36-183.04. Notice of violation; civil penalties; administrative hearings

A. If the director of a local health department, county environmental department or public health services district has reason to believe that a person has violated this article or a sanitary ordinance or regulation, the director may issue a notice of violation and demand for compliance by certified or registered mail or by hand delivery to the respondent.

B. The notice of violation and demand for compliance must state with reasonable specificity the nature of the violation and the deadline for compliance. The notice of violation shall also state that the respondent may request a hearing.

C. Unless the respondent either complies within the stated deadline or requests a hearing within fifteen days after service of the notice of violation and demand for compliance, the director of the local health department, county environmental department or public health services district may issue a compliance order consistent with the terms of the notice of violation.

D. The director of a local health department, county environmental department or public health services district may appoint a hearing officer to conduct a hearing pursuant to this section. Hearings held pursuant to this section shall be conducted in the same manner as hearings are conducted pursuant to title 41, chapter 6, article 6. The hearing officer shall either issue or deny a compliance order and shall make a finding regarding a civil penalty.

E. A compliance order issued pursuant to this section is final and enforceable in superior court unless the respondent files an appeal to the director of the local health department, county environmental department or public health services district within fifteen days after receiving the compliance order.

F. On appeal, the director may affirm, modify or vacate the hearing officer's decision. The director shall consider the factors prescribed in subsection H. The director's decision is enforceable as a judgment in superior court. The director's decision is subject to appeal pursuant to title 12, chapter 7, article 6.

G. A compliance order issued pursuant to this section may provide for a civil penalty of not more than seven hundred fifty dollars for each violation by an individual and not more than five thousand dollars for a violation by an enterprise. A compliance order shall not impose a civil penalty for the same acts for which a court has previously imposed a civil or criminal penalty.

H. In determining the amount of a civil penalty under this section, the director and the hearing officer shall consider the following:

1. The seriousness of the violation.

2. As an aggravating factor only, any economic benefit that results from the violation.

3. The history of that violation.

4. The economic impact of the penalty on the violator.

5. Any good faith efforts to comply with the applicable requirements.

6. The duration of the violation as established by any credible evidence.

7. Payment by the violator of penalties previously assessed for the same violation.

8. Other factors affecting the public health and safety the director deems relevant.

I. The director of the local health department, county environmental department or a public health services district shall deposit all penalties collected pursuant to this section in the general fund of the county where the action was initiated.