil Penalty Section 27.11 Pharmacy Permit--
(a) Lack of permit showing accurate and current information as to name and address of pharmacy and name of pharmacist manager$100 (b) Display, advertise or use a name other than registered name 1st offense--$100
2nd offense--$100(g) Failure to notify Board of change in pharmacist manager or operation of pharmacy without pharmacist manager. 1st offense--$50 per month or part of month;
Formal action if no compliance within 60 days after receiving citation
2nd offense--same as 1st offenseSection 27.14 Supplies--
(b) Expired drugs1st offense--Under 1 year old--$250
1st offense--Over 1 year old--$500
2nd offense--$1,000(c) Failure to maintain equipment and miscellaneous supplies $100 each Section 27.15 Sanitary standards--
(a) and (b) Uncleanliness$250 (c) Pharmacy not in good repair $250 (d) Waste disposal violations $250 (e) Prescription area not dry, well ventilated and well lighted; not free from rodents or insects $250 (f) Plumbing not functional $250 (g) Unauthorized items in prescription area $250 Section 27.16 Construction requirements--
(b)(5) Lack of telephone$250 (6) Lack of required sanitary facilities $250 (8) Television set in prescription area not intended for pharmacy instructional use $500 (9) Drugs accessible to unauthorized persons; animals unrelated to pharmacy security in prescription area $250 Section 27.18 Standards of practice--
(a) Unsuitable containers$100 (b) Lack of required information on prescriptions $100 (d) Lack of required information on container labels $100
Violation Under 28 Pa. Code Chapter 25 Title/Description Civil Penalty Section 25.55(d) Improper generic substitution Five to nine $250 10 or more $500 Section 25.55(e) Failure to refill prescription with the identical product without authorization from prescriber and patient $100 Section 25.56(a) Improper filing of Schedule II prescriptions $100 Section 25.56(b) Improper filing of Schedule III, IV, V prescriptions $100 Section 25.63(b) Inadequate security for controlled substances $250 Section 25.92 Lack of lot numbers required on stock items $100 Section 25.94 Lack of expiration date on label of dispensed drugs of less than 1 year's potency. $100 § 43b.10. 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 Section 455.601(a) Failure of licensee to notify Commission of change of location of office of broker or cemetery broker within 10 days 1st offense--$125
2nd offense--$250Section 455.601(a) Failure of broker or cemetery broker to maintain sign with licensed name outside office 1st offense--$250
2nd offense--$500Section 455.603 Failure of licensee to notify Commission of change of employing broker within 10 days 1st offense--$125
2nd offense--$250Section 455.604(a)(4) Use of any trade name or insignia or membership in any real estate association or organization of which the licensee is not a member 1st offense--$250
2nd offense--$500Section 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
2nd offense--$250Section 455.604(a)(16) Failure to exercise adequate supervision of licensed salesperson or associate broker (when subordinate violates § 455.601(a), 455.603 or 455.604(a)(21)) Same as penalty for underlying offense by subordinate Section 455.604(a)(21) Failure of licensee to have current license when performing licensed activity 1st offense--$250 Section 455.604(a)(26) Failure to include right-of-cancellation information in a time share or campground membership 1st offense--$500
2nd offense--$1,000Section 2205(b)(2) Aiding and abetting cemetery sales activities by unlicensed individuals 1st offense--$250 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 Section 35.242(b) Failure of broker or cemetery broker to maintain separate entrance to office located in private residence 1st offense--$50
2nd offense--$100Section 35.242(c) Failure of broker or cemetery broker to display business name prominently and in permanent fashion outside office 1st offense--$250
2nd offense--$500Section 35.243(a) Failure of broker or cemetery broker to obtain license before opening branch office 1st offense--$250
2nd offense--$500Section 35.245(a) Failure of broker, cemetery broker or rental listing referral agent to conspicuously display current license at main office 1st offense--$100
2nd offense--$250Section 35.245(b) Failure of associate broker, salesperson, associate cemetery broker or cemetery salesperson to conspicuously display current license at office out of which licensee works 1st offense--$100
2nd offense--$250Section 35.245(c) Failure of broker or cemetery broker to conspicuously display current branch office license at branch office 1st offense--$100
2nd offense--$250Section 35.245(d) Failure of broker or cemetery broker to maintain at main office list of licensed employes and branch offices at which employes work 1st offense--$100
2nd offense--$250Section 35.285 Failure to provide Commission or its representative with information regarding a franchisor, network or other parent real estate company with which the licensee is or may become affiliated 1st offense--$250
2nd offense--$500Section 35.286(b) Failure of a licensed entity other than an individual to produce its corporate, partnership or association records for examination by the Commission or its authorized representative 1st offense--$250
2nd offense--$500Section 35.290(b) Failure of a licensee to notify the Commission of disciplinary action taken against the licensee by the real estate licensing authority of another jurisdiction within 30 days of receiving notice of the disciplinary action 1st offense--$500
2nd offense--$1,000Section 35.301(a) Advertising the sale or lease of real estate without the authority of the seller or lessor or its agent 1st offense--$250
2nd offense--$500Section 35.301(b) Publishing information about a rental property if the lessor or property manager expressly stated that the property was not to be included in lists prepared by rental listing referral agents 1st offense--$250
2nd offense--$500Section 35.304 Failure of a broker who sells or leases his own real estate to disclose in ads for the property that he is a real estate broker 1st offense--$250
2nd offense--$500Section 35.305(a) Failure of broker, cemetery broker or rental listing referral agent to advertise or hold himself out to public under business name designated on license 1st offense--$250
2nd offense--$500Section 35.305(b) Failure of associate broker, salesperson, associate cemetery broker or cemetery salesperson to include employing broker's name and telephone number on advertisement 1st offense--$500
2nd offense--$750Section 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
2nd offense--$250Section 35.361(b) Failure of real estate school to prominently display school's approved name outside each school location 1st offense--$250
2nd offense--$500Section 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
2nd offense--$250Section 35.361(d) Failure of real estate school to prominently display alphabetical list of courses and instructors at each school location 1st offense--$100
2nd offense--$250Section 35.361(e) Failure of real estate school to prominently display a list of satellite locations at main location 1st offense--$100
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. §818 Title/Description Civil Penalty Section 818.5(a) Individual working as unlicensed salesperson for dealership 1st offense--$100
2nd offense--$500
3rd offense--Formal actionSection 818.5(d) Failure to display license in principal office 1st offense--$100
2nd offense--$500
3rd offense--Formal actionSection 818.5(h) Vehicle auction not posting list of revoked/suspended licensees 1st offense--$250
2nd offense--$500
3rd offense--Formal actionSection 818.19(15) Licensed dealer employing unlicensed salesperson 1st offense--$500
2nd offense--$1,000
3rd offense--Formal actionSections 818.5(a) and 818.19(27) Licensed dealer operating an unlicensed branch lot 1st offense--$1,000
2nd offense--Formal actionSection 818.19(34) Licensed dealer conducting its business under any name other than its licensed name 1st offense--$250
2nd offense--$500
3rd offense--Formal actionSection 818.19(37) Licensed dealer failing to produce records to an authorized agent of the Board 1st offense--$500
2nd offense--$1,000
3rd offense--Formal action
Violation under 49 Pa. Code Chapter 19 Title/Description Civil Penalty Section 19.17 Broker or dealer business identity combined with other businesses 1st offense--$100
2nd offense--$500Section 19.18(a)(1) Dealer does not have permanent enclosed building 1st offense--$100
2nd offense--$500Section 19.18(a)(2) Dealership does not have private office 1st offense--$100
2nd offense--$500Section 19.18(a)(3)(i) Dealer display area for five vehicles or 5,000 square feet 1st offense--$100
2nd offense--$500Section 19.18(a)(3)(ii) Display lot not graded and surfaced with required material 1st offense--$100
2nd offense--$500Section 19.18(a)(3)(iii) Display area separated from adjacent parking area 1st offense--$100
2nd offense--$500Section 19.18(a)(3)(iv) Display area lighted if open evenings 1st offense--$100
2nd offense--$500Section 19.18(a)(5) Dealer fails to maintain separate telephone line 1st offense--$100
2nd offense--$500Section 19.18(a)(6) Business sign not permanent or visible to the public 1st offense--$100
2nd offense--$500Section 19.18(a)(7) Dealership in violation of land use ordinances 1st offense--$100
2nd offense--$500Section 19.18(a)(9) Failure to post business hours 1st offense--$100
2nd offense--$500
[Pa.B. Doc. No. 97-905. Filed for public inspection June 6, 1997, 9:00 a.m.]
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