216 R.I. Code R. 216-RICR-50-15-3.6

Current through October 15, 2024

Section 216-RICR-50-15-3.6 - Compliance and Enforcement

3.6.1Licenses and Certifications

A. Denial of Applications

1. Any person who neglects or refuses to pay an administrative fine or penalty cannot obtain or renew any Department-issued license or certification until all outstanding administrative fines or penalties have been paid.

2. The Department may deny an application for licensure or certification pursuant to this Part if the Department determines that the applicant has not complied with or has not demonstrated the ability to comply fully with all applicable requirements established by the Act and/or this Part.

3. If the applicant appeals the denial, a hearing will be scheduled in accordance with the provisions of § 3.6.11 of this Part.

B. Action against a License or Certification

1. The Department may restrict, limit, suspend, revoke, or take other disciplinary action against any license or certification issued pursuant to Part 11 of this Subchapter in accordance with R.I. Gen. Laws § 23-24.6-20(e) for noncompliance with this Part, including, but not limited to:

a. False representation of credentials as an appropriately licensed or certified lead professional;

b. Obtaining licensure or certification based on misrepresentation or fraud;

c. Using a license or certification for fraudulent, deceptive, or unethical purposes;

d. Failure to discharge activities in accordance with the Act or this Part, including employers who fail to comply with applicable OSHA requirements;

e. Failure to meet requirements of this Part and/or within the allotted time frame, including, but not limited to:

(1) Failure of a Lead Contractor or Lead Renovation Firm to distribute appropriate pre-renovation education information to owners and occupants required by EPA/HUD and this Part;

(2) Failure of a licensed lead professional to notify the Department of any changes to information submitted in an application for licensure or certification from the Department;

(3) Failure to successfully complete the training required by this Part; and/or

(4) Failure of a Lead Inspector, Lead Assessor, or Lead Renovator to distribute lead test results, lead inspection reports, and/or lead certificates in accordance with the requirements of Part 5 of this Subchapter.

f. Issuing fictitious results, reports, or certificates;

g. Failure to meet the terms or conditions of any notice, order, or consent agreement with the Department; and

h. Any good cause within the meaning and purpose of the Act or this Part.

2. A person whose license or certification was issued by reciprocity shall immediately notify the Department in writing of any final administrative action taken against the licensee by EPA or another jurisdiction during the term of said license. The Department may subject the license by reciprocity to such action taken by EPA or the other jurisdiction.

3. A person whose license or certification is restricted, limited, suspended, or revoked may request a hearing in accordance with the administrative procedures contained in § 3.6.11 of this Part.

4. Any person who is subject to a Cease Work Order has the right to request an administrative hearing, in writing, within thirty (30) days of the order.

5. No request for a hearing on an Immediate Compliance Order can be made.

3.6.2Failure to Comply

A. The following violations are acts of noncompliance for which the Department may initiate an enforcement response against an owner, their agent, or another regulated person:

1. Failure to maintain the premises of a regulated facility in a lead-safe condition;

2. Failure of a non-exempt residential rental unit or child care facility to have an appropriate lead certificate;

3. Failure to comply with the lead disclosure requirements in § 3.5 of this Part;

4. Failure to grant access to a premise for inspection by State Inspectors or the Department's duly authorized designees, upon presenting identification and appropriate credentials;

5. Failure to hire appropriately licensed or certified lead professionals to conduct regulated activities;

6. Failure of a person conducting regulated activities to be appropriately licensed or certified, pursuant to this Part 11 of this Subchapter;

7. Failure to comply with the requirements of any Department-issued or approved lead professional license or certification;

8. Failure to comply with the terms of any Department notice, order, or consent agreement and/or by the deadline specified in the notice, order, or consent agreement;

9. Failure to establish, maintain, and/or provide the Department access to the records required by this Part; and

10. Failure to adhere to any other applicable conditions or requirements of this Part.

3.6.3Enforcement Response

A. Whenever the Department determines that any person fails to comply with any requirements of the Act, this Part, or any Department-issued notice, order, consent agreement, license or certification, the Department may pursue enforcement action pursuant to this Part, to correct the noncompliance and/or impose a fine or penalty.

B. All fines and/or penalties will be assessed in accordance with the provisions of the Department's Penalty Matrix in § 3.6.5(C) of this Part below.

C. The Department can also refer the noncompliance to OSHA, EPA, HUD, the Rhode Island Department of Attorney General, other State agencies, district courts, and/or local municipalities for additional enforcement actions.

D. Nothing contained in this Section shall limit the Department from requiring immediate compliance with any and all terms of an order, when, in the Department's discretion, circumstances present an immediate risk to the health or safety of a child, workers in or occupants of a building toward which the order is directed, and/or the general public.

3.6.4Enforcement Options

A. Pursuant to the authorities defined in R.I. Gen. Laws Chapters 23-1 and 23-24.6, the Department may pursue any combination of administrative and/or judicial enforcement actions, depending upon the circumstances and gravity of each case, including, but not limited to:

1. Enforcement of compliance with this Part and the Act;

2. Determination and prioritization of properties with "clear and significant health risks" where there have been instances of childhood lead poisoning;

3. Issuance of compliance notices or orders, including but not limited to:

a. Notice of Violation;

b. Second Notice of Violation;

c. Notice of Noncompliance;

d. Cease Work Order; and/or

e. Immediate Compliance Order.

4. Assessment of administrative fines and penalties;

5. Recording a notice, order, or consent agreement as a Notice of LisPendens against the title of the property, and/or recording any outstanding fees or administrative penalties as a lien against the property with the Registry of Deeds in the municipality where the property is located;

6. Coordination of enforcement actions including, but not limited to the following State, Federal and local agencies:

a. Municipal building officials;

b. Municipal housing code enforcement;

c. Rhode Island Department of Environmental Management (DEM);

d. Rhode Island Contractor's Registration and Licensing Board (CRLB);

e. Rhode Island Department of Business Regulation (DBR);

f. US Environmental Protection Agency (EPA);

g. US Department of Housing and Urban Development (HUD); and/or

h. US Occupational Safety and Health Administration (OSHA).

7. Pursuit of criminal or civil remedies through the Department of Attorney General, district courts, or municipal courts;

8. Revocation, suspension, limitation, restriction, or other disciplinary action regarding a license or certification issued pursuant to Part 11 of this Subchapter; and/or

9. Invalidation of a lead certificate or inspection exemption issued pursuant to this Part 5 of this Subchapter; and/or

10. Suspension or revocation of database access for Lead Inspectors or Lead Assessors to issue lead certificates.

B. Nothing herein shall preclude the Department from resolving outstanding violations or penalties through a consent agreement at any time the Department deems appropriate.

C. The imposition of one (1) or more remedies and/or penalties provided shall not prevent the Department from jointly exercising any other remedy available, except:

1. Fines or penalties levied pursuant to R.I. Gen. Laws § 23-24.6-27 shall be in lieu of any administrative fines or penalties issued pursuant to R.I. Gen. Laws § 45-24.3-18(a), and

2. No municipality shall issue any fine or penalty for the same violation.

3.6.5Penalties

A. Applicability and Scope

1. Pursuant to the provisions of R.I. Gen. Laws § 23-24.6-27, the Department may impose an administrative fine or penalty of up to five thousand dollars ($5,000.00) per violation per day for each current or past violation of:

a. The Act or any Regulations promulgated pursuant to the Act; and/or

b. Any notices, orders, or consent agreements issued pursuant to the Act or this Part.

2. The Department, in its discretion, may adjust the fine or penalty upward or downward based on the criteria listed in this Section, provided that no fine or penalty exceeds five thousand dollars ($5,000.00) per violation per day.

B. Assessment of Fines and Penalties

1. The total amount of any administrative fine or penalty to be levied shall be calculated according to the guidelines in this Section and provided in the Department's Penalty Matrix in § 3.6.5(C) of this Part below.

2. The penalty may be based on the gravity of the violation. That portion will be calculated according to the applicable "Penalty Matrix" in § 3.6.5(C) of this Part. The applicable penalty range is reached by first determining the "Type of Violation" and the "Deviation from the Standard" of the alleged violation.

3. "Type of Violation" - refers to the nature of the legal requirement allegedly violated.

a. Type I violations include violations of legal requirements identified by the Department as directly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to:

(1) Acts which pose an actual or potential for harm to the public health, safety, welfare or the environment;

(2) Acts or failures to act which are of major importance to the regulatory program;

(3) Any failure to obtain a required license or approval from the Department;

(4) Any failure to report an unauthorized activity which actually or potentially threatens the public health, safety, welfare or the environment;

(5) Any failure to take remedial action to mitigate a known or suspected harm; and/or

(6) Any failure to comply with an order of the Department which is presently enforceable.

b. Type II violations include violations of legal requirements identified by the Department as important but indirectly related to the protection of the public health, safety, welfare or environment. Such violations include, but are not necessarily limited to:

(1) Acts which pose an indirect actual or potential for harm to the public health, safety, welfare or the environment;

(2) Acts or failures to act which are of moderate importance to the regulatory program; and/or

(3) Failure to comply with any procedure required by any law administered by the Department, or by a Rule or Regulation adopted pursuant to the Department's authority for the prevention of harm to the public health, safety, welfare or the environment.

c. Type III violations include violations of legal requirements identified by the Department as important but incidental to the protection of public health, safety, welfare or the environment. Such violations include, but are not necessarily limited to:

(1) Acts of noncompliance with inspection standards, reporting requirements or methods which are incidental to the Department's ability and obligation to enforce the laws administered by the Department.

4. "Deviation of the standard" - refers to the degree to which the violation is out of compliance with the legal requirement allegedly violated. The Deviation from the Standard may be determined without consideration of factor (I) enunciated below in cases of strict liability. In all other cases, the Department's assessment of whether a violation is a minor, moderate or major deviation from the standard is based upon an evaluation of one (1) or more of the following factors except to the extent already considered:

a. The extent to which the act or failure to act was out of compliance;

b. Environmental conditions;

c. The amount of the pollutant;

d. The toxicity or nature of the pollutant;

e. The duration of the violation;

f. The areal extent of the violation;

g. Whether the person took reasonable and appropriate steps to prevent and/or mitigate the non-compliance;

h. Whether the person has previously failed to comply with any Regulations, order, statute, license, permit or approval issued or adopted by the Department, or any law which the Department has the authority or responsibility to enforce;

i. The degree of willfulness or negligence, including but not limited to, how much control the violator had over the occurrence of the violation and whether the violation was foreseeable;

j. Any other factor(s) that may be relevant in determining the amount of a penalty, provided that said other factor(s) shall be set forth in the Notice of Violation or other written notice of the assessment of a penalty.

C. Penalty Matrix

TYPE OF VIOLATION
		I	II	III
MAJOR	Up to $5,000.00	Up to $2,500.00	Up to $1,000.00
DEVIATION FROM THE STANDARD	MODERATE	$2,500.00 To $1,000.00	$1,000.00 To $500.00	$500.00 To $100.00
MINOR	Up to $1,000.00	Up to $500.00	Up to $100.00

1. Multiple Violations. For the purposes of determining the total administrative fine or penalty to be assessed:

a. Each violation at any premises may, within the Department's discretion, be considered as a separate violation.

b. When multiple violations of this Part or of any notice, order, or consent agreement issued by the Department are to be counted as separate violations, each act is counted as separate and distinct from any other act:

(1) By its nature;

(2) Time or place; or

(3) Risk of harm to the public health.

c. When applicable, the period for calculating the fine or penalty for a violation begins on the day following the:

(1) Receipt or posting of a notice or order issued by the Department;

(2) Expiration of a compliance period;

(3) Expiration of a consent agreement; or

(4) Expiration of an extension of a compliance period or consent agreement.

d. Each day of a continued violation may be considered a separate violation and compounded for each day during which the violation is repeated, continued, or remains in place.

D. Criteria for Assessment of Fines and Penalties

1. In deciding whether to assess an administrative fine or penalty the Department, in its discretion, may weigh the relevance of each factor in any case, as well as the amount of any such administrative fine or penalty. The Department shall consider, but not be limited to, the following:

a. The ability of the violator to comply;

b. The willfulness of the violation(s);

c. The total number of violations;

d. The cumulative number of days of noncompliance;

e. Any prior record of noncompliance with any Regulation, notice, order, consent agreement, license or certification issued or adopted by the Department;

f. The economic benefit derived by the violator from noncompliance;

g. Any costs incurred by the State related to the investigation and enforcement of the noncompliance;

h. The ability of the violator to pay potential fines and penalties;

i. Actual or potential injury to public health and safety; and/or

j. Any other factors that the Department considers relevant.

E. Payment of Fines and Penalties

1. Unless another time period is specified in the Department's order, any administrative fine or penalty assessed pursuant to this Section shall be due and payable within thirty (30) days of service of the notice of the order.

2. If the person named in the order requests a hearing, pursuant to R.I. Gen. Laws Chapter 23-24.6, within thirty (30) days of receipt of the notice of the order the thirty (30) day payment period shall be stayed pending a hearing on the matter.

3. All payments must be made in the form of a cashier's check, certified check, money order, or any other method approved by the Department, payable to: General Treasurer, State of Rhode Island.

F. Failure to Pay

1. If, after demand, any person assessed an administrative fine or penalty pursuant to this Section neglects or refuses to pay, the assessed amount together with interest and any other costs that may accrue will be a lien filed in favor of the State upon:

a. The violator's current and future Rhode Island income tax refunds; and/or

b. The violator's real property subject to the order, recorded with the Registry of Deeds in the municipality where the property is located.

3.6.6Extension of Compliance Period

A. Requests for extensions to the compliance period specified in a Department- issued notice, order, or consent agreement, shall be made in writing to the Department.

B. Extensions may be granted, at the discretion of the Department, based on the circumstances of a case and if an extension is not considered to pose a threat to the health or safety of children, other occupants of the building, and/or the general public.

C. Owners who request an extension to the compliance period specified in a Department-issued notice or order, shall enter into a consent agreement with the Department and complete temporary lead hazard control measures within a time frame approved by the Department.

D. In deciding whether to grant an extension, as well as any condition(s) attached to such an extension, the Department shall consider, but not be limited to, the following factors:

1. The current threat to public health posed by the violation(s);

2. The severity of the violation(s);

3. The progress made toward correcting the violation(s); and

4. Any prior or concurrent instances of noncompliance by the person named in the notice, order, or agreement.

E. Persons, who fail to comply with the terms of this Part, or a Department-issued notice, order, or consent agreement, may be subject to additional escalated enforcement action by the Department, DEM, CRLB, OSHA, Department of the Attorney General, and/or the municipality where the violation occurred.

F. Unless an extension is granted by the Department in writing, the Department may assess a fine or penalty for failure to comply with this Part, or a Department-issued notice, order, or consent agreement, by the compliance period or deadline specified in a Department-issued notice, order, or consent agreement.

G. The Department may declare any extension granted pursuant to this Section immediately null and void if the Department determines that the terms of the notice, order, or consent agreement have been violated.

3.6.7Injunctive Relief

A. If an owner fails to comply with the lead-safe standards of Part 5 of this Subchapter, as applicable:

1. Households of an "at risk occupant" may seek injunctive relief from a court with jurisdiction against the owner in the form of a court order to compel compliance with the requirements for lead hazard mitigation, lead hazard control or lead hazard reduction, as applicable.

2. Such cases brought before the court shall be granted an accelerated hearing.

3.6.8Equal Access to Justice The Department's Rules and Regulations Relating to Equal Access to Justice (Part 10-05-3 of this Title) define the process and procedures to carry out the provisions of R.I. Gen. Laws Chapter 42-92 and provide for equal access to justice for small businesses and individuals.

3.6.9Declaratory Rulings

A. In accordance with R.I. Gen. Laws § 42-35-8, any person affected by any statutory provision administered by the Department or affected by any Rule or order of the Department and this Part, may petition the Department for a declaratory ruling as to the applicability of such statute, Rule or order. The petition shall clearly and concisely identify:

1. The precise statute, Rule, or order under which a declaratory ruling is sought;

2. How the petitioner is affected by the statute, Rule, or order; and

3. The petitioner's position on how the applicable statute, Rule, or order should be interpreted, including citations to any applicable documents or law that support the petitioner's position.

3.6.10Variance from this Part

A. A variance from compliance with one (1) or more provisions of this Part may be granted by the Department in a specific case, either upon its own motion or upon the request of an applicant, if the Department determines that a literal enforcement of the provision(s) would result in unnecessary hardship to a regulated person and that such a variance will not be contrary to the public health or public interest.

B. A request for a variance must be filed by an applicant in writing, setting forth in detail the basis upon which the request is made. The applicant must further certify that the measures taken pursuant to the variance will be as protective of public health as this Part.

C. After filing of a request for a variance with the Department, and within thirty (30) days thereafter, the Department shall notify the applicant of its approval or denial, unless the Department has indicated that additional time is needed.

D. If the applicant appeals the denial, a hearing will be scheduled in accordance with the provisions of § 3.6.11 of this Part.

E. The Department may declare any variance granted pursuant to this Section immediately null and void if the Department determines that the terms of the variance have been violated.

3.6.11 Administrative Hearing and Judicial Review

A. Any person who is subject to enforcement action by the Department or who is otherwise aggrieved by a final decision of the Department has the right to request an administrative hearing to contest the action or decision, provided that no request for a hearing on an immediate compliance order issued pursuant to R.I. Gen. Laws § 23-1-21 may be made.

B. Any request for a hearing must be made in writing and must be received by the Department within thirty (30) days of service of the Department's notice or order. Failure to make a timely request for a hearing or electing to waive such a hearing shall result in a final order of the Department.

C. If a timely request for a hearing is made, the hearing shall be conducted in accordance with the provisions of R.I. Gen. Laws Chapter 42-35 and Rules and Regulations Governing the Practices and Procedures before the Department of Health (Part 10-05-4 of this Title).

D. Judicial review of any final decision of the Administrative Hearing Officer shall be available in accordance with R.I. Gen. Laws § 42-35-15.

216 R.I. Code R. 216-RICR-50-15-3.6

Amended effective 1/2/2022