Section 641.70.10. Denial, suspension, or revocation of certification; denial, suspension, revocation, or modification of course approval; and imposition of penalties.

       70.10(1) When the department finds that the applicant, certified lead professional, certified elevated blood lead (EBL) inspection agency, or certified firm has committed any of the following acts, the department may deny an application for certification, may suspend or revoke a certification, may prohibit specific work practices, may require a project conducted by persons or firms that are not certified or a project where prohibited work practices are being used to be halted, may require the cleanup of lead hazards created by the use of prohibited work practices, may impose a civil penalty, may place on probation, may require additional education, may require reexamination of the state certification examination, may issue a warning, may refer the case to the office of the county attorney for possible criminal penalties pursuant to Iowa Code section 135.38, or may impose other sanctions allowed by law as may be appropriate.

        a.           Failure or refusal to comply with any requirements of this chapter.

        b.           Failure or refusal to establish, maintain, provide, copy, or permit access to records or reports as required by rules 641—70.3(135) to 70.7(135).

        c.           Failure or refusal to permit entry or inspection as described in subrules 70.9(1) to 70.9(3).

        d.           Obtaining certification through fraudulent representation.

        e.           Failure to obtain certification from the department and performing work requiring certification.

        f.            Fraudulently obtaining certification and engaging in any lead-based paint activities requiring certification.

        g.           Conducting any part of a lead-based paint activity that requires certification without being certified or with a certification that has lapsed.

        h.           Obtained documentation of training through fraudulent means.

        i.            Gained admission to an accredited training program through misrepresentation of admission requirements.

        j.            Obtained certification through misrepresentation of certification requirements or related documents pertaining to education, training, professional registration, or experience.

        k.           Performed work requiring certification at a job site without having proof of current certification.

        l.            Permitted the duplication or use of the individual’s or firm’s own certificate by another.

        m.          Failed to follow the standards of conduct required by 641—70.6(135).

        n.           Failed to comply with federal, state, or local lead-based paint statutes and regulations, including the requirements of this chapter.

        o.           Performed work for which certification is required with employees or persons under the control of the certified elevated blood lead (EBL) inspection agency or certified firm who were not appropriately certified.

        p.           Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of lead professional activities or engaged in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established.

        q.           Used untruthful or improbable statements in advertisements. This includes, but is not limited to, an action by a lead professional making information or intention known to the public that is false, deceptive, misleading, or promoted through fraud or misrepresentation.

        r.           Falsified reports and records required by this chapter.

        s.           Accepted any fee by fraud or misrepresentation.

        t.            Negligence by the firm or individual in the practice of lead professional activities. This includes a failure to exercise due care, including negligent delegation of duties or supervision of employees or other individuals, whether or not injury results; or any conduct, practice, or conditions that impair the ability of the firm or individual to safely and skillfully practice the profession.

        u.           Revocation, suspension, or other disciplinary action taken by a certification or licensing authority of this state, another state, territory, or country; or failure by the firm or individual to report such action in writing within 30 days of the final action by such certification or licensing authority. A stay by an appellate court shall not negate this requirement; however, if such disciplinary action is overturned or reversed by a court of last resort, the report shall be expunged from the records of the board.

        v.           Failed to comply with the terms of a department order or the terms of a settlement agreement or consent order.

        w.          Representation by a firm or individual that the firm or individual is certified when the certification has been suspended or revoked or has not been renewed.

        x.           Failed to respond within 20 days of receipt of communication from the department that was sent by registered or certified mail.

        y.           Engaged in any conduct that subverts or attempts to subvert a department investigation.

        z.           Failed to comply with a subpoena issued by the department or failure to cooperate with a department investigation.

        aa.         Failed to pay costs assessed in any disciplinary action.

        ab.         Been convicted of a felony or misdemeanor related to lead professional activities or the conviction of any felony or misdemeanor that would affect the ability of the firm or individual to perform lead professional activities. A copy of the record of conviction or plea of guilty shall be conclusive evidence.

        ac.         Unethical conduct. This includes, but is not limited to, the following:

       (1)             Verbally or physically abusing a client or coworker.

       (2)             Improper sexual conduct with or making suggestive, lewd, lascivious, or improper remarks or advances to a client or coworker.

       (3)             Engaging in a professional conflict of interest.

       (4)             Mental or physical inability reasonably related to and adversely affecting the ability of the firm or individual to practice in a safe and competent manner.

       (5)             Being adjudged mentally incompetent by a court of competent jurisdiction.

       (6)             Habitual intoxication or addiction to drugs.

        1.            The inability of a lead professional to practice with reasonable skill and safety by reason of the excessive use of alcohol on a continuing basis.

        2.            The excessive use of drugs which may impair a lead professional’s ability to practice with reasonable skill or safety.

        3.            Obtaining, possessing, attempting to obtain or possess, or administering controlled substances without lawful authority.

       70.10(2) Reserved.

       70.10(3) The department may deny, suspend, revoke, or modify the approval for a course, or may place on probation, or impose other sanctions allowed by law as may be appropriate, or may impose a civil penalty or may refer the case to the office of the county attorney for possible criminal penalties pursuant to Iowa Code section 135.38 when it finds that the training program, training manager, or other person with supervisory authority over the course has committed any of the following acts:

        a.           Misrepresented the contents of a training course to the department or to the student population.

        b.           Failed to submit required information or notifications in a timely manner.

        c.           Failed to maintain required records.

        d.           Falsified approval records, instructor qualifications, or other information or documentation related to course approval.

        e.           Failed to comply with the training standards and requirements in 641—70.4(135).

        f.            Made false or misleading statements to the department in its application for approval or reapproval which the department relied upon in approving the application.

        g.           Failed to comply with federal, state, or local lead-based paint statutes and regulations, including the requirements of this chapter.

        h.           Knowingly made misleading, deceptive, untrue, or fraudulent representations in the practice of conducting a training program or engaged in unethical conduct or practice harmful or detrimental to the public. Proof of actual injury need not be established.

        i.            Used untruthful or improbable statements in advertisements. This includes, but is not limited to, an action by a training program making information or intention known to the public that is false, deceptive, misleading, or promoted through fraud or misrepresentation.

        j.            Falsified reports and records required by this chapter.

        k.           Accepted any fee by fraud or misrepresentation.

        l.            Revocation, suspension, or other disciplinary action taken by a certification or licensing authority of this state, another state, territory, or country; or failure by the firm or individual to report such action in writing within 30 days of the final action by such certification or licensing authority. A stay by an appellate court shall not negate this requirement; however, if such disciplinary action is overturned or reversed by a court of last resort, the report shall be expunged from the records of the board.

        m.          Failed to comply with the terms of a department order or the terms of a settlement agreement or consent order.

        n.           Failed to respond within 20 days of receipt of communication from the department that was sent by registered or certified mail.

        o.           Engaged in any conduct that subverts or attempts to subvert a department investigation.

        p.           Failed to comply with a subpoena issued by the department or failure to cooperate with a department investigation.

        q.           Failed to pay costs assessed in any disciplinary action.

       70.10(4) Complaints and other requests for action under this rule. Complaints regarding a certified lead professional, a certified elevated blood lead (EBL) inspection agency, a certified firm, or an approved course shall be submitted in writing to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075. The complainant shall provide:

        a.           The name of the certified lead professional, certified elevated blood lead (EBL) inspection agency, or certified firm and the specific details of the action(s) by the certified lead professional, certified elevated blood lead (EBL) inspection agency, or certified firm that did not comply with the rules; or

        b.           The name of the lead professional or firm that conducted lead professional activities without the appropriate certification or approval as required by the rules; or

        c.           The name of the sponsoring person or organization of an approved course and the specific way(s) that an approved course did not comply with the rules; or

        d.           The name of the sponsoring person or organization that provided a course without the approval required by these rules.

       70.10(5) Civil penalties.

        a.           Before instituting any proceeding to impose a civil penalty under Iowa Code section 135.105A, the department shall serve a written notice of violation upon the person charged. The notice of violation shall specify the date or dates, facts, and the nature of the alleged act or omission with which the person is charged and shall identify specifically the particular provision or provisions of the law, rule, regulation, certification, approval, or cease and desist order involved in the alleged violation and must state the amount of each proposed penalty. The notice of violation shall also advise the person charged that the civil penalty may be paid in the amount specified therein, or the proposed imposition of the civil penalty may be protested in its entirety or in part, by a written answer, either denying the violation or showing extenuating circumstances. The notice of violation shall advise the person charged that upon failure to pay a civil penalty subsequently determined by the department, if any, unless compromised, remitted, or mitigated, the fee shall be collected by civil action, pursuant to Iowa Code section 135.105A.

        b.           Within 20 days of the date of a notice of violation or other time specified in the notice, the person charged may either pay the penalty in the amount proposed or answer the notice of violation. The answer to the notice of violation shall state any facts, explanations, and arguments denying the charges of violation, or demonstrating any extenuating circumstances, error in the notice of violation, or other reason why the penalty should not be imposed and may request remission or mitigation of the penalty.

        c.           If the person charged with violation fails to answer within the time specified in paragraph 70.10(5)“b,” an order may be issued imposing the civil penalty in the amount set forth in the notice of violation described in paragraph 70.10(5)“a.”

        d.           If the person charged with violation files an answer to the notice of violation, the department, upon consideration of the answer, will issue an order dismissing the proceeding or imposing, mitigating, or remitting the civil penalty. The person charged may, within 20 days of the date of the order or other time specified in the order, request a hearing.

        e.           If the person charged with violation requests a hearing, the department will issue an order designating the time and place of hearing. The hearing shall be conducted according to the procedural rules of the department of inspections and appeals found in 481—Chapter 10, Iowa Administrative Code.

        f.            If a hearing is held, an order will be issued after the hearing by the presiding officer or the department dismissing the proceeding or imposing, mitigating, or remitting the civil penalty.

        g.           The department may compromise any civil penalty. If the civil penalty is not compromised, or is not remitted by the presiding officer or the department, and if payment is not made within ten days following either the service of the order described in paragraph 70.10(5)“c” or “f,” or the expiration of the time for requesting a hearing described in paragraph 70.10(5)“d,” the department may refer the matter to the attorney general for collection.

        h.           Except when payment is made after compromise or mitigation by the department of justice or as ordered by a court of the state, following reference of the matter to the attorney general for collection, payment of civil penalties imposed under Iowa Code section 135.105A shall be made by check, draft, or money order payable to the Iowa Department of Public Health.

       70.10(6) Appeals.

        a.           Notice of denial, suspension or revocation of certification, or denial, suspension, revocation, or modification of course approval shall be sent to the affected individual or organization by restricted certified mail, return receipt requested, or by personal service. The affected individual or organization shall have a right to appeal the denial, suspension or revocation.

        b.           An appeal of a denial, suspension or revocation or other disciplinary action shall be submitted by certified mail, return receipt requested, within 20 days of the receipt of the department’s notice to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075. If such a request is made within the 20-day time period, the notice of denial, suspension or revocation or other disciplinary action shall be deemed to be suspended. Prior to or at the hearing, the department may rescind the notice upon satisfaction that the reason for the denial, suspension or revocation or other disciplinary action has been or will be removed. After the hearing, or upon default of the applicant or alleged violator, the administrative law judge shall affirm, modify or set aside the denial, suspension or revocation or other disciplinary action. If no appeal is submitted within 20 days, the denial, suspension or revocation or other disciplinary action shall become the department’s final agency action.

        c.           Upon receipt of an appeal that meets contested case status, the appeal shall be transmitted to the department of inspections and appeals within five working days of receipt pursuant to the rules adopted by that agency regarding the transmission of contested cases. The information upon which the denial, suspension or revocation is based shall be provided to the department of inspections and appeals.

        d.           The hearing shall be conducted according to the procedural rules of the department of inspections and appeals found in 481—Chapter 10, Iowa Administrative Code.

        e.           When the administrative law judge makes a proposed decision and order, it shall be served by restricted certified mail, return receipt requested, or delivered by personal service. The proposed decision and order then becomes the department’s final agency action without further proceedings ten days after it is received by the aggrieved party unless an appeal to the director is taken as provided in paragraph 70.10(6)“f.”

        f.            Any appeal to the director for review of the proposed decision and order of the administrative law judge shall be filed in writing and mailed to the director by certified mail, return receipt requested, or delivered by personal service within ten days after the receipt of the administrative law judge’s proposed decision and order by the aggrieved party. A copy of the appeal shall also be mailed to the administrative law judge. Any request for appeal shall state the reason for appeal.

        g.           Upon receipt of an appeal request, the administrative law judge shall prepare the record of the hearing or submission to the director. The record shall include the following:

       (1)             All pleadings, motions, and rulings.

       (2)             All evidence received or considered and all other submissions by recording or transcript.

       (3)             A statement of all matters officially noticed.

       (4)             All questions and offers of proof, objection, and rulings thereon.

       (5)             All proposed findings and exceptions.

       (6)             The proposed findings and order of the administrative law judge.

        h.           The decision and order of the director becomes the department’s final agency action upon receipt by the aggrieved party and shall be delivered by restricted certified mail, return receipt requested, or by personal service.

        i.            It is not necessary to file an application for a rehearing to exhaust administrative remedies when appealing to the director or the district court as provided in Iowa Code section 17A.19. The aggrieved party to the final agency action of the department who has exhausted all administrative remedies may petition for judicial review of that action pursuant to Iowa Code chapter 17A.

        j.            Any petition for judicial review of a decision and order shall be filed in the district court within 20 days after the decision and order becomes final. A copy of the notice of appeal shall be sent to the department by certified mail, return receipt requested, or by personal service to the Iowa Department of Public Health, Lead Poisoning Prevention Program, 321 East 12th Street, Des Moines, Iowa 50319-0075.

        k.           The party who appeals a final agency action to the district court shall pay the cost of the preparation of a transcript of the contested case hearing for the district court.

       70.10(7) Public notification.

        a.           The public shall be notified of the suspension, revocation, modification, or reinstatement of course approval through appropriate mechanisms.

        b.          The department shall maintain a list of courses for which the approval has been suspended, revoked, modified, or reinstated.

        c.           The public shall be notified of the suspension or revocation of the certification of a lead professional or firm.

        d.           The department shall maintain a list of lead professionals and firms for which certification has been suspended or revoked.

[ARC 8502B, IAB 2/10/10, effective 1/13/10]